18 LawTotal 30september2016

(2016) 2 LAW
RNI No. APENG/2005/18975
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ISSN 2277 8829
A world law fortnightly published from Hyderabad, India.
Editor: I. Mallikarjuna Sharma

ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India),
R.V.R. Chandrasekhara Rao (Politics Professor), V.V. Reddy (Economics Professor),
K. Subba Rao (Senior Advocate, Bangalore), Umesh Chandra (Sr. Advt., Lucknow), Ravi Kiran Jain (Sr. Advt., Allahabad),
K. Pratap Reddy (Sr. Advt., Hyderabad), Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium)
Volume 12: Part 2
30 September 2016
INSURGENCY AND SURGICAL STRIKES
CONTENTS
1. Insurgency and Surgical Strikes 1
2. Historical inevitability or
2,
Electoral corruption? (51) [IMS] 75
3. Political Trouble in India :
1910-1917, J.C. Ker (3)
3-6
4. Free Speech and Sedition
7-9
S. Sriram
5. Right to Information: My
Conception, V. Rajagopal Reddy
6. Your Money or Your Life!
10
11-14
John W. Whitehead
7. Secretary of State for Home

v Vomero (Italy) [UK-SC] 15-23
8. MB v Secretary of State for
Work & Pensions [UK-SC] 24-28
9. R (Public Law Project) v
29-32,
Lord Chancellor [UK-SC] 45-48
10. Youth Bar Association of
India v. UoI & Ors. [IND-SC] 33-35
11. Ajay Arjun Singh v.
S.Tiwari & Ors. [IND-SC] 36-44
12. Ministry of Defence v
Iraqi Civilians [UK-SC] 49-53
13. McBride v Scottish Police
Authority (Scotland) [UK-SC] 54-62
14. US to break BRICS: Rape
of Brazil Begins, Engdahl 63-65
15. Can Russia lean from
Brazils fate?, PCR & M. Hudson 66
16. Bring Back the Cold War!
67-70
Paul Craig Roberts
17. The Unknown Life of Jesus

Christ (9), Nicolas Notovitch 71-74
18. Poems, Kenji Miyazawa
76
Editorial Office: 6-3-1243/156,
M.S. Makta, Opposite Raj Bhavan,
HYDERABAD - 500 082.
Ph: 23300284; E-mail: mani.bal44@gmail.com
Please donate Rs. 50/- or more.
No. 18
Courtesy: India 24x7
Tarek Fatah
Hafiz Saeed vowing vengeance
Indian Army
spokesman asserting
Pak army spokesman denying
Courtesy: India TV
Justice Katju
With the understanding of, and to an extent even an admission of, the saying:
One mans terrorist is another mans freedom fighter, the situation in Jammu and
Kashmir is very peculiar in that only about 16% of our controlled state area
falls in the Kashmir valley, and only 5-6 districts in it are heavily insurgencyinfested. Jammu envelops 26% and Ladakh more than 50%, and are relatively
peaceful, shun such militancy and moreover are eager to fully integrate with
India. True, population-wise Kashmiri Muslims form about 50% of the total
that due to Indias credit which never disturbed the population proportion in
the valley; rather it is the so-called azadiwallahs who ethnically cleansed the
valley of Kashmiri Pundits in the 1990s itself. Then, as Tarek Fatah asserts,
the people of POK too dont seem enamored of their Paki connection and there
is an agitation in Gilgit-Baltistan for its azadi. As such, Justice Katjus
comparison of the militancy in the valley with the Vietnamese guerilla war is
quite misplaced; the Kashmiri Muslims cries for azadi is just an infatuation
with fundamentalist Islam and not the love for any Kashmiriyat, and a real
danger exists of their being reduced to a slave status in any Mustafa Raj.
However, the Indian Government and Army too have not done it well by
shouting from housetops about the so-called surgical strikes carried out in
retaliation for the Pakistan inspired, if not directed, attacks; such audacity can
be termed a most stupid measure for any wise statesman or military strategist.
Surprisingly, Pakistan has also bungled by refusing to admit any such strikes
happening, and just tries to degrade those as repetition of the longstanding
LoC violations and blames India for not letting UN military observers inspect
and report on the same. At the same time, the manner the Pakistani politicians
including their prime and defence ministers as also the fanatic Hafiz Saeed and
other leaders of the terrorist outfits nurtured by them reacted, shows that
something very damaging to their plans, forces and dependant terrorist circles
occurred due to these surgical strikes and for some reasons, perhaps
including avoidance of public disgrace, they cling on to denials. However, it
should also be noted that any armed force or terrorist group planning well and
carrying out surprise attacks always has the initial advantage but that should
not be taken as a decider in any war or longstanding conflict. As repeatedly
asserted in this journal, only a wise and sane course building bridges with
China to neutralize any danger from it, negotiating with Pakistan to come to
an underhand deal for any rational partition, and, by conduct of region-wise
plebiscite, lending it an official and international stamp of approval could be
the real solution for this Ravanasura Kaashta-like conflict.
NOTE: The opinions and comments in the editorials are exclusively the Editors and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
(2016) 2 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

[Tracing the history of Andhra, Visalandhra and separate Telangana movements]
talking to officers like Deputy Tahsildar, etc. and

wish to talk to higher (district) officers too. Such
people cannot run away and escape forever but will
certainly be found [and caught] some day.
Officers and government personnel: To catch the
rebels and quell the rebellion competent police and
government officers were deployed but from
among them, unfortunately, two European officers,
Translated, the above write-up by Aryaprabha

would read:
It is said that this rebellion has begun on the
fateful attack time of Sani (Saturn) in Dundhubi
Telugu year, Ashadha month, which would be 22
August 1922. The origin of this rebellion is at
Chintapalli, which is about 30 miles distant from
Narsipatnam, Visakhapatnam district, and falls in
Manyam (Agency) and it is said among the Koya
tribals of Chintapalli there are some [descendants
of] Mannem (tribal) lords.
Rebels: Garitam Dora, a resident of Sanalapalem,
lying amidst intractable region of Gudem hills,
Mallu Dora and Mottadam Veeraiah, of Gudem,
these three are the known rebels till now. It is also
said that their leader is one Srirama Raju belonging
to the Alluri family of Mogallu village,
Bhimavaram taluka of Krishna district; and it is
said Raju is a multi-lingual [scholar] and the Koya
tribals are his army.
Rebel centres: Rebel centers are in Godavari,
Visakhapatnam districts, in impassable forest
agency regions, and quite far from any towns. As
of now, it seems that Lambasingi, Chintapalli,
Kommangi, Vanjarghat, Rampulghat, Krishnadevu
Peta, Rajavommangi, Pedda Valasa, Damanapalli,
Notanapalem, Gudem, Addatigala, Paidiputta,
Ramavaram, Rampa Chodavaram, etc. are centers
frequented by the itinerant rebels. All these are at
about 30 to 100 miles distance from Narsipatnam,
or Tuni, or Peddapuram, and many people from our
regions do not even know that such villages exist in
these agency areas.
Nature of the rebels: We dont know anything about
whether the rebels are sturdy fighters, or are armed
or unarmed, or cowards or wizards, etc. However,
their quarrel with the government reminds us of a
ram striking against a big hill. And there are rumors
galore about the rebel leader that he is a person
who keeps pet tigers, that he is a great Yogi
(ascetic) who doesnt take food at all, that he is the
great mentor for the Koyas, the Manyam lords. It is
also known that the rebels do not fleece the people
nor they seek any money. Whoever counters them
with arms is being disarmed by them, and they are
- I. Mallikarjuna Sharma
Hayter and Scott Coward, as also some police personnel,

were killed by the rebels. Further the Agency Assistant
Commissioner TREMENHEIR and the Agency
Commissioner STUART are said to have escaped, by
a hairs breadth, from a fire arms hazard and a tiger

hazard respectively! And one Bastien escaped from a
thorny danger ( )! Right at this time, eminent
leaders like Sweney1 and some police personnel too
are receiving medical treatment, affected by high
fevers and smallpox etc. and some for bullet
injuries. In addition to these officers and men, there
are competent White officers like Argitage, Keyne,
Happell, Napp, Sparks who have taken up the job
and they have army in sufficient numbers to assist
them. In addition, there are government officers
like Abdul Aziz (called Aggi Dora, fire-lord),
Nandakishore Padi, Bastien et al, who worked in
Agency areas and acquired sufficient experience
and knowledge of the inner accounts of the tribals.
And these persons know a lot many forest strategies
and so if the government takes them along and
searches for the rebels, we are sure they can be
found and caught soon.
1
Continued from Law Animated World, 31-08-2016 issue;

emphases in bold ours - IMS.
Most probably Cyril Edward Sweney, Superintendent,

Madras Police honoured by King George V with Bar to
Kings Police Medal in 1924 having been already
awarded Kings Police Medal once in 1917 when he was
Acting Superintendent, Madras Police. He is said to have
mentioned in a secret report in February 1924 that the
latest information (quite uncorroborated) about the Raju
is that he is a member of some Calcutta secret society
which is engaged in the manufacture of bombs, etc., and
that having come under the notice of the police, he
returned to his native haunts. Ponnaluri Radhakrishna
Murthy in his book on Raju stated that Srirama Raju
chanced to meet a revolutionary leader, Prithvi Singh,
who introduced him to a secret society at Chittagong and
enthused him in revolutionary activities. Regrettably, no
or very little research is done into this aspect of Rajus
history. - IMS.
(Go to p. 75)
Law Animated World, 30 September 2016
POLITICAL TROUBLE IN INDIA, 1907-1917

James Campbell Ker
consequences the sixtieth would [2] certainly see

the end of British rule in India. The present volume
CHAPTER I
INTRODUCTORY
is mainly devoted to the period between the two

anniversaries.
The object of this book is to give, within the

limits of a single volume of moderate size, a
connected account of seditious and anarchist
activity in India between the years 1907 and
1917. The Indian Mutiny, to which references were
constantly made in Indian revolutionary
publications of all kinds, broke out in Meerut, in the
United Provinces, on the 10th of May, 1857, and with
their customary veneration for anniversaries the
Hindu revolutionary [anarchist] leaders have always
regarded this date as particularly auspicious.
CONSTITUTIONAL AGITATORS
While sedition and revolution from the

principal theme, it will not, of course, be assumed
that every person who is mentioned in the following
pages is to be regarded as a anarchist conspirator. It
has been necessary occasionally to bring in the

names of persons who strenuously represent
themselves to be moderate and constitutional in all their
doings, and by their inclusion here nothing is imputed to
them beyond what is stated in the text; as to what that
Special importance was naturally attached to the fiftieth

anniversary, which marks roughly the beginning of
the modern phase of revolutionary activity in India. Ten
years earlier, a few weeks after the fortieth anniversary,
the Jubilee Murders were committed in Poona; but
amounts to in each particular case the reader is

left to form his own opinion.
CENTRES OF CONSPIRACY
It would be impossible to follow the ramifications

of every conspiracy in detail, and any attempt to do so,
instead of making things clearer, would only tend to
confusion; the plan has accordingly been adopted
while the spirit that prompted the assassination of

Mr. Rand was nationalist and anarchist, the
proximate cause of the murders was the
unpopularity of the plague measures which were
being enforced in Poona at the time, and there
was apparently no plan ready for a general rising.
of focussing attention on what became at

different times the most important centre of
conspiracy, and describing the leading members
and the most remarkable of the schemes they
attempted or carried out. Thus the centres of
ANNIVERSARIES OF THE MUTINY
As will appear later in this chapter, there is

very little doubt that, in the Punjab at least, a serious
conspiracy in Calcutta, Dacca, London, Paris, and San

Francisco, are taken up separately, and it will be
observed that the lines of propagation of the anarchist
movement, leading to Bengal on the one hand and to
Europe and America on the other, both radiate from
Poona. The actual course of events in India was
rising about the time of the fiftieth anniversary was

narrowly averted; from the beginning of 1907 there
had been a vague feeling of uneasiness all over

India, and in Bengal the anarchists [revolutionaries]
had already begun the campaign of violence and
had sent a youth to Paris to learn how to make
bombs. The attempt of 1907, such as it was,
having been a failure, the anarchist leaders like
other false prophets found it necessary from time
to time to fix some other moment for the great
event, and many dates have been mentioned; a
not uncommon forecast has been that while the
fiftieth anniversary passed off without any serious
not quite so simple as this general plan would

make it appear; for while the centres that attracted
most attention were situated in Europe or
America, anarchist work, much of it quite
independent of them, was going on in India,
particularly in Bengal. In order to collect these
scattered threads an attempt is made in Chapter
XI to give a brief survey of events in India not
mentioned in the preceding chapters.
Continued from Law Animated World, 15 September 2016

issue; emphases in bold ours - IMS.
3
These numbers in parantheses are of the original printed

document of the Government of India. - Ed.
Political Trouble in India : 1907-1917 (J.C. Ker)
REVOLUTIONARY LITERATURE
their usual forms, while those who do not are unlikely

to arrive, in all cases, at the correct pronunciation
on any system of transliteration. [4]
STANDAR OF EVIDENCE
Before going on to what the conspirators did two

points of interest arise, namely, what they intended to do
and why they wanted to do it; the chapters on the
literature of the revolution and the press give the [3]
objects and reasons of the revolutionaries in their
own language. They took the fullest advantage of the
As far as possible, the record is confined to facts

which have been clearly proved, and when they have
formed the subject of criminal trials the conclusions
arrived at by the highest courts are as a rule quoted. In
almost unrestricted liberty of the press which existed in

India before the Press Act of 1910 was passed to
disseminate their views, and the press campaign
other instances the evidence on which statements

are made is briefly indicated, though it is
impossible to go fully into the arguments on both
sides; and when it is a question what was said on
undoubtedly gained them many adherents; it will

also be noticed, as a point of practical importance
well illustrated by the history of the Delhi bomb
investigation, that quite apart from the effect which
the advocacy of revolution may have on the public
mind, a very close connection is usually found to exist
between those who practice, and those who preach. It
would, of course, be a mistake to accept without
hesitation everything they say, but this reservation
applies to political manifestos in general; at the
same time it may be assumed that they addressed to
their prospective followers the arguments, and held
out to them the inducements, which they thought
likely to be most effective.
THE SPELLING OF NAMES
The correct English spelling of Indian names is
always a difficulty, and several years ago an
attempt was made by the Government of India to
impose a sort of uniformity; the result, however,
was not entirely satisfactory. For example, the name
of the editor of the Bengalee of Calcutta, which
under these rules would be written Surendra Nath
Banerji, appears every morning on the front page of
his paper as Surendranath Banerjea; yet when he
was a member of the Viceroys Legislative Council
the official reporter, instead of choosing either,
adopted a third variant, Surendra Nath Banerjee,
and the talented Bengali authoress of Sikher
Balidan preferred the form Surendra Nath Bannerji.
Similar differences are found in other names, and in
view of this conflict of authorities the method used
any occasion the actual words used are preferred to any

summary. There are a great many things regarding
which the strongest suspicion exists, and some

that are established with practical certainty,
which are omitted because they have not been
proved in court. For example it has latterly been
definitely ascertained that the attempted murder
of Mr. B. C. Allen and the Barrah dacoity wre
both the work of the Anusilan Samiti (see page
154), and in the case of the murder of Sukumar
Chakravarti, which was arranged and carried out
by the same society, the names of the two actual
assassins are now known. It is also to be observed
that most criminal cases in India in which several
persons are concerned are very much whittled down in
successive stages. From amongst those who appear
to be involved a selection is made of the persons

against who m it seems a case can be made out;
possibly not all of the latter are arrested, and in the
proceedings before the magistrate some are discharged;
when the case comes to the Sessions Court some of those
who have been committed for trial are able to prove
their innocence; and lastly a proportion of these who
have been convicted are acquitted on appeal to the High
Court. It will be evident, therefore, that the system
which is followed here, by eliminating theories and

conjectures however attractive, states the case
against the enemies of the Britih Government in
India in its lowest terms.
In order to explain the origin of later
developments a short account will first be given
of political trouble in the various provinces in
1907, going back to an earlier date in the case of the
Bombay Presidency.
[5]
***
here is to let people spell their names in their own way,

where this is known, and in other cases to select the form
which appears to be the most familiar. Place names,
which also vary considerably, have been treated on

the same lines. The matter is fortunately not, in a
book of this sort, of very great importance; those
who know India will recognize the names in any of
(2016) 2 LAW
(2016) 2 LAW
the prestige which they enjoyed, left no stone

unturned to have the Partition reversed, and in the
CHAPTER II
INDIA IN 1907
end the Province was re-united by Royal command at

the Delhi Durbar in December, 1911.
BENGAL
THE PARTITION OF BENGAL
SWADESHI, SWARAJ AND BOYCOTT
The anarchist [i.e. revolutionary] movement in

Bengal was worked up on the top of what was known
as the anti-Partition agitation. The former was
The two main features of the anti-Partition

agitation were the swadeshi movement and the
boycott. In the word swadeshi, swa means
own (compare the Latin suus) and desh means
country, the letter i being the usual adjectival
termination; swadesh therefore means ones own
country, and swadeshi, pertaining to ones own
country. The swadeshi movement accordingly
consisted, economically, of using goods produced
in the country in preference to those imported
from abroad, and politically of making the
administration as far as possible Indian. The
boycott was simply the boycott of foreign goods
of all kinds, particularly those of English
manufacture; to this extent, as the Hindu agitators
expressed it, swadesh and boycott were positive
and negative aspects of the same thing. Swadeshi,
however, had a political side which went much
further; it aimed at a change in the Government
of the country with which the use of foreign
goods had little or nothing to do, namely, SelfGovernment or Swaraj. There has been some
controversy about the meaning of Swaraj, or as it
ought more properly be written Swarajya. As
explained above swa means own, and rajya
means rule, i.e. what a raja, or king, exercises
over his raj, or kingdom. Hence Swaraj means
Self-Government, and it has been regularly used
in that sense for many years in the West of India,
where the official translation of Local SelfGovernment is Sthanik Swarajya. It was,
started before the Partition took place, and has

persisted since it was reversed, but so long as the
Partition remained in force the two were closely interconnected. It is necessary, therefore, to give a short
account of Partition, and of the agitation against

it, so far as it had a bearing on the revolutionary
movement.
Disregarding minor distributions of territory,
what happened was that the unwieldy province of
Bengal was divided into two provinces, called Bengal
and Eastern Bengal, under separate LieutenantGovernors. This change was announced in July
1905, and came into force in October of the same

year, and instantly the Hindu leaders of both parts
redoubled the agitation against it, which had begun
when the proposal was first mooted, and was already
in full swing at the time of Lord Curzons visit to
Dacca in 1904. The real trouble was this, that,
taking the population of the two provinces
together, the Hindus preponderated over the
Mahomedans; but when they were divided the
Mahomedans, who are concentrated in the East,
were in a majority in Eastern Bengal. Before the
partition the educated Hindus, commonly called
Bengali babus, had it pretty much their own way all
over Bengal; not only did they practically
monopolise all branches of Government service,

on account of their superior education and
organisation, but most of the big landlords, and
however, new to Bengal when it was introduced to the

local leaders at the Indian National Congress at
Calcutta, in 1906, by Dadabhai Naoroji, the celebrated
Parsi leader from Bombay. Through these two
movements, then, swadeshi and boycott, it was hoped to
force the reversal of the Partition by bringing
therefore of course their underlings as well, both in the

East and in the West were Hindus. The plight of the
ordinary Mahomedan peasant in a place where the
landlord and all the officials with whom he came into
close contact were Hindus was therefore far from
enviable, and the Hindus were in a strong position.
pressure to bear on the Government and on the

British elector, the assumption being that the former
was very sensitive to [7] agitation, and the latter to
anything that touch his pocket.
The latter, seeing that as time went [6] on they

would lose, in the new province of Eastern
Bengal, the monopoly of Government service and
5
(2016) 2 LAW
THE PHYSICAL FORCE MOVEMENT
THE NATIONAL VOLUNTEERS
The idea of training young Bengalis to the use of

physical force for political purposes had been planted in
Bengal before the Partition took place. In the account
The principal agency used to enforce the

boycott in Calcutta and throughout both the
provinces of divided Bengal was the organization
known as the National Volunteers. It was not
confined to Bengal, nor were its activities limited
to the boycott. A very elaborate scheme for an
All-India Volunteer League, with B.G. Tilak of
Poona for President, was drawn up, but like many
other schemes it came to nothing. What actually
happened in most parts of India was that bands of
young men in a sort of uniform were collected on
special occasions to attend on leading agitators,
show people into their seats at meetings and make
themselves generally useful. The following
quotation from Bengalee of Calcutta, dated 3rd
December 1907, describes the position correctly
enough except as regards Bengal and Eastern
Bengal. Once again we say that there are no
of the Maniktolla conspiracy mention is made of

the efforts in this direction of Barindra Kumar
Ghose and also of Jotin Banerji who came to Calcutta
from Baroda in 1901 and set up a school in which he
combined the teaching of physical culture whith his own
peculiar views on politics. Two years later Miss
Sarala Devi Ghosal, a member of a well-known
Calcutta family and B.A. of the Calcutta

University {Rabindranath Tagores niece}, opened an
academy at Ballygunge, Calcutta, where Bengali
youths were instructed in fencing Jiu-Jitsu by a
professional swordsman named Murtaza. The object of
this also was apparently political, as she was already
known to be a supporter of the nationalist movement;
her declared intention was to remove the historical
reproach, perpetuated by Macaulay, that the Bengalis
were a race of cowards, and she was avowedly
national volunteers in the sense of a national

organisation. If there is a public function people
influenced by the success of the Japanese in the

war with Russia. This new development was
eagerly taken up; in Calcutta and other towns
throughout the Province similar akharas
(gymnasia) were started in which wrestling and lathiplay were taught, and practice with the lathi, formerly
the weapon of the lower classes only, became
combine together for the time being to discharge

it. On the occasion of Conferences and Congresses
there are volunteers enrolled for the particular
purpose and occasion. The purpose over, the
organisation is dissolved. If in any place there is
any apprehension of rowdyism and wehave lost
all confidence in our political protectors then
the young and the able-bodied combine to protect
the lives and properties of the people. Is there
fashionable among the young men of the educated and

well-to-do, or, as it is called in Bengal, bhadralog class.
The lathi is a strong and heavy bamboo staff

about 5 feet long, generally bound at intervals
with brass or wire. Outside Calcutta Miss
Ghosals influence was noticed chiefly in
Mymensingh and Dacca. She visited the former
in April, 1905, and became patroness of the Surhid
Samiti; before her visit this was a non-political
body, but inspired by her enthusiasm it developed
into a dangerous centre and had to be proscribed as
an unlawful association in January, 1909. She also
started in Mymensingh two celebrations in imitation
of the Shivaji festivals held in the Maratha country (see
page 15), the hero of one of them being [8]
Pratapaditya (see page 10). Miss Ghosals
connection with Dacca was less direct, but the
head of the revolutionary society there, Pulin Behari
anything wrong or seditious in this? Such organisations

have so far not formed part of any extensive national
movement.
(to be continued)
***
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Das, had been a pupil of her fencing-master Murtaza.

FREE SPEECH AND SEDITION

S. Sriram
Recently we have seen repeated occasions of

prosecution being launched for sedition against
various individuals and also an inevitable media
and civil societys condemnation of invocation of
the said provisions of law, for prosecution of
individuals, who are stated to have spoken, or
spoken out, against the establishment, against the
people in power, against the present concept of
what is understood as a nation-State India.
There are defences profferred on both sides,
convoluted to suit a political slogan for a few, rational
and objective debate at times, and aggressive
supporters of State action against such occurrences,
often dubbed as jingoistic show of nationalism.
Let us look at some instances of utterances in
the recent past that prompted the State to invoke
provisions of Sedition against such individuals:
The police arrested the singer and an FIR was

lodged inter alia, alleging Sedition, creating
enmity between sections of the society, and
criminal intimidation. The pictorial presentations
of the Chief Minister could be considered as not
very pleasant reference to the CM of the State.
In a recent incident touching upon student
unrest in a university campus, reportedly, in an
organized support to the separatist activity in
Jammu and Kashmir, some students participated
in meetings supporting the cause of separation of
Kashmir from India and uttered the following
slogans:
a. Afazal ne bola azaadi [Afzal spoke for freedom]
b. Maqbool ne bola azaadi [Maqbool spoke for freedom]
c. Bandook key nok par azadi [Freedom from the
barrel of the gun]
a. A folksinger by name S. Kovan in the State of

T.N. who had penned a song against the liquor
policy of the State of Tamil Nadu urging the
State to close the liquor shops, and the songs
moodu tasmac moodu and Orukku oru
Sarayam played on the streets, which broadly
refer to the ill-effect of liquor on the social and
economic fabric of the society and as to how
politicians and politics are the beneficiaries of
such policy exhorting the people not to be
cowed down by police action.
b. The other song criticizes the Chief Minister of
TN for not taking action even though there are
liquor deaths in the State and the complicity of
the politicians in the liquor trade, with pictorial
presentations of the CM and satirical
references to the policy of liquor promotion in
the State.
Courtesy: S. Sriram, Advocate, High Court, Hyderabad;

duly edited; emphases in bold ours - IMS.
After folk-singer Kovans arrest on October 30, 2015 on
d. Bharat tere thukde hongey.. Insha allah Insha

allah [India you will be broken up to pieces, Gods
mercy, Gods mercy]
e. Modi tu sun le azadi [Hear Modi shouts of freedom]

f. Mehbooba sun ley azadi [Hear Mehbooba shouts of
freedom]
g. Omar tu sun le azadi [Hear Omar shouts of freedom]

h. Tum kitne afzal maarogey.. Ghar ghar se afzal
niklega [How many Afzals will you kill, From every
house a Afzal will arise]
After the above events surfaced in a series of

media events, claimed to be breaking news by
every media channel, a high-octane media debate
followed by social media overdrive. The debate
centered
round
the
constitutionally
guaranteed
fundamental rights of free speech and the restrictions
thereon. The defenders of free speech claimed that free
speech guaranteed under Article 19(1)(a) of the
Constitution allows dissent and the above sloganeering was
slammed the authorities for slapping criminal case

against the activists. "I am shocked when I heard that the
government has booked activists (seeking prohibition)
with sedition charges. Who is committing sedition?
Those who are promoting liquor or those serve the
country (by campaigning against it)?... Liquor has ruined
poor families," and blamed both ruling AIADMK and
DMK over the issue. [IMS]
charges of sedition made headlines, a similar case has been

registered against six activists of an anti-liquor group for
allegedly making incendiary speeches. Referring to

both cases, MDMK general secretary and coordinator of
PWF, Vaiko said he "strongly condemned" the police
action. at Madurai, senior BJP leader, Prakash Javedkar
7
Free Speech and Sedition (S. Sriram)
be demonstrably the least restrictive of the choices

available to the State for this purpose.
It is a fairy well-settled position in law that no
an expression of dissent. The supporters of a strong

prosecution, including on a charge of sedition, would
contend that the right to free speech, consecrated as a
fundamental right in the Constitution, does not extend
to supporting events and movements which support
dismembering of the country, supporting individuals who
were convicted and sentenced for offences against the
State.
fundamental rights under the Constitution are absolute

and are subject to reasonable restrictions, expressly
provided for in the Constitution and or otherwise

judicially held to be subject to such restrictions in
conformity with the law. What is undeniable
therefore, is that by the words expressed or written,
in exercise of the fundamental right under Article
19(1)(a), there is a possibility of affectation of the
objectives contained in Article 19(2), i.e., that a
Having regard to modern day advancements in

dissemination of information, and a populace
seeking to express itself more [at times even
aggressively] in the new-found freedom of modern
world, what are the elected Governments to do? Is
written word or a spoken word could lead to any of the

consequences, sought to be restricted by a law under 19(2),
invocation of provisions of sedition, in the above fact

situation, really, an act of response by the State to silence
dissent? Does the right to dissent in a free and democratic
country, extend to support, canvass, and vocalize an idea of
dismemberment of the country?
such as defamation, contempt, incitement to an

offence, security of the State etc.
There are
provisions under IPC which define what constitutes
defamation as a criminal offence (S 500),
Contempt of courts Act defining what is contempt
of court and the punishment therefor, and the like.
There are various laws which punish any acts which
compromise the security of the State.
SEDITION
Sedition is defined under Section 124A of the
IPC [a law referable to Article 19(2) read with
Article 13(3)(a)] of the Constitution, as under :
Whoever, by words, either spoken or written or
by sings or by visible representations or
otherwise, brings or attempts to bring into hatred
or contempt, or excites or attempts to excite
disaffection towards the Government established
by law in India, shall be punished with
imprisonment for life, which may extend to three
years, to which fine may be added or with fine
Explanation 1: The expression disaffection
includes disloyalty and all feelings of enmity;
Explanation
2:
Comments
expressing
disapprobation of the measures of the
Government with a view to obtain their alteration
by lawful means, without exciting or attempting
to excite hatred, contempt or disaffection, do not
constitute an offence under this Section;
Explanation
3:
Comments
expressing
disapprobation
disapprobation
of
the
administrative or other action of the Government
without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an
offence under law.
Provisions of the Constitution and Free Speech

No liberties guaranteed under the Constitution
are absolute and they are subject to reasonable
restrictions, which in the case of fundamental
freedoms, guaranteed under Article 19(1)(a) to (e)
are configured in Article 19(2) to 19(6). In
Bachhan Singh vs State of Punjab 1982(3) SCC
24 and St. Xaviers College vs State of Gujarat
AIR 1974 SC 1389 courts
held that such
fundamental rights are subject to reasonable
regulations.
The right to free speech, guaranteed under Article
19(1)(a) of the Constitution of India is declared as
All citizens shall have the right to freedom of speech and
expression; [and then,] the enabling provision for
imposing reasonable restrictions thereon, and the
measures sought to be protected by such reasonable
restrictions are adumbrated in Article 19(2)
reasonable restrictions which the State, can impose by
law, would be to secure the interests of the
sovereignty and integrity of India, the security of the State,
friendly relations with Foreign States, public order,
decency or morality or in relation to contempt of court,
defamation or incitement to an offence. Therefore, in
order to justify a reasonable restriction on the

exercise of a fundamental right, the State needs to
have (a) a law within the meaning of the said term
under Article 13(3)(a) of the Constitution; (b) that
law ought to have nexus to secure the above
objectives named in 19(2); and (c) the measure
sought to be justified as a reasonable restriction, ought to
(2016) 2 LAW
(2016) 2 LAW
Free Speech and Sedition (S. Sriram)
Law courts in various jurisdictions have evolved

various tests in adjudging the validity of the
restrictions imposed on free speech. Initially, the
American courts evolved the test of clear and
present danger to adjudge the restrictions imposed
on a citizens right to free speech in the case of
Schenck vs United States in 249 US 47 (1919),
observing: The most stringent protection of free
with a satirical reference to the policies of the State

and the Chief Minister, the said expression is
protected by the Explanations I and II of Section
124A, and so could not be construed as causing
disaffection towards government established by law.
Any criticism of the personal or political conduct of
a Chief Minister is not tantamount to creating
disaffection against the Government headed by him
or her, as held in Kedar Nath case.
Kanhaiyya Kumar case
It is clear that the slogans for dismemberment of
speech would not protect a man in falsely shouting fire

in a theater and causing a panic. The above tests
were adopted in S Rangarajan v P. Jagjevan Ram and
others, 1989 (2) SCC 574, by our SC. Though the test
India, and for separation of Kashmir, are not expressions,

saved under the Explanations II and III of Section 124A of
IPC, since they dont relate to policy decisions of,
itself had undergone a change in the judicial

thinking of the American courts, our Supreme
Court in Shreya Singhal vs UOI, 2015(5) SCC 1 (=
(2015) 1 LAW-ISC 133), applied the tests of clear
and present danger and of tendency in relation to
a challenge to S 66A of the I.T. Act. The test now
is, if a speech places a clear and present danger to
any of the objectives sought to be protected under
Article 19(2), or has the tendency to so affect, the
restriction to be imposed would be justifiable.
As regards offences under Sedition, Law
courts have taken a view that mere words by itself
or are mere disapprobation of the actions of, the

Government. In fact, those amount to repudiation of a
unanimous resolution passed by the Indian Parliament. It
is, in my view, not within the confines of the right to
dissent, of dissent not amounting to Sedition, as
engrafted under Explanations II and III to S 124 A IPC.
The speech exhorts the overthrow of an elected
Government in India by the force of Gun and supports
dismemberment of India. The clear and present danger
test of the objectives under Article 19(2) of the
Constitution is satisfied with the disturbances
would not constitute sedition, unless followed by overt

action, answering the tests of clear and present danger
occurring in Kashmir, post the speech attributed to

the speakers in JNU, carrying placards thanking
JNU organizers and instigating violence against the
law-enforcement agencies in the State. The
and also the tendency to cause such affectation.

But, it was also held that the term Government of
the State is not to be construed as persons engaged
in carrying on the administration, e.g. Kedar Nath
Singh v. State of Punjab, AIR 1962 SC 955. In
another case Balwant Singh and another v. State
of Punjab, 1995(3) SCC 214, it was held that
raising slogans that did not evoke any response or
reaction could not be construed as seditious
speech. Therefore, any speech, which can create
tendency test is also satisfied by the spurt in such events
seeking to challenge the elected Government in

various Universities and the recent events in N.I.T.,
Kashmir where a majority of the students resented the
presence of national flag in the premises.
Therefore, in my view, there is no ambiguity on
the contours of free speech guaranteed under the
Constitution, as to the limits of the right to
disaffection towards the Government of India, and is laced

with expressions hat support dismemberment or break-up
the country, is clearly comprehended in the term
sedition. However, right to dissent as ingrained in the
expanse of the free speech and the right to dissent
extending to disapprobation of the measures of/policy of
the Government, as clarified by the Explanations 2 and 3
to Section 124A, cannot constitute Sedition. Equally, any
criticism of the people in power, however trenchant, cannot
be a case for Sedition.
dissent and as to what constitutes Sedition and

therefore, having regard to the fissiparous tendencies
which secure a fillip, from the perception of a
Soft State, it is justifiable in a fact situation, for the
law enforcing agencies, to invoke the provisions of
Sedition and there exists no justification for repeal
of the said provision. Adequate safeguards are engrafted
into the penal provision to protect free speech and
dissent, as adumbrated by Article 19(1)(g) r/w Art 19(2)
of the Constitution.
Kovan case
Though the lyrics of the Song clearly disapprove
of the existing liquor policy of the State of T.N.,
*****
9
RIGHT TO INFORMATION ACT: MY CONCEPTION

V. Rajagopal Reddy
Right to Information Act, enforced from

12-11-2005, is revolutionary, empowering the
to ensure that each and every penny spent by the

government reaches its proper destination. This is
an alarming state of affairs. Mounting corruption is
there in all walks of public life. Nowadays, persons
are generally lured into politics or to contest
elections to get rich overnight. But before
allowing any persons to enter public life, the
people have a right to know the antecedents of
such persons. The RTI Act enables any citizen to
access such information.
Democracy cannot exist and flourish unless all
the citizens have a right to participate in the
affairs of the polity of the country. That right to
common man of the country to pierce the iron curtains

encircling the government offices. Citizens have been
blessed with a tool with the help of which the
government is now liable to discharge its obligations
with openness. Secrecy in administration encourages
and promotes corruption, oppression, abuse and misuse
of power and, in due course of time, results in serious
consequences. Actions shrouded in the veil of
secrecy without any public accountability make

the system corrupt and deprive the people of their
rightful claims. The more openness in the
administration, the less would the abuse of power be.
participate is meaningless unless the citizens are well

informed on all sides of the issues, in respect of which
they are called upon to form and express their views.
One-sided information, dis-information, misinformation,
and noninformation all equally create an uninformed
citizenry, which makes democracy a farce when medium
of information is monopolized either by a partisan central
authority or by private individuals or organizations. This
The majority of people living in misery,

hunger and ignorance face still more problems.
The pervasive corruption, aggravated by the use
of money and muscle powers by some persons
either to win the elections or to make themselves
or their favorites richer, is worsening the
situation. The growing divide between the super rich
and the downtrodden poor has given impetus to
several unemployed youths even to adopt
unethical and unlawful ways and means to serve
their selfish ends. Sometimes, it is said that only
19% of the funds spent by the public exchequer
reaches the needy people (beneficiaries) and
sometimes it gets reduced to 15% even. But no
one bothers as to where the remaining 85% goes.
No effective and corrective steps have been taken
is particularly so in a country like ours where

about 50% of the population is illiterate and
hardly 5-10% have an access to the print media.
In this regard, especially to protect the rights
and facilities offered by this RTI Act, the judiciary
has a very active role to play in the society. Tools like
public interest litigation, judge made law, and
juidical review powers enhance the remedies for
constitutional violations. And, in rare cases, where
there is stark and persistent inaction by the legislature
or the executive, even formulation of policy guidelines
can be done by judicial activism, although, I feel that
Courtesy: V. Rajagopal Reddy, Advocate, High Court,

Hyderabad, with 58 years standing at the Bar; emphases
in bold ours - IMS.
I find that, though it is salutary, the Act imposes some
unnecessary restraints in the process so much so that even
High Courts (on administrative side) are going scot-free
(and with more impunity) by refusing to give information
on all and sundry reasons, [some like Allahabad High Court
fixing very high fees (Rs. 500/-!) for application even], and
then inviting litigation which they refuse to settle. Is a
RTI petitioner expected to go round courts litigating,
spending moneys and time, and still not getting needed
information due to cumbersome procedures and deliberate
mechanisms? Sometimes I feel we would have been in a
much better position without this Act. - IMS.
the role of judiciary should in general be limited

to interpreting the law. The object of making India a
welfare state should not be forgotten while interpreting
the law. In a democratic society, when everything
fails, the judiciary has to step in and ensure that the
fundamental rights are protected and the rule of law
maintained. The judiciary has to keep checks and
balances, on the legislature and the executive, by virtue
of its power of judicial review, so that no one oversteps
the boundaries assigned to ones respective branch by
our Constitution.
*****
10
YOUR MONEY OR YOUR LIFE!

John W. Whitehead
Your Money or Your Life: Whats Behind the

Latest Government Scam to Rob You Blind?
disguised as fines, taxes disguised as fees, and

taxes disguised as tolls, tickets and penalties. For
example, red light cameras, which were sold to
the public as safety measures, have in practice
become backdoor taxes aimed at swelling
government bank accounts.
The governments schemes to swindle, cheat, scam,
and generally defraud Americans have run the gamut
from wasteful pork barrel legislation, cronyism
and graft to asset forfeiture schemes, the modernday equivalent of highway robbery, astronomical
health care reform, and costly stimulus
packages.
Americans have also been made to pay through the
nose for the governments endless wars, subsidization
of foreign nations, military empire, welfare state,
roads to nowhere, bloated workforce, secret
agencies, fusion centers, private prisons,
biometric databases, invasive technologies,
arsenal of weapons, and every other budgetary line
The fact is that the government, like a

highwayman, says to a man: Your money, or your life.
And many, if not most, taxes are paid under the
compulsion of that threat. The government does not,
indeed, waylay a man in a lonely place, spring
upon him from the road side, and, holding a pistol
to his head, proceed to rifle his pockets. But the
robbery is none the less a robbery on that account; and
it is far more dastardly and shameful. Lysander
Spooner, American abolitionist and legal theorist.

If a cop wrongfully attacks you, you cannot
fight back. If a SWAT team wrongfully raids your
home, you cannot defend yourself. If a highway
patrol officer wrongfully takes your money or
your valuable possessions, you cannot get them
back without a lengthy, costly legal battle.
It used to be that the Constitution served as a
bulwark against government abuses, excesses and
wrongdoing. That is no longer the case.
item that is contributing to the fast-growing wealth of

the corporate elite at the expense of those who are
barely making ends meet that is, we the taxpayers.
Having been reduced to little more than a historic

document, the Constitution now provides scant
protection against government abuses, misconduct and
corruption.
Those football stadiums that charge exorbitant

sums for nosebleed seats? Our taxpayer dollars
subsidize them. Those blockbuster war films?
Yep, we were the silent investors on those, too. Same
goes for the military equipment being peddled to
local police agencies and the surveillance
cameras being donated to local governments.
Now the government and its corporate partners in
Not only are we the people painfully

vulnerable to the whims of any militarized cop on
the beat, but we are also sitting targets for every
government huckster out to fleece the taxpayer of
their hard-earned dollars. We get taxed on how
much we earn, taxed on what we eat, taxed on
what we buy, taxed on where we go, taxed on
what we drive, and taxed on how much is left of
our assets when we die.
Because the governments voracious appetite for
money, power and control has grown out of control, its
agents have devised other means of funding its
excesses and adding to its largesse through taxes
crime have come up with a new scheme to not only scam

taxpayers out of whats left of their paychecks but also
make us foot the bill, and its coming at us in the form
of a war on cash.
What is this war on cash? Its a concerted

campaign to do away with large bills such as $20s, $50s,
$100s and shift consumers towards a digital mode of
commerce that can easily be monitored, tracked,
tabulated, mined for data, hacked, hijacked and
confiscated when convenient.
Courtesy: John W. Whitehead, Constitutional attorney &

author, founder and president of the Rutherford Institute,
at www.rutherford.org; dated 13 September 2016;
According to economist Steve Forbes, The

real reason for this war on cash start with the big
11
12
Your Money or Your Life! (John W. Whitehead)
bills and then work your way down is an ugly

power grab by Big Government. People will have less
In much the same way that Americans have

opted into government surveillance through the
convenience of GPS devices and cell phones,
privacy: Electronic commerce makes it easier for Big

Brother to see what were doing, thereby making it
simpler to bar activities it doesnt like, such as
digital cash the means of paying with ones debit card,

credit card or cell phone is becoming the de facto
commerce of the American police state.
purchasing salt, sugar, big bottles of soda and Big

Macs.
Much like the war on drugs and the war on
terror, this so-called war on cash is being sold to the
It is estimated that smart phones will replace cash

and credit cards altogether by 2020. Already, a
growing number of businesses are adopting nocash policies, including certain airlines, hotels,
rental car companies, restaurants and retail stores.
In Sweden, even the homeless and churches
accept digital cash.
Making the case for never, ever carrying cash in
lieu of a digital wallet, journalist Lisa Rabasca
Roepe argues that cash is inconvenient, ATM access is
costly, and its now possible to reimburse people
using digital apps such as Venmo. Thus, theres
no longer a need for cash. More and more retailers
and grocery stores are embracing Apple Pay,
Google Wallet, Samsung Pay, and Android Pay,
notes Roepe. PayPal's app is now accepted at
many chain stores including Barnes & Noble,
Foot Locker, Home Depot, and Office Depot.
Walmart and CVS have both developed their own
payment apps while their competitors Target and
RiteAid are working on their own apps.
Its not just cash that is going digital, either.
A growing number of states including
Delaware and California are looking to adopt
digital drivers licenses that would reside on your
mobile phone. These licenses would include all of
the information contained on your printed license,
along with a few extras such as real-time data
public as a means of fighting terrorists, drug dealers

and tax evaders. Just the mere possession of cash is
enough to implicate you in suspicious activity

and have you investigated. In other words, cash
has become another way for the government to profile
Americans and render them criminals.
The rationale is that cash is the currency for

illegal transactions given that its harder to track,
can be used to pay illegal immigrants, and denies
the government its share of the take, so doing
away with paper money will help law enforcement
fight crime and help the government realize more
revenue.
Despite what we know about the government
and its history of corruption, bumbling, fumbling
and data breaches, not to mention how easily
technology can be used against us, the campaign to
do away with cash is really not a hard sell. Its not a
hard sell, that is, if you know the right buttons to
push, and the government has become a grand master
in the art of getting the citizenry to do exactly what it
wants. Remember, this is the same government that
plans to use behavioral science tactics to nudge
citizens to comply with the governments public policy
and program initiatives.
Its also not a hard sell if you belong to the Digital

Generation, that segment of the population for
whom technology is second nature and the first
generation born into a world that has never not known
digital life.
downloaded directly from your state's Department of

Motor Vehicles. Of course, reading between the
lines, having a digital drivers license will open

you up to much the same jeopardy as digital cash:
it will make it possible for the government to better
And if you belong to the growing class of

Americans 46% of consumers, approximately
114 million adults and rising who use your cell
phone to pay bills, purchase goods, and transfer
funds, then the government is just preaching to the
track your movements, monitor your activities and

communications and ultimately shut you down.
So whats the deal here?
Despite all of the advantages that go along

with living in a digital age namely, convenience
its hard to imagine how a cashless world navigated
choir when it comes to persuading you of the

convenience of digital cash.
(2016) 2 LAW
12
(2016) 2 LAW
by way of a digital wallet doesnt signal the beginning of

the end for what little privacy we have left and leave us
vulnerable to the likes of government thieves and data
hackers.
13
personnel files stolen, everything from Social

Security numbers to birth dates and fingerprint
records. In 2014, it was the White House, the
State Department, the Post Office and other
government agencies, along with a host of
financial institutions, retailers and entertainment
giants that had their files breached. And these are
First, when I say privacy, Im not just referring

to the things that you dont want people to know
about, those little things you do behind closed
doors that are neither illegal nor harmful but
embarrassing or intimate. I am also referring to
the things that are deeply personal and which no
one need know about, certainly not the
government and its constabulary of busybodies,
nannies, Peeping Toms, jail wardens and petty
bureaucrats.
Second, were already witnessing how easy it will
the people in charge of protecting our sensitive

information?
Fifth, if theres one entity that will not stop using

cash for its own nefarious purposes, its the U.S.
government. Cash is the currency used by the
government to pay off its foreign associates.
For instance, the Obama administration flew more
than $400 million in cash to Iran in January 2016,
reportedly as part of a financial settlement with the
country. Critics claim the money was ransom paid
be for government agents to manipulate digital wallets

for their own gain. For example, civil asset
for the return of American hostages. And then

there was the $12 billion in shrink-wrapped $100 bills
forfeiture schemes are becoming even more

profitable for police agencies thanks to ERAD
that the U.S. flew to Iraq only to claim it had no record

of what happened to the money. It just disappeared. So
(Electronic Recovery and Access to Data) devices
supplied by the Department of Homeland

Security that allow police to not only determine the
when government economists tell you that twothirds of all $100 bills in circulation are overseas
more than half a trillion dollars worth its a
pretty good bet that the government played a
significant part in their export.
balance of any magnetic-stripe card (i.e., debit, credit

and gift cards) but also freeze and seize any funds on
pre-paid money cards. The Eighth Circuit Court of
Appeals ruled in June 2016 that it does not violate
the Fourth Amendment for police to scan or swipe your
credit card.
Sixth, this drive to do away with cash is part of a

larger global trend driven by international financial
institutions and the United Nations that is
Third, as the ever insightful Paul Craig Roberts

observes, while Americans have been distracted by
the governments costly war on terror, the
financial system, working hand-in-hand with
policymakers, has done more damage to Americans
than terrorists could possibly inflict. Ultimately, as
transforming nations of all sizes, from the

smallest nation to the biggest, most advanced
economies.
Finally, short of returning to a pretechnological, Luddite age, theres really no way
to pull this horse back now that its left the gate.
While doing so is near impossible, it would also
mean doing without the many conveniences and
advantages that are the better angels, if you will,
of technologys totalitarian tendencies: the
internet, medical advances, etc.
To our detriment, we really have little control over
Roberts who served as Assistant Secretary of

the Treasury for Economic Policy under Ronald
Reagan makes clear, the war on cash is about
giving the government the ultimate control of the
economy and complete access to the citizenrys
pocketbook.
Fourth, if theres a will, theres a way. So far,

every technological convenience that has made our lives
easier has also become our Achilles heel, opening us up
to greater vulnerabilities from hackers and government
agents alike. In recent years, the U.S. government
who accesses our private information, how it is stored,

or how it is used. Whether we ever had much
control remains up for debate. However, in terms
of our bargaining power over digital privacy rights, we
have been reduced to a pitiful, unenviable position in
has been repeatedly hacked. In 2015, the Office of

Personnel Management had more than 20 million
13
14
(2016) 2 LAW
which we can only hope and trust that those in power

will treat our information with respect.
We continue to be branded rebels and traitors and

enemy combatants, shot without hesitation for daring to
resist an official order or challenge injustice, and duped
into believing all this was done for our good.
Americas founders, however, did not believe in

trusting government officials or giving them too much
power. In fact, they believed those entrusted with
power will eventually pervert it into tyranny. As
In the end, as I make clear in my book

Battlefield America: The War on the American
People, we are no better than when we first started out
Thomas Jefferson observed, Let no more be

heard of confidence in man, but bind him down
from mischief by the chains of the Constitution.
Unfortunately, that Constitution has since been
shredded. Our republic has been transformed into an
oligarchy. We have come full circle, back to a prerevolutionary era
representation.
of
taxation
without
any
more than 200 years ago as indentured slaves to a

government elite intent on using us for their own
profit and gain.
[WC: 2478 // Constitutional attorney and
author John W. Whitehead is founder and
president of The Rutherford Institute. His
book Battlefield America: The War on the
American People (SelectBooks, 2015) is
available online at www.amazon.com.
Whitehead can be contacted at johnw@
rutherford.org.]
*****
real
a 19th century
American abolitionist and legal theorist, was right
LYSANDER
SPOONER,
when he concluded that the government is far more

disingenuous and dangerous to the rights, property and
lives of the citizenry than the common criminal or
highwayman. As Spooner points out:
AN APPEAL
[Unlike the government,] the highwayman

does not pretend that he has any rightful claim to
your money, or that he intends to use it for your own
benefit He has not acquired impudence enough
to profess to be merely a protector He does not
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persist in following you on the road, against

your will; assuming to be your rightful
sovereign, on account of the protection he
affords you. He does not keep protecting you, by
commanding you to bow down and serve him; by
requiring you to do this, and forbidding you to
do that; by robbing you of more money as
often as he finds it for his interest or pleasure
to do so; and by branding you as a rebel, a
traitor, and an enemy to your country, and
shooting you down without mercy, if you
dispute his authority, or resist his demands
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14
(2016) 2 LAW
Secretary of State for Home Dept. v Franco Vomero (Italy) [UK-SC]
(2016) 2 LAW F-141 (UK-SC)
Regulations 2006. Regulation 21 gives effect to

articles 27 and 28 of Directive 2004/38/EC (the
Directive).
In October 2007 the Immigration and Asylum
Tribunal (IAT) dismissed Mr Vomeros appeal
against the Secretary of States deportation decision.
A Senior Immigration Judge ordered that the IATs
2007
determination
be
reconsidered.
The
reconsideration was heard by a second, differentlyconstituted IAT in April 2008, which allowed Mr
Vomeros appeal.
The Court of Appeal the Court dismissed the
Secretary of States appeal against the second IAT
determination. The Secretary of State appealed to the
Supreme Court. The Supreme Court granted
permission to appeal but stayed the matter pending the
outcomes of two related cases before the Court of
Justice of the EU (the Court of Justice): Onuekwere
(Case C-378/12) and MG (Case C-400/12).
The decision in Onuekwere confirmed that a period
of imprisonment cannot be taken into account in
calculating the five years of continuous residence
necessary for a permanent right of residence under
article 16 of the Directive. Therefore Mr Vomero had
not acquired any right of permanent residence before
the date of the decision to deport him. Mr Vomero
submits that this is irrelevant and that an EU citizen
with no right of permanent residence may
nevertheless acquire a right to enhanced protection
from expulsion under article 28 of the Directive.
SUPREME COURT OF THE

UNITED KINGDOM AT LONDON
On appeal from: [2012] EWCA Civ 1199
Wednesday, 27 July 2016

Secretary of State for the Home Department
(Appellant)
v
Franco Vomero (Italy)
(Respondent)
Citation: (2015) 2 LAW F-141
[2016] UKSC 49
***
27 July 2016
PRESS SUMMARY
Secretary of State for the Home Department
(Appellant) v Franco Vomero (Italy)
(Respondent) [2016] UKSC 49
On appeal from [2012] EWCA Civ 1199
JUSTICES: Lady Hale (Deputy President), Lord
Mance, Lord Wilson, Lord Reed, Lord Hughes
BACKGROUND TO THE APPEALS
The Respondent, Mr Vomero, is an Italian national.
He met a UK citizen in France in 1985 and they came
to England and married in 1987. They had five
children for whom he cared in England. He had
convictions in Italy and further convictions in the UK
between 1987 and 1999. In 1998 the marriage broke
down and he left the family home. In March 2001, he
killed Mr Edward Mitchell. He was found guilty of
manslaughter, by reason of provocation, sentenced to
eight years imprisonment and released in July 2006.
In a decision made on 23 March and maintained on
17 May 2007 the Appellant Secretary of State decided
to deport Mr Vomero under regulations 19(3)(b) and
21 of the Immigration (European Economic Area)
F-141
JUDGMENT
The Supreme Court refers several questions to the Court of
Justice for determination. Lord Mance, with whom the
other Justices agree, gives the lead judgment.
REASONS FOR THE JUDGMENT
Statements by the European Court of Justice (Grand
Chamber) in Tsakouridis (Case C-145/09) suggest the
protection afforded under articles 28(2) and 28(3) of the
Directive is intended to be progressive, with the possibility
of the highest (enhanced) protection only being earned

after ten years by those already benefitting from the
next highest level through having a right of permanent
residence [15-17].
Following the judgment of the Court of Justice
(Second Chamber) in MG [18-19], it is apparent that
the calculations of the time needed to qualify for certain rights
under articles 16 and 28(3)(a) of the Directive are different.
The five-year under article 16 must be continuous but
Courtesy: Supreme Court of the United Kingdom, at

www.supremecourt.uk; emphases in bold ours - IMS.
This summary is provided to assist in understanding the
Courts decision. It does not form part of the reasons for
the decision. The full judgment of the Court is the only
authoritative document. Judgments are public documents
and are available at: http://supremecourt.uk/decided-cases/
index
15
F-142
Trinity Term
[2016] UKSC 49
will, once acquired, only be lost by absence or

imprisonment lasting two years. The ten-year previous
period under article 28(3)(a) may be non-continuous,
where interrupted by a period of absence or
imprisonment. Whether the ten years is to be counted
by including or excluding any such period of
interruption is unclear [20].
A majority of the Supreme Court favours the view that
JUDGMENT
Secretary of State for the
Home Department (Appellant) v
Franco Vomero (Italy) (Respondent)
possession of a right of permanent residence is not needed in

order to enjoy enhanced protection under article 28(3)(a) of
the Directive on the basis that neither that article nor the
existing case law identifies any need for a right of permanent
residence in order for an EU citizen to invoke enhanced
protection [26-27].
before
LADY HALE, Deputy President
LORD MANCE
LORD WILSON
LORD REED
LORD HUGHES
However, there are indications in the Directive that

the article 28(2) and 28(3) protections benefit those
enjoying rights of residence and that article 28(3) is
predicated upon the enjoyment of such a right. It is
open to suggestion that the right in question refers
most naturally the right of permanent residence
referred to in article 28(2). A minority of the Court
JUDGMENT GIVEN ON
27 July 2016
Heard on 21 June 2016
therefore regards the position as unclear and so as requiring a

reference to the Court of Justice. The Supreme Court
therefore refers to the Court of Justice the following
Appellant
Robert Palmer
Ben Lask
Respondent
Raza Husain QC
Professor Takis
Tridimas
(Instructed by The
Nick Armstrong
Government Legal
(Instructed by Luqmani
Department)
Thompson & Partners)
***
LORD MANCE: (with whom Lady Hale, Lord
Wilson, Lord Reed and Lord Hughes agree)
1. The respondent, Franco Vomero, is an Italian
national born on 18 December 1957. He met his
future wife, a UK citizen, in Nice in 1983, they
came to the United Kingdom on 3 March 1985,
and they married on 3 August 1985. They had
five children for whom he cared (as well as
undertaking some casual work) while his wife
worked as a teacher. He had convictions in Italy
and further convictions in the UK between 1987
and 1999. In 1998 the marriage broke down and
he left the family home. He moved into
accommodation with Mr Edward Mitchell, with
whom he had a turbulent relationship.
2. On 1 March 2001, the respondent killed Mr
Mitchell. Both men had been drinking, a fight
ensued and the respondent struck Mr Mitchell at
question:
(1) whether enhanced protection under article 28(3)(a)
depends upon the possession of a right of
permanent residence within article 16 and article
28(2) of the Directive. [27]
In the event that this question is answered
negatively, the Supreme Court refers two further
questions:
(2) whether the period of residence for the previous
ten years, to which article 28(3)(a) refers, is
(a) a simple calendar period looking back from
the relevant date (here that of the decision to
deport), including in it any periods of
absence or imprisonment,
(b) a potentially non-continuous period, derived
by looking back from the relevant date and
adding together period(s) when the relevant
person was not absent or in prison, to arrive,
if possible, at a total of ten years previous
residence.
(3) what the true relationship is between the ten-year
residence test to which article 28(3)(a) refers and
the overall assessment of an integrative link. [28]
References in square brackets are to paragraphs
in the judgment
***
(2016) 2 LAW
16
(2016) 2 LAW
F-143
iv) Subsequently he has been convicted again

and has served further short sentences of
16 and 12 weeks.
6. The following provisions of the Directive are
of particular relevance and are appended for ease
of reference: recitals (17), (18), (23) and (24) and
articles 6, 7, 13, 16 and 28. The issues on this
appeal are, in outline: (i) whether enhanced
protection is available under article 28(3)(a) to a
Union citizen who does not enjoy a right of
permanent residence under article 16 or therefore
enjoy the lesser protection available under article
28(2); and (ii) so far as relevant, what are the
principles on which protection is available under
articles 28(2) and 28(3)(a).
7. The Secretary of States case is that the respondent
has never acquired a right of permanent residence, and
that enhanced protection cannot in consequence be
available under article 28(3)(a). As put before the
Supreme Court, it does not involve investigating
least 20 times on the head with weapons

including a hammer, and then strangled him with
electrical flex from an iron. The respondent was
arrested on 2 March 2001. The jury reduced the
charge of murder to manslaughter by reason of
provocation. The respondent was on 2 May 2002
sentenced to eight years imprisonment, being
released in early July 2006.
3. By decision made on 23 March 2007 and
maintained on 17 May 2007, the appellant, the
Secretary of State, determined to deport the
respondent under regulations 19(3)(b) and 21 of the
Immigration (European Economic Area) Regulations
2006 (SI 2006/1003). Regulation 21 gives effect to
articles 27 and 28 of Directive 2004/38/EC of 29 April
2004 (OJ 2004 L158, p 77). The issues on this appeal
depend on the proper interpretation of the

Directive.
4. The respondent was detained with a view to
deportation until December 2007. On appeal the
case was reheard and twice adjourned pending the
determination of other cases, including latterly
the references in Onuekwere v Secretary of State
for the Home Department (Case C-378/12)
[2014] 2 CMLR 46 and MG v Secretary of State
for the Home Department (Case C-400/12)
[2014] 2 CMLR 40, on which the Court of Justice
delivered judgments on 16 January 2014. In the
meantime, the respondent committed and was
convicted of further offences. One conviction (in
January 2012) for having a bladed article, battery
and committing an offence while subject to a
suspended sentence led to him being sentenced to
16 weeks imprisonment. Another (in July 2012)
for burglary and theft led to a further 12 weeks
sentence.
5. In summary, therefore:
i) From 1985 to 2001 the Respondent lived in
the UK, albeit with convictions from time
to time which did not result in
imprisonment.
ii) From March 2001 to July 2006 he was in
prison for manslaughter.
iii) The decision to deport him was made in
March 2007, less than nine months after his
release from prison.
events prior to 2001, it being accepted that the

respondent had by 2001 some 16 years established
residence in the United Kingdom (see para 1 above).
The case rests on the indisputable fact of the
respondents imprisonment for manslaughter from 2001
to 2006 and on Court of Justice authority,
including judgments in Onuekwere and MG postdating the Court of Appeals judgment.

8. In this connection, it is, now at least, clear that
no right of permanent residence could in law be
acquired before 30 April 2006: see article 40 of the
Directive, Secretary of State for Work and

Pensions v Lassal (Case C-162/09) [2001] 1
CMLR 31, para 38 and Secretary of State for
Work and Pensions v Dias (Case C-325/09)
[2011] 3 CMLR 40, paras 40 and 57. To acquire
such a right, the respondent therefore required, as
at 30 April 2006 or at some later date, to have
resided legally for a continuous period of five
years in the UK. As at 30 April 2006, the
respondent had been in prison for over five years,
and he remained so for a further two months. By
the time of the decision to deport, he had been out
of prison for less than nine months.
9. Second, in Onuekwere the Court of Justice held
on 16 January 2014 that under the terms of article
17
F-144
16(2) of the Directive periods of imprisonment
of a permanent right of residence is that it is no

longer necessary to work or to fulfil any of the
other residence qualifications applicable under
article 7 to Union citizens who have not acquired
a permanent right of residence. By analogy with
absence, it might, however, seem logical if a
period exceeding two years spent in prison were
to lead to the loss of any right of permanent
residence acquired on or after 30 April 2006. The
parties were not however agreed on this, and it is
not necessary to consider it further on this appeal.
12. It follows from paras 8 and 9 above that, as
the Secretary of State rightly submits, the respondent
cannot be taken into consideration for the purposes of

the acquisition of a right of permanent residence for the
purposes of that provision (para 22) and further that
articles 16(2) and (3) must be interpreted as

meaning that continuity of residence is
interrupted by periods of imprisonment in the
host member state (para 32). The same must
necessarily apply in respect of a Union citizen
under article 16(1).
10. Under article 16(4) a right of permanent
residence acquired in the past may be lost
through absence from the host member state for
a period exceeding two consecutive years. The
thinking behind article 16(4), as explained in
Lassal (Case C-162/09) paras 53-58, is that a
two-year absence affects the link of integration
with the host member state of the Union citizen
concerned. In Dias (Case C-235/09) this thinking
was developed in a more complex situation. A
Union citizen had resided legally in the UK for a
five-year period from January 1998 until 17 April
2003 (not yet therefore acquiring any permanent
right of residence since this five-year period
ended prior to 30 April 2006). She had remained
thereafter in the UK for a period from April 2003
to April 2004 during which she did not work or
satisfy any other condition entitling her to reside
in the UK under European Union law. From April
2004 to March 2007 (when she asserted that she
had a permanent right of residence) she again
worked. The Court of Justice held that the rule
laid down in article 16(4) regarding absences
must be applied by analogy in relation to the
period when she had not been working. Since this
was for less than two years, it did not affect her
acquisition of a permanent right of residence as
from 30 April 2006. The Supreme Court
considers it clear (and understood Mr Raza
Husain QC for the respondent to accept) that the
Court of Justice was here identifying a bright line
rule relating to the acquisition of a permanent
right of residence.
11. Even a period out of work exceeding two
years cannot affect a right of permanent residence
acquired from or after 30 April 2006. The point
(2016) 2 LAW
had not acquired any right of permanent residence

before the date of the decision to deport him. The
respondents case on this basis has to be that this is
irrelevant, and that a Union citizen with no right of
permanent residence may nevertheless acquire a right
to enhanced protection under article 28(3)(a).
13. As to the test for acquiring enhanced

protection, Mr Husain submits, on the basis of
Court of Justice decisions in Land BadenWrttemberg v Tsakouridis (Case C-145/09)
[2013] All ER (EC) 183 and MG (Case C400/12), that the requirement in article 28(3)(a)
that the Union citizen have resided in the host
member state for the previous ten years involves
an overall assessment of the degree of integration
at the date of the decision to deport; that there
must in principle have been ten continuous
years of residence, and that a period of
imprisonment will not normally count towards
integration; but that a period of imprisonment
immediately preceding the decision to deport will not
necessarily mean that prior integration is lost to a
degree depriving the Union citizen of enhanced
protection under article 28(3)(a); otherwise, Mr
Husain submits, a delayed decision to deport

could unfairly prejudice a Union citizen.
14. The Court of Appeal accepted this
submission. The respondent had resided in the
UK from March 1985 to March 2001 when he
was imprisoned, and the Court of Appeal saw his
integrative link with the UK as remaining intact
in March 2007 when he was ordered to be
deported. The Court of Appeal had before it the
18
(2016) 2 LAW
judgment in Tsakouridis, but not the later

judgment in MG, delivered on 16 January 2014.
The judgment in MG was delivered without the
benefit of an Advocate Generals opinion and the
case was, presumably, viewed as capable of
resolution without deciding any new point of law.
Both Tsakouridis and MG repay study
nonetheless.
15. In Tsakouridis, Mr Tsakouridis, a Greek
national, was born in Germany in 1978, left
Germany to run a pancake stall in Rhodes from
March to mid-October 2004 and left again in
mid-October 2005 to resume running his stall in
Rhodes. He was arrested there on 19 November
2006 and returned to Germany in March 2007
pursuant to an international arrest warrant issued
against him on 22 November 2005 by a German
court for drug dealing. He was on 28 August
2007 sentenced to six years and six months
imprisonment.
16. The Court of Justice emphasised that, according
F-145
28(3)(a), the court in Tsakouridis said the decisive

criterion is whether the Union citizen has lived in that
member state for the ten years preceding the expulsion
decision (para 31). As regards any absences from
the host member state during that period, it said

that an overall assessment must be made of the
persons situation on each occasion at the precise
time when the question of expulsion arises (para
32), continuing:
33. The national authorities responsible for
applying article 28(3) of Directive 2004/38 are
required to take all the relevant factors into
consideration in each individual case, in
particular the duration of each period of
absence from the host member state, the
cumulative duration and the frequency of those
absences, and the reasons why the person
concerned left the host member state. It must
be ascertained whether those absences involve
the transfer to another state of the centre of the
personal, family or occupational interests of
the person concerned.
34. The fact that the person in question has
been the subject of a forced return to the host
member state in order to serve a term of
imprisonment there and the time spent in
prison may, together with the factors listed in
the preceding paragraph, be taken into account
as part of the overall assessment required for
determining whether the integrating links
previously forged with the host member state
have been broken.
35. It is for the national court to assess whether
that is the case in the main proceedings.
18. In MG, MG, a Portugese national, had come
to the UK on 12 April 1998, and was treated as
having acquired a right of permanent residence
(as she must have done at any rate as from 30
April 2006). On 27 August 2009 (having resided
in the UK for over 11 years) she was sentenced to
21 months imprisonment, and while in prison a
decision was made to deport her. She claimed the
benefit of enhanced protection, and questions
were referred to the Court of Justice regarding the
nature and operation of the ten-year period in
these circumstances. In answering them, the court
to recital 23, the Directive protects from expulsion those

who, having availed themselves of the Treaty rights and
freedoms, have become genuinely integrated into the
host member state, and that the system of protection
afforded under articles 28(1), 28(2) and 28(3) increases
with the degree of integration (paras 24-28). In para
30 the court indicated that it was starting from

the premise that, like the right of permanent
residence, enhanced protection is acquired after a
certain length of residence in the host member
state and can subsequently be lost, and in para
37 it noted that if it were concluded that a person
in Mr Tsakouridiss situation who has acquired a
right of permanent residence in the host member
state does not satisfy the residence condition laid
down in article 28(3) an expulsion measure
could in an appropriate case be justified on
serious grounds of public policy or public
security as laid down in article 28(2) .
17. These statements suggest a progression in the
level of protection, with the possibility of the
highest (enhanced) protection only being earned
after ten years by those already benefitting from
the next highest level through having a right of
permanent residence. With regard to article
19
F-146
imprisonment. However, the fact that that person

resided in the host member state for the ten years
prior to imprisonment may be taken into
consideration as part of the overall assessment
required in order to determine whether the
integrating links previously forged with the host
member state have been broken.
stressed that the ten-year period for enhanced

protection must be calculated by counting back from
the date of the decision ordering expulsion: see paras
24, 28 and 37. It also stressed that periods of
imprisonment cannot be taken into account for the
purposes of granting the enhanced protection provided
for in article 28(3)(a): see para 33. The phrase in
20. In summary, the continuous period of five years
principle seems here to be used more in the

sense of in general than of as a matter of
principle, because the court went on (see para
35) to make clear that the period of residence during
legal residence to which article 16(1) refers may have

occurred at some time in the past. Once acquired from
or after 30 April 2006, a right of permanent residence
continues, unless lost under, or by analogy with,
article 16(4). The residence referred to in article
28(3)(a) must, in contrast, have been for the previous
ten years, previous that is to (here) the decision to
deport. The calculations under articles 16(1) and
28(3)(a) are different: see MG para 37 and Advocate
the ten years preceding the decision to expel might be

non-continuous, citing Tsakouridis, para 32.
19. The court dealt with the significance of long

residence in the host member state prior to
imprisonment as follows:
General Bots opinion, para 28 in Onuekwere.

But how different is not clear. The five-year period
is expressly required to be continuous, and is (it
seems) broken by any period of imprisonment,
but will, once acquired, only be lost by absence
(or, it may be, imprisonment) lasting two years.
The ten-year previous period is, in contrast, only
in principle continuous, and may be noncontinuous, where, for example, interrupted by a
period of absence or imprisonment. Whether the
ten years is to be counted by including or
excluding any such period of interruption is
however unclear.
21. The requirement of an overall assessment to
37. Lastly, as regards the implications of the

fact that the person concerned has resided in
the host member state during the ten years
prior to imprisonment, it should be borne in
mind that, even though - as has been stated in
paras 24 and 25 above - the ten-year period of
residence necessary for the grant of the
enhanced protection provided for in article
28(3)(a) of Directive 2004/38 must be
calculated by counting back from the date of
the decision ordering that person's expulsion,
the fact that the calculation carried out under
that provision is different from the calculation
for the purposes of the grant of a right of
permanent residence means that the fact that
the person concerned resided in the host
member state during the ten years prior to
imprisonment may be taken into consideration
as part of the overall assessment referred to in
para 36 above.
38. In the light of the foregoing, the answer to
Questions 1 and 4 is that article 28(3)(a) of
Directive 2004/38 must be interpreted as
meaning that a period of imprisonment is, in
principle, capable both of interrupting the
continuity of the period of residence for the
purposes of that provision and of affecting the
decision regarding the grant of the enhanced
protection provided for thereunder, even where
the person concerned resided in the host
member state for the ten years prior to
(2016) 2 LAW
identify whether or not a sufficient integrative link

exists is also open in its meaning and effect. An overall
assessment of integration appears on its face a

different test from residence for the previous ten
years. MG indicates that, in considering whether
ten years previous residence exists in a
sufficiently integrative sense when the person
ordered to be deported is or has recently been in
prison at the date of the deportation order,
account can and should be taken of the length of
residence prior to such imprisonment. In MG
itself, the Court of Justice said that, in assessing
whether MG had ten years residence previous to
the deportation order, it was relevant to have
regard to the period (which the court, somewhat
confusingly, also described as a ten-year period 20
(2016) 2 LAW
F-147
exists even in the form of contact with his

children, then from March 2001 until July 2006
(some five years four months) he was in prison
and finally for some eight months he was at
liberty before the decision to deport in March
2007. He had a number of convictions during the
16-year period (and, if material, has had further
more recent convictions).
24. It is true that Mr Tsakouridis had, so far as
appears, shown no intention to return to Germany
when he was arrested, whereas the present
respondent on release from prison remained in the
UK. Nonetheless, the factors outlined above
appear well capable of constituting grounds for a
close review of the question whether, as at the date
in fact it was well over 11 years) which she had

spent at liberty before imprisonment.
22. On the other hand, in considering whether the
necessary integrative link still existed in
Tsakouridis, Advocate General Yves Bot was
inclined to discount Mr Tsakouridiss seasonal
absence from March to October 2004 (AG127),
but took a very different view of the period of a
little over 16 months absence from mid-October
2005 until March 2007 when Mr Tsakouridiss
enforced return to Germany occurred. As to this
he said:
AG124 I consider that an absence of more
than 16 months, such as that in the present
case, may cause the loss of the enhanced
protection granted under article 28(3)(a) of
Directive 2004/38 and that, therefore, it is not
possible to apply mutatis mutandis article
16(4) of the directive.
AG128 In contrast, Mr Tsakouridiss second

absence, from the middle of October 2005
until March 2007, which was interrupted not of
his own accord but because he was subject to
an enforced return to the host member state
following a legal decision, interrupted the tenyear period. I consider that such an absence
shows, in actual fact, that the Union citizen
established himself in another member state
and that, therefore, the link between him and
the host member state is no longer as strong
and may even be totally broken.
23. The Court of Justice did not say anything to
exclude this possibility. Indeed, it extended it by
focusing not merely on the single, second period
of absence, but by referring to the need to
examine all absences: see paras 33-35 cited in
para 17 above. This was against a background
where Mr Tsakouridis had been born in Germany
in 1978 and had lived there continuously for at
least 26 years, prior to 2004. In contrast, the
present respondent was born and for his first 28
years lived abroad (until 1985), he then came to
and lived for some 16 years in the UK (until
2001), during which time he developed but then
lost a family life, which it appears no longer
of the decision to deport in 2007, the respondents

integrative links with the UK were such as to entitle him
to enhanced protection on the basis of residence in the
UK for the previous ten years. This review was not
conducted at all at the Tribunal level, since it was
assumed that the ten-year period was established.

The Court of Appeal examined it, but I do not
consider that the Court of Appeals examination
can stand. It was conducted on the basis (which
can now be seen to have been erroneous) that the
respondent had a permanent right of residence,
which, even if not a pre-requisite to enhanced
protection, must be relevant to its acquisition or
retention. On any remission the Tribunal will also
need to consider whether, if the Secretary of State
would otherwise be entitled to deport, this would
be proportionate: see article 28(1).
25. The primary question before the Supreme
Court is whether enhanced protection under article
28(3)(a) depends upon the possession of a right of
permanent residence under article 16 and article 28(2).
The case in favour of this is that the protection

afforded under articles 28(2) and 28(3) is
intended to be progressive (see para 17 above).
Further, article 28, headed Protection against
expulsion appears in Chapter VI of the
Directive, headed Restrictions on the right of
entry and the right of residence on grounds of
public policy, public security or public health.
The implication is that the article 28(2) and 28(3)
protections benefit those enjoying rights of
21
F-148
(3) what the true relationship is between the

ten year residence test to which article 28(3)(a)
refers and the overall assessment of an
integrative link.
***
residence; and that article 28(3) is predicated

upon the enjoyment of such a right. This (it can
be suggested) means, most naturally, the right of
permanent residence referred to in article 28(2).
26. The case against is that neither article 28(3)
nor the existing case law identifies any need for a
right of permanent residence in order for a Union
citizen to invoke enhanced protection, and that, if
any right of residence at all is required in this
context, a simple right to reside under, for
example, articles 6, 7, 12 or 13(1) should suffice
(if it could be established to exist). The
respondent (although he may not have been a
worker at any material time) may enjoy a simple
right of residence under article 13(2)(a), as a
divorcee who was married to a UK citizen here
for over three years.
27. A majority of the Court favours the view that
ANNEX
Relevant provisions of Directive 2004/38/EC
RECITALS:
(17) Enjoyment of permanent residence by Union
citizens who have chosen to settle long term in the
host member state would strengthen the feeling of
Union citizenship and is a key element in promoting
social cohesion, which is one of the fundamental
objectives of the Union. A right of permanent
residence should therefore be laid down for all Union
citizens and their family members who have resided in
the host member state in compliance with the
conditions laid down in this Directive during a
continuous period of five years without becoming
subject to an expulsion measure.
(18) In order to be a genuine vehicle for integration
into the society of the host member state in which the
Union citizen resides, the right of permanent
residence, once obtained, should not be subject to any
conditions.
possession of a right of permanent residence is not

needed in order to enjoy enhanced protection under
article 28(3)(a). But a minority regards the position as
at the least unclear and so as requiring a reference to
the Court of Justice. The Supreme Court accordingly
refers to the Court of Justice the question:
(1) whether enhanced protection under article
28(3)(a) depends upon the possession of a right of
permanent residence within article 16 and article
28(2).
(23) Expulsion of Union citizens and their family

members on grounds of public policy or public
security is a measure that can seriously harm persons
who, having availed themselves of the rights and
freedoms conferred on them by the Treaty, have
become genuinely integrated into the host member
state. The scope for such measures should therefore be
limited in accordance with the principle of
proportionality to take account of the degree of
integration of the persons concerned, the length of
their residence in the host member state, their age,
state of health, family and economic situation and the
links with their country of origin.
(24) Accordingly, the greater the degree of integration of
28. In case the answer to this question is in the

negative, the Supreme Court also considers it
necessary or appropriate to refer to the Court of Justice
the further questions:
(2) whether the period of residence for the

previous ten years, to which article 28(3)(a)
refers, is
(a) a simple calendar period looking back
from the relevant date (here that of the
decision to deport), including in it any
periods of absence or imprisonment,
(b) a potentially non-continuous period,
derived by looking back from the
relevant date and adding together
period(s) when the relevant person was
not absent or in prison, to arrive, if
possible, at a total of ten years previous
residence,
(2016) 2 LAW
Union citizens and their family members in the host member

state, the greater the degree of protection against expulsion
should be.
Provisions:
CHAPTER III - Right of residence
Article 6 Right of residence for up to three months
22
(2016) 2 LAW
F-149
1. Union citizens shall have the right of residence on

the territory of another member state for a period of
up to three months without any conditions or any
formalities other than the requirement to hold a valid
identity card or passport.
2. The provisions of para 1 shall also apply to family
members in possession of a valid passport who are not
nationals of a member state, accompanying or joining
the Union citizen.
4. Once acquired, the right of permanent residence

shall be lost only through absence from the host
member state for a period exceeding two consecutive
years.
Article 7 Right of residence for more than three months
Article 28 Protection against expulsion
1. All Union citizens shall have the right of residence

on the territory of another member state for a period
of longer than three months if they:
(a) are workers or self-employed persons in the
host member state; or
(b)
1. Before taking an expulsion decision on grounds of

public policy or public security, the host member state
shall take account of considerations such as how long
the individual concerned has resided on its territory,
his/her age, state of health, family and economic
situation, social and cultural integration into the host
member state and the extent of his/her links with the
country of origin.
2. The host member state may not take an expulsion
decision against Union citizens or their family
members, irrespective of nationality, who have the
right of permanent residence on its territory, except on
serious grounds of public policy or public security.
3. An expulsion decision may not be taken against
Union citizens, except if the decision is based on
imperative grounds of public security, as defined by
member states, if they:
(a) have resided in the host member state for the
previous ten years; or
(b) are a minor, except if the expulsion is
necessary for the best interests of the child, as
provided for in the United Nations Convention
on the Rights of the Child of 20 November
1989.
CHAPTER VI - Restrictions on the right of entry and

the right of residence on grounds of public policy, public
security or public health.
Article 13 Retention of the right of residence by family

members in the event of divorce, annulment of marriage or
termination of registered partnership.
1. Without prejudice to the second subparagraph,

divorce, annulment of the Union citizens marriage or
termination of his/her registered partnership, as
referred to in point 2(b) of article 2 shall not affect the
right of residence of his/her family members who are
nationals of a member state.
Before acquiring the right of permanent residence, the
persons concerned must meet the conditions laid
down in points (a), (b), (c) or (d) of article 7(1).
CHAPTER IV: RIGHT OF PERMANENT RESIDENCE
SECTION I - ELIGIBILITY
Article 16 General rule for Union citizens and their

family members
1. Union citizens who have resided legally for a

continuous period of five years in the host member
state shall have the right of permanent residence there.
This right shall not be subject to the conditions
provided for in Chapter III.
2. Paragraph 1 shall apply also to family members
who are not nationals of a member state and have
legally resided with the Union citizen in the host
member state for a continuous period of five years.
3. Continuity of residence shall not be affected by
temporary absences not exceeding a total of six
months a year, or by absences of a longer duration for
compulsory military service, or by one absence of a
maximum of 12 consecutive months for important
reasons such as pregnancy and childbirth, serious
illness, study or vocational training, or a posting in
another member state or a third country.
*****
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23
F-150
MB v Secretary of State for Work & Pensions [UK-SC]
(2016) 2 LAW F-150 (UK-SC)
born after those dates, the ages will converge over a

period of time. At the time relevant to this appeal, the
acquired gender of a transgender person was not
recognised for the purpose of determining their
qualifying pension age, if they were married.
So far as MB was concerned, she was registered at
birth as a man but has lived as a woman since 1991
and underwent gender reassignment surgery in 1995.
She has not applied for a full gender recognition
certificate because she and her wife are married and
wish to remain so, a situation at that time precluded
by the conditions for obtaining a full gender
recognition certificate [13]. On 31 May 2008, MB
turned 60. In July of that year, she applied for a state
retirement pension, backdated to her 60th birthday.
That application was rejected on 2 September 2008
because, in the absence of a gender recognition
certificate, MB could not be treated as a woman for
the purposes of pension eligibility and would instead
become eligible at 65, as if she were a man. The Firsttier Tribunal, Upper Tribunal and Court of Appeal all
agreed with that approach [14]. The appellant
challenged the compatibility of that approach with the
Directive.
JUDGMENT
The Supreme Court refers the question to the Court of
Justice of the European Union. Lord Sumption gives the
reasons for the referral, with which the rest of the
Panel agree.
REASONS FOR THE REFERRAL
The question referred is whether the Directive precludes

Wednesday, 10 August 2016

MB
(Appellant)
v
Secretary of State for
Work and Pensions
(Respondent)
[2016] UKSC 53
***
10 August 2016
PRESS SUMMARY
MB (Appellant) v Secretary of State for Work
and Pensions (Respondent) [2016] UKSC 53
Wilson, Lord Sumption, Lord Toulson, Lord Hodge
BACKGROUND TO THE APPEALS
This case concerns Council Directive 97/7/EEC on
the Progressive Implementation of the Principle of Equal
Treatment for Men and Women in Matters of Social Security
(the Directive). Article 4 of the Directive provides

that there shall be no discrimination whatsoever on
ground of sex either directly, or indirectly by reference in
particular to marital or family status. Article 7(a)
provides that the Directive (which has direct effect) was
the imposition in national law of a requirement that, in

addition to satisfying the physical, social and psychological
criteria for recognising a change of gender, a person who has
changed gender must also be unmarried in order to qualify for
a state retirement pension [18].
to be without prejudice to the right of Member States to

exclude from its scope the determination of pensionable age
for the purpose of granting old age and retirement pensions.
The United Kingdom has exercised that right.

Under United Kingdom law, a woman born before 6
April 1950 is eligible for the statement retirement
pension at the age of 60, and a man born before 6
December 1953 is eligible at the age of 65. For people
Before 2005, the position under UK law was that a

person was treated for all legal purposes as having the
gender determined by their biological characteristics
at birth. In 2002, the European Court of Human
Rights deemed that to be incompatible with Article 8
of the European Convention on Human Rights (the
right to private and family life) and, in so far as it
prevented a transgender person from marrying a
person of the same gender, incompatible with Article
12 (the right to marry and found a family) [4]. The Gender
Recognition Act 2004 (which came into force on 4 April
2005) amended the situation such that a persons
acquired gender would be legally recognised if they
satisfied certain criteria. If a full certificate of gender

index
(2016) 2 LAW
24
(2016) 2 LAW
F-151
[2016] UKSC 53
recognition was issued to a person, their entitlement to a

state retirement pension would be decided according tothe
rules that apply to the acquired gender [7]. If, however, a
person was married, because same-sex marriages were not at
that time recognised, they received only an interim gender
recognition certificate which did not change their legally
recognised gender but, first, entitled them to have their
marriage annulled after which a full gender recognition
certificate would follow [8-9]. Once the Civil Partnership
JUDGMENT
MB (Appellant) v Secretary of State for
Work and Pensions (Respondent)
before
Lady Hale, Deputy President

Lord Wilson
Lord Sumption
Lord Toulson
Lord Hodge
Act 2004 came into force in December 2005 a married

person who changed their gender could have their
marriage annulled and subsequently enter a civil
partnership with their former spouse [10].
In 2014, that situation was changed by the entry into force
of the Marriage (Same Sex Couples) Act 2013. The Gender
Recognition Act 2004 was amended so that a full
gender recognition certificate could, from then on, be
issued to a married applicant with the consent of the
applicants spouse [11].
MB has argued that the CJEU has recognised that
JUDGMENT GIVEN ON
10 August 2016
Heard on 5 July 2016
Appellant
Respondent
Lord Pannick QC
Jason Coppel QC
Kerry Bretherton QC
Ben Lask
Christopher Stothers
(Instructed by The
(Instructed by Arnold &
Government Legal
Porter)
Department)
LORD SUMPTION: (with whom Lady Hale,
Lord Wilson, Lord Toulson and Lord Hodge
agree)
Introduction
1. Council Directive 79/7/EEC on the Progressive
Implementation of the Principle of Equal
Treatment for Men and Women in Matters of
Social Security is concerned with state benefits,
including old age and retirement pensions. It
provides by article 4 that there shall be no
discrimination whatsoever on ground of sex either
directly, or indirectly by reference in particular to
marital or family status ... The material provisions
of the Directive have direct effect.
2. Article 7.1(a) of the Directive provided that it
was to be without prejudice to the right of
member states to exclude from its scope the
determination of pensionable age for the purpose
of granting old age and retirement pensions. The
United Kingdom has exercised that right. The
combined effect of (i) the Social Security
Contributions and Benefits Act 1992, section 44,
article 4(1) of the Directive prohibits discrimination between

persons of a particular birth gender and people who have
acquired that gender and, although it is for member
states to determine the conditions by which someone

may acquire a gender, that only applies to physical or
psychological characteristics and not to marital status
[15(1)-(2)]. The imposition of a marital status criterion on a
person who satisfies the states physical and psychological
criteria must therefore be unlawful, and cannot appropriately
affect eligibility for state retirement pension [15(3)-(4)]. MB
therefore argues that the Gender Recognition Act 2004
discriminates against her directly on the grounds of sex, and
indirectly because the great majority of people who have
undergone gender reassignment have been reassigned from
male to female [15(5)].
The Secretary of State argues that the UK procedure

by which, for a persons acquired gender to be
recognised, a gender recognition certificate must be
obtained, is lawful [16(1)-(3)]. There is no reason that
the conditions for the acquisition of a gender should
be limited to satisfaction of physical and
psychological criteria. Conditions may properly
reflect social factors such as the status of marriage,
which may include a definition of marriage as
between a man and a woman [16(4)-(5)]. No question
of indirect discrimination arises [16(6)].
The Supreme Court is divided on the correct answer to the
question and, since there is no CJEU authority directly in
point, it refers the question for their guidance [17].
in the judgment
***
25
F-152
grant the application if the applicant has or has had

gender dysphoria, has lived in the acquired gender
for at least two years up to the date of the
application, intends to live in the acquired gender
until death and satisfies the evidential requirements
laid down by section 3. Section 3 requires the Panel
to be furnished with a report from two medical
practitioners or from a medical practitioner and a
psychologist. If the Panel concludes having regard
to the evidence required by section 3 that the criteria
in section 2 are satisfied, it must grant the application.
7. By section 9 of the Act, where a full certificate is
(ii) the definition of pensionable age in section

122 of the Act, and (iii) the Pensions Act 1995,
Schedule 4, paragraph 1, is that a woman born
before 6 April 1950 becomes eligible for the state
retirement pension (referred to in the legislation
as a Category A retirement pension) at the age
of 60, and a man born before 6 December 1953
becomes eligible at the age of 65. The pensionable
age of younger persons will converge over a
period of time and will eventually be the same, but
these changes do not affect the present appeal.
3. At the time which is relevant to this appeal, the
issued, the acquired gender thereafter becomes the

persons gender for all purposes. Schedule 5, paragraph
acquired gender of a transsexual person was not

recognised for the purpose of determining the qualifying
age for a state pension, if that person was and remained
party to a subsisting marriage. The question at issue
7 of the Gender Recognition Act deals specifically

with the effect of a full gender recognition
certificate on eligibility for a state pension. It
provides that once the certificate has been issued, any
on this appeal is whether that state of affairs was

compatible with the Directive.
question of entitlement to a state retirement pension is to

be decided as if the persons gender has always been the
acquired gender. Accordingly, where the person was
The United Kingdom statutory framework
4. Until 2005, the law made no provision for

gender reassignment in any of the three
jurisdictions of the United Kingdom. A person was
a man immediately before the issue of the

certificate but had attained the age at which a
woman would have attained pensionable age, she is
for all legal purposes treated as having the gender

determined by the application of biological criteria at
birth
without
regard
to
any
psychological
characteristics or later surgical intervention. In
to be treated as having attained pensionable age upon the

issue of the certificate.
8. At the time that the Gender Recognition Act was

passed a valid marriage could subsist in law only between
a man and a woman. This had always been the law,
but had been confirmed by the Matrimonial Causes Act
1973, section 11(c). For this reason, the 2004 Act made
Goodwin v United Kingdom (2002) 35 EHRR 18,

the European Court of Human Rights held that this was
incompatible with article 8 of the European
Convention on Human Rights and that, so far as it
prevented a transsexual from contracting a valid
marriage with a person of the same birth gender, it
was also incompatible with article 12.
special provision for married applicants, whose change of

legally recognised gender would otherwise have resulted in
their being married to a person of the same gender as
themselves. This will be referred to below as the
marriage condition. By section 4(2) an unmarried

applicant who satisfied the criteria for gender
recognition in sections 2 and 3 was entitled to a full
gender recognition certificate, whereas by section 4(3)
5. In consequence, Parliament enacted the Gender

Recognition Act 2004, which received royal assent on
1 July 2004 and came into force on 4 April 2005.
Section 1 of the Act provided that a person could
apply to a Gender Recognition Panel for a full
gender recognition certificate recording a change of
his or her birth gender on the basis of living in
the other gender. The applicants new gender was
referred to as the acquired gender.
6. Sections 2 and 3 of the Gender Recognition Act
deal with the criteria for determining whether a
change of gender has occurred. Section 2 provides
that the Gender Recognition Panel is required to
(2016) 2 LAW
a married applicant who satisfied the same criteria was

entitled only to an interim gender recognition certificate.
9. Unlike a final gender recognition certificate, an

interim gender recognition certificate did not itself effect
any change in the applicants legally recognised gender. It
merely entitled a married applicant to apply to have the
marriage annulled by a court. The Matrimonial Causes
Act 1973 (as amended), section 12(g), provided that
upon the issue of an interim gender recognition
certificate the applicants marriage became
26
(2016) 2 LAW
F-153
14. On 31 May 2008 MB attained the age of 60. On

28 July 2008, she applied for a state retirement pension,
backdated to 31 May 2008, on the footing that she was
a woman. The application was rejected on 2
September 2008 on the ground that in the absence of a
voidable. By section 13(2A) of the same Act, the

court was then bound to grant a decree of nullity,
provided that proceedings to that end were
instituted within six months from the date of issue
of the interim gender recognition certificate, and
subject to certain other conditions which are
irrelevant for present purposes. Only when this had
full gender recognition certificate, she could not be treated

as a woman for the purpose of determining her pensionable
age. That decision was subsequently upheld by the
been done did the applicant become entitled to a full

gender recognition certificate. The court granting the
decree of nullity was required by section 5(1) of the Gender
Recognition Act to issue the full certificate.
First-tier Tribunal (18 November 2009), the Upper

Tribunal (13 September 2013) and the Court of
Appeal (31 July 2014). Permission to appeal was
granted by the Supreme Court of the United
Kingdom on 11 March 2015.
THE ARGUMENTS
15. The principal arguments for MB may be
summarised as follows:
(1) The Court of Justice has already recognised that
the prohibition in article 4(1) of the Directive of
10. Shortly after the Gender Recognition Act was

passed, Parliament passed the Civil Partnership Act
2004, which received royal assent on 18 November 2004
and came into force on 5 December 2005. The Act
provided for the legal recognition of same-sex
partnerships upon registration. A civil partnership was
not a marriage but had substantially the same legal
consequences as a marriage. Once the Civil Partnership
Act had come into force, a married person to whom
an interim gender recognition certificate had been
issued could, after obtaining the annulment of the
marriage, enter into a civil partnership with his or
her former spouse.
discrimination on grounds of sex extends to discrimination

between persons of a given birth gender and persons who
have acquired the same gender by later reassignment: P v
S and Cornwall County Council (Case C-13/94)

[1996] ECR I-2143, para 20; Richards v Secretary
of State for Work and Pensions (Case C-423/04)
[2006] ECR I-3585, paras 24, 29-30.
(2) MB accepts that in principle it is for member states
11. These statutory arrangements were changed by

which came
into full force on 10 December 2014. The Act of
2013 provided for same sex couples to enter into a
marriage. Schedule 5 amended section 4 of the
Gender Recognition Act 2004 so as to provide that a
the Marriage (Same Sex Couples) Act 2013,
to determine by their domestic law the conditions on which

a persons change of gender may be legally recognised: KB
wife continued and still continue to live together

and wish to remain married. For religious reasons, they
v National Health Service Pensions Agency and

Secretary of State for Health (Case C-117/01)
[2004] ECR I-541, para 35; Richards v Secretary of
State for Work and Pensions (Case C-423/04)
[2006] ECR I-3585, para 21. But she submits that
the power to impose conditions is confined to
conditions relating to the objective physical or
psychological characteristics which determine
whether an applicant is a man or a woman: see
Richards, at para 38 (and cf the opinion of
Advocate General Jacobs at para 57). It may not be
used to impose conditions relating to such matters
as marital status which have nothing to do with the
determination of an applicants gender.
(3) Since the holder of an interim gender
recognition certificate must have satisfied the
physical and psychological criteria for gender
recognition, the imposition of a further condition for
are unwilling to see their marriage annulled, even if it can

be replaced by a civil partnership.
obtaining a full certificate which applies to married

applicants only constitutes unlawful discrimination.
Gender Recognition Panel must issue a full gender

recognition certificate to a married applicant if the
applicants spouse consents. The Act of 2013 does not apply
retrospectively and does not affect the present appeal.
12. The relevant statutory provisions are attached.

THE SITUATION OF MB
13. MB (the initials have been used in these

proceedings to protect her anonymity) was born on
31 May 1948 and was registered at birth as a man.
MB was married on 21 September 1974. In 1991 she began
to live as a woman and in 1995 underwent sex
reassignment surgery. MB has not applied for a gender
recognition certificate since the coming into force of the
Gender Recognition Act. This is because she and her
27
F-154
acknowledging, as para 103 of Goodwin does, that it

was for national law to determine the conditions for
recognising gender reassignment, the European Court
of Human Rights acknowledged that they may include
conditions under which past marriages cease to be
valid. This was implicitly accepted by the Court of
Justice in Richards, when it adopted the principle thus
stated at para 21.
(5) Since the decision in Goodwin, the European
Court of Human Rights has upheld the marriage
condition as being in itself compatible with the
Human Rights Convention (Parry v United Kingdom
(Application No 42971/05)) as well as a similar
condition in corresponding legislation in Finland
(Hamalainen v Finland (2014) 37 BHRC 55). The
reason was that, although the Convention requires
states to recognise the acquired gender of transsexual
persons, it does not require them to allow marriages
between same sex couples. In the absence of such a
requirement, a state which does not recognise samesex marriages has a legitimate interest in maintaining
the traditional concept of marriage between a man and
a woman. That interest justified the imposition of the
marriage condition in the Finnish legislation. The
proviso could not be regarded as disproportionate
given that a civil partnership was available to same
sex couples as an alternative to marriage.
(6) No question of indirect discrimination arises. Even
on the footing that most gender reassignments are
male to female, there is no reason to regard it as any
more difficult for a male to female transsexual to
qualify for a full gender recognition certificate than it
is for a female to male transsexual.
THE SUPREME COURTS CONCLUSION
(4) Even if it were legitimate to impose the

marriage condition for the purpose of protecting the
status of marriage as a relationship between a man
and a woman, that could not justify imposing the
same condition on eligibility for a state retirement
pension, to which marital status is likewise
irrelevant.
(5) Although MBs primary case is that the Gender
Recognition Act directly discriminates against her on
grounds of sex, she also contends that it discriminates
indirectly, because the evidence is that the great
majority of persons who have undergone gender

reassignment have been reassigned from male to
female. For the above reasons, it cannot be justified.
16. The principal arguments for the Secretary of
State may be summarised as follows:
(1) The decision of the Court of Justice in Richards
was concerned with discrimination arising from the
absence at the relevant time of any provision in
English law for recognising gender reassignment.
That lacuna has been filled in the United Kingdom
since 2005. The decision is of limited relevance to the
conditions on which gender reassignment may
lawfully be recognised under a comprehensive
legislative scheme for recognition.
(2) At the time when Richards was decided, the Court
of Justice had already recognised in KB that it was for
member states to determine those conditions, and it
reaffirmed that principle in Richards itself: see para
15(2) above. A corresponding principle is applied
under the European Convention on Human Rights:
Goodwin v United Kingdom, para 103.
(3) The United Kingdom may properly make the
recognition of gender change dependent on a process
of registration or certification, as the Gender
Reassignment Act does. Under the Act, a person born
a man is not a woman merely by virtue of establishing
that she has the qualifying social, physical and
psychological characteristics. A full certificate must
have been issued.
(4) There is no reason why the conditions for the issue
of that certificate should be limited to satisfaction of
the social, physical and psychological criteria of
gender. Gender reassignment has significant social
implications which the law may also regulate. The
conditions may therefore properly reflect criteria such
as the status of marriage, which are legitimate social
considerations not regulated by EU law. In
(2016) 2 LAW
17. The Supreme Court is divided on the question, and

in the absence of Court of Justice authority
directly in point considers that it cannot finally
resolve the appeal without a reference to the Court of
Justice.
THE QUESTION
18. The question referred is whether Council

Directive 79/7 EEC precludes the imposition in national
law of a requirement that, in addition to satisfying the
physical, social and psychological criteria for
recognising a change of gender, a person who has
changed gender must also be unmarried in order to
qualify for a state retirement pension.
*****
28
(2016) 2 LAW
R (Public Law Project) v Lord Chancellor [UK-SC]
(2016) 2 LAW F-155 (UK-SC)
In April 2013, the Ministry of Justice (MOJ)

issued a paper in which it stated that, subject to certain
specific exceptions, the Government would proceed with

the introduction of a residence test so that only those who are

lawfully resident in the UK (or Crown Dependencies or
British Overseas Territories) at the time of the application
Wednesday, 10 August 2016
and have so resided for a continuous period of at least

12 months at any point in the past would be eligible for
civil legal aid. In September 2013, the Lord Chancellor
decided to proceed with the proposal and to make
regulations to that effect in the form of delegated
legislation (the draft order), which was put before
Parliament on 31 March 2014.
Before the draft order was laid before Parliament,
the Public Law Project applied to the High Court for a
declaration that the draft order was unlawful on the basis
that it was (i) ultra vires, i.e. outside the scope of the power
granted to the Lord Chancellor by LASPO to bring
forward delegated legislation; and (ii) unjustifiably
discriminatory in its effect.
The Divisional Court held that the draft order was
unlawful on both grounds. Following the decision of the
Divisional Court, the Lord Chancellor withdrew the
draft order before any debate in the House of Lords
could take place. On appeal, the Court of Appeal allowed
the Lord Chancellors appeal on both grounds, holding that
the draft order was intra vires and that, while it was
discriminatory in its effect, the discrimination could
be justified. The Public Law Project now appeal to the
R (on the application of

(Appellant)
The Public Law Project)
Lord Chancellor
(Respondent)

[2016] UKSC 39
***
13 July 2016
PRESS SUMMARY
R (on the application of The Public Law Project)
(Appellant) v Lord Chancellor (Respondent)
[2016] UKSC 39
JUSTICES: Lord Neuberger (President), Lady Hale
(Deputy President), Lord Mance, Lord Reed, Lord
Carnwath, Lord Hughes, Lord Toulson
BACKGROUND TO THE APPEAL
This appeal concerns the legality of attempts by the Lord
Chancellor to introduce a residence test for civil legal aid by
amending the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO). Part 1 of LASPO came
Supreme Court on both grounds.
JUDGMENT
Following a hearing at which the Court heard
argument on the ultra vires issue and indicated that it did not
need to hear argument on the discrimination issue, the
into force on 1 April 2013. It includes section 9,

subsection (1) of which provides that civil legal
services are to be available to an individual if they are
legal services described in Part 1 of Schedule 1, and
the Director of Legal Aid Casework has determined
that the individual qualifies for the services in
accordance with Part 1 of LASPO. Part 1 of Schedule
1 accordingly sets out the services for which civil
legal aid is available. Subsection 9(2) permits the
Lord Chancellor to (a) add to, and (b) vary or
omit services in Part 1 of the Schedule.
F-155
Supreme Court unanimously allows the Public Law Projects

appeal on the ultra vires issue. Lord Neuberger gives the
only judgment, with which the other Justices agree.

The Public Law Project contend that the exclusion of a
specific group of people from the right to receive legal services
on the ground of personal circumstances or characteristics,
which have nothing to do with the nature of the issue or
services involved or the individuals need, or ability to pay, for
the services, is not within the scope of the power accorded to
the Lord Chancellor by section 9(2)(b) of LASPO, and that

index
nothing in section 41 undermines that contention.

That argument is accepted by the Court [30]. In
declaring subordinate legislation to be outside the
scope of the statutory power pursuant to which it was
29
F-156
(2016) 2 LAW
purportedly made, the Court is upholding the

supremacy of Parliament over the Executive [23].
Section 9(2)(b) provides a power to vary or omit
services, but the relevant parts of the draft order do
not seek to vary or omit services; rather, they seek to
reduce the class of individuals who are entitled to
receive those services by reference to a personal
characteristics or circumstance unrelated to the
services (i.e. length of residency) [30].
This interpretation of the wording of section 9(2) is
supported by the wider statutory context. Each of the
services identified in Part 1 and Part 2 ofSchedule 1 is
linked to a specific type of legal issue orclaim,and has
nothing to do with the personal circumstances or
characteristics in particular the geographical residence
of the potential recipient of the services [31].
This conclusion is also supported by contrasting the
wording of the two subsections of section 9. Subsection (1) clearly distinguishes between the question
of whether the particular services qualify and whether
the particular individual qualifies [33]. Section 9(2) is
concerned with the services which qualify, and it is
section 11 which appears to be concerned with
identifying the characteristics or circumstances of
individuals who are to qualify for civil legal aid. The
criteria that section 11 sets out all relate to the issue
involved, the services concerned, or the need of the
individual for financial assistance, in contrast to the
draft order. This indicates that the draft order is
attempting to do something which the legislature
never had in mind when enacting section 9 [34].
The Court of Appeal concluded that section 41
could be invoked to defeat the contention that the
Lord Chancellor could not make the draft order under
section 9. While it is true that section 41(2)(b) permits
any order made under section 9(2)(b) to make
provision by reference to services provided for a
particular class of individual, this cannot extend the
power under section 9(2)(b) so as to exclude a whole
class of individuals from the scope of Part 1 of
LASPO by reference to their residence [36]. Section 41
is clearly intended to grant ancillary powers to those
primarily granted under section 9 [36].
Accordingly, the appeal should be allowed on the
first, ultra vires, issue, and the Court does not have to
deal with the discrimination issue [39].
Trinity Term
[2016] UKSC 39

in the judgment
1. This appeal concerns the lawfulness of a proposal
JUDGMENT
R (on the application of
The Public Law Project) (Appellant) v
Lord Chancellor (Respondent)
before
LORD NEUBERGER, President
LORD MANCE
LORD REED
LORD CARNWATH
LORD HUGHES
LORD TOULSON
JUDGMENT GIVEN ON
13 July 2016
Heard on 18 April 2016
Appellant
Respondent
Michael Fordham QC
James Eadie QC
Ben Jaffey
Patrick Goodall QC
Naina Patel
Simon Pritchard
Alison Pickup
David Lowe
(Instructed by Bindmans
(Instructed by The
LLP)
Government Legal
Department)
Intervener (Office of the
Intervener (The Law
Childrens Commissioner)
Society)
Written submissions only Written submissions
only
Paul Bowen QC
Dinah Rose QC
Eric Metcalfe
Iain Steele
Catherine Meredith
(Instructed by The Law
Society)
(Instructed by Freshfields
Bruckhaus Deringer LLP)
***
LORD NEUBERGER: (with whom Lady Hale,

Lord Mance, Lord Reed, Lord Carnwath, Lord
Hughes and Lord Toulson agree)
by the Lord Chancellor (then The Rt Hon Christopher
Grayling MP) in September 2013 to introduce a
***
30
(2016) 2 LAW
residence test for civil legal aid by amending Schedule 1

to the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO), by means of delegated
legislation, in the form of a statutory instrument,
F-157
(b) the Director has determined that the individual

qualifies for the services in accordance with
this Part
(2) The Lord Chancellor may by order
(a) add services to Part 1 of Schedule 1, or
(b) vary or omit services described in that Part,
(whether by modifying that Part or Parts 2, 3
or 4 of the Schedule).
which I will refer to as the draft order.

Part 1 of LASPO
2. In November 2010, the Ministry of Justice
published a consultation paper entitled Proposals for
the Reform of Legal Aid in England and Wales.
Following the subsequent public consultation
exercise, the Ministry published a paper entitled
Reform of Legal Aid in England and Wales: the
Government Response in June 2011. The proposals in
this June 2011 paper were then largely reflected in a
Bill which was put before Parliament, and which,
subject to amendments, was enacted as LASPO, a
statute which was enacted on 1 May 2012. As its title
suggests, LASPO is concerned with a number of
different areas of the legal system.
3. This case is concerned with Part 1 of LASPO, which
includes, in subsection (3), cases where the denial of

civil legal services would be a breach of [an]
individuals Convention rights or EU rights.
7. Section 11 of LASPO is entitled Qualifying for
civil legal aid. Section 11(1) requires the Director to
came into force on 1 April 2013, is entitled Legal Aid, and

contains 43 sections. Sections 1 to 12 are headed
the Lord Chancellor (a) must consider the circumstances in

which it is appropriate to make civil legal services available,
Provision of legal aid. Sections 8 to 12 are

concerned with civil legal services, and sections 13 to
20 with Criminal legal aid. Sections 21 and 22 are
concerned with Financial resources, sections 23 to
26 with Contributions and costs, and sections 27 to
30 with Providers of services etc. Sections 31 to 43
are Supplementary provisions.
4. Section 1(1) of LASPO imposes on the Lord
Chancellor a duty to secure that legal aid is made
available in accordance with this Part, and section 1(4)
enables him to do anything to further those functions.
Section 2(1) empowers him to make such
arrangements as [he] considers appropriate to carry
out those functions, and section 3 is concerned with
standards of service. Section 4(1) requires the Lord
Chancellor to appoint a Director of Legal Aid
Casework, defined as the Director. Section 8
defines civil legal services as the provision of legal
advice and assistance as to the law, proceedings,
disputes and enforcement other than in connection
with criminal matters.
5. Section 9 of LASPO is entitled General cases, and
it provides:
and (b) must, in particular, consider the extent to

which the criteria ought to reflect the factors set out in
subsection (3). The ten factors set out in section
11(3) include (a) the likely cost and likely benefit of
providing the services, (b) the availability of
resources, (e) the nature and the seriousness of the
case, (f) the availability of alternative services, (g) the
prospects of success, (h) the conduct of the individual
concerned in connection with services made
available
under
this
Part,
and
(j) the public interest.
6. Section 10 of LASPO deals with Exceptional cases,

in respect of which civil legal services are to be available even
though they would not be available under section 9. It
determine whether an individual qualifies for civil legal

services by reference to (a) his financial resources (as defined
in section 21 and regulations under that section), and (b)
criteria set out in regulations. Section 11(2) provides

that, in setting the criteria under section 11(1)(b),
8. Section 41 of LASPO is headed Orders,

regulations and directions, and subsections (1),
(2) and (3) are in these terms:
(1) Orders, regulations and directions under this
Part
(a) may make different provision for different
cases, circumstances or areas,
(b) may make provision generally or only for
specified cases, circumstances or areas,
and
(c) may make provision having effect for a
period specified or described in the order,
regulations or direction.
(2) They may, in particular, make provision by
reference to
(1) Civil legal services are to be available to an

individual under this Part if
(a) they are civil legal services described in Part 1
of Schedule 1, and
31
F-158
(a) services provided for the purposes of

proceedings before a particular court, tribunal
or other person,
(b) services provided for a particular class of
individual, or
(c) services provided for individuals selected by
reference to particular criteria or on a
sampling basis.
(3) Orders and regulations under this Part
(a) may provide for a person to exercise a
discretion in dealing with any matter,
(b) may make provision by reference to a
document produced by any person, and
(c) may make consequential, supplementary,
incidental, transitional or saving provision.
include the services listed in this Part of this Schedule,

except to the extent that Part 1 of this Schedule
provides otherwise. Part 2 contains 18 paragraphs,
and (with the exception of para 14) they all begin with
the words Civil legal services provided in relation
to, and then refer to specific areas, including
personal injury or death (para 1), a claim in tort in
respect of negligence (para 2), damage to property
(para 6), a claim in tort in respect of breach of
statutory duty (para 8) and a benefit, allowance,
payment, credit or pension under certain statutes
(para 15). Paragraph 14 of Part 2 of Schedule 1 is
Civil legal services provided to an individual in
relation to matters arising out of establishing,
carrying on, or terminating a business.
11. Part 3 of Schedule 1 is concerned with Advocacy:
exclusion and exceptions, and it sets out tribunals before
which advocacy is within the Services covered by Part
1 of the Schedule. Part 4 of that Schedule is concerned
with Interpretation.
Section 41(6) provides that a statutory instrument

containing an order made under any section
mentioned in section 41(7) may not be made unless a
draft of the instrument has been laid before, and
approved by a resolution of, each House of
Parliament, and section 41(7) included, in para (a),
orders under section 9.
9. Schedule 1 to LASPO is headed Civil Legal
Services and Part 1 sets out the Services, which are
referred to in section 9(1)(a). Over 40 categories are
set out in Part 1 of Schedule 1, and almost all of them
begin with the words Civil legal services provided
either to or in relation to. They include care,
supervision and protection of children (para 1),
special educational needs (para 2), and abuse of an
individual when a child or a vulnerable adult,
but only where (a) the services are provided to the
individual (para 3). The categories also include
appeals relating to welfare benefits (para 8), victims
of domestic violence and family matters (para 12),
and judicial review, save where such review will
produce no benefit to the individual concerned (para
19). Other categories are breach of Convention rights
by a public authority (para 22), certain specified
immigration matters (paras 24-31), loss of home and
homelessness (paras 33 and 34), protection from
harassment (para 37), in relation to a sexual offence,
but only where (a) the services are provided to the
victim of the offence (para 39). Also, inquests
(para 41), environmental pollution (para 42), and
equality (para 43). Some of these paragraphs are
fairly detailed and include exclusions and definitions.
10. Part 2 of Schedule 1 is entitled Excluded services,
and it is introduced with the following words, The
services described in Part 1 of this Schedule do not
(2016) 2 LAW
The draft order
12. In April 2013, the Ministry of Justice issued a

paper, Transforming Legal Aid, and subsequently
carried out a public consultation exercise in
connection with its proposals. In September 2013, the
Ministry published its response to the results of that
exercise, Transforming Legal Aid: Next Steps. In the
September 2013 paper, the Ministry stated at para 132
that, subject to certain specified exceptions:
[T]he Government has decided to proceed with the
introduction of a residence test in civil legal aid so
that only those who are:
lawfully resident in the UK, Crown
Dependencies or British Overseas Territories
at the time the application for civil legal aid
was made; and
have resided lawfully in the UK, Crown
Dependencies or British Overseas territories
for a continuous period of at least 12 months
at any point in the past
would be eligible for civil legal aid
13. The specified exceptions were (i) serving members of

the armed forces and their families, (ii) asylum seekers, and
(iii) in relation to the second bullet point, children aged
under 12 months. No exception was to be made for
older children who were not responsible for their lack
of lawful resident status. The Ministry later agreed to
exclude certain classes of case from the ambit of this
proposal, namely categories of case which broadly
relate to an individuals liberty, where the individual
(Go to p. 45)
32
(2016) 2 LAW
Youth Bar Association of India v. Union of India & Ors. [IND-SC]
information so that he can take necessary steps to

protect his liberty. In this context, he has drawn
our attention to a passage from the judgment
rendered in State of West Bengal and others vs.
Committee for Protection of Democratic Rights,
West Bengal and others (2010) 3 SCC 571,
wherein it has been observed:-
(2016) 2 LAW ISC-189
SUPREME COURT OF INDIA

AT NEW DELHI
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (Crl.) No. 68 of 2016

Date of Judgment: Wednesday, 7 September 2016
Youth Bar Association of India
Versus
Union of India & Ors.
Citation: (2016) 2 LAW ISC-189
Article 21 of the Constitution in its broad

perspective seeks to protect the persons of their
lives and personal liberties except according to
the procedure established by law. The said
Article in its broad application not only takes
within its fold enforcement of the rights of an
accused but also the rights of the victim. The
State has a duty to enforce the human rights of a
citizen providing for fair and impartial
investigation against any person accused of
commission of a cognizable offence, which may
include its own officers. In certain situations
even a witness to the crime may seek for and
shall be granted protection by the State.
Petitioner(s)
Respondents.
CORAM:
DIPAK MISRA, J.
C. NAGAPPAN, J.
***
ORDER
1. Issue Rule.
2. In this writ petition, preferred under Article 32
of the Constitution of India, the petitioner, Youth
Bar Association of India, has prayed for issue of a
writ in the nature of mandamus, directing the
Union of India and the States to upload each and
every First Information Report registered in all
the police stations within the territory of India in
the official website of the police of all States, as
early as possible, preferably within 24 hours from
the time of registration.
3. After the writ petition was entertained by this
Court, notices were issued to the Union of India
and the States.
4. It is submitted by Mr. Sanpreet Singh Ajmani,
learned counsel appearing for the petitioner that
after registration of the First Information Report
if it is uploaded in the official website of police,
that will solve many unnecessary problems faced
by the accused persons and their family members.
Learned counsel would contend that when the
criminal law is set in motion and liberty of an
individual is at stake, he should have the
ISC-189
5. In Som Mittal vs. Government of Karnataka

(2008) 3 SCC 753, the Court has ruled thus:The right to liberty under Article 21 of the
Constitution is a valuable right, and hence should
not be lightly interfered with. It was won by the
people of Europe and America after tremendous
historical struggles and sacrifices. One is
reminded of Charles Dickens novel A Tale of Two
Cities in which Dr. Manette was incarcerated in
the Bastille for 18 years on a mere letter de cachet
of a French aristocrat, although he was innocent.
6. In D.K. Basu vs. State of West Bengal, AIR

1997 SC 610, it has been opined that:The rights inherent in Articles 21 and 22(1) of
the Constitution required to be jealously and
scrupulously protected. We cannot wish away
the problem. Any form of torture or cruel,
inhuman or degrading treatment would fall
within the inhibition of Article 21 of the
Constitution, whether it occurs during
investigation, interrogation or otherwise. If the
functionaries of the Government become law
breakers, it is bound to breed contempt for law
and would encourage lawlessness and every man
would have the tendency to become law unto
himself thereby leading to anarchanism. No
civilised nation can permit that to happen. Does a
Courtesy: Supreme Court of India at http://judis.nic.in/;

33
ISC-190
citizen shed off his fundamental right to life, the

moment a policeman arrests him? Can the right
to life of a citizen be put in abeyance on his
arrest? These questions touch the spinal cord of
human rights jurisprudence. The answer, indeed,
has to be an emphatic 'No'. The precious right
guaranteed by Article 21 of the Constitution of
India cannot be denied to convicted undertrials,
detenues and other prisoners in custody, except
according to the procedure established by law by
placing such reasonable restrictions as are
permitted by law.
11. Mr. Uddyam Mukherji, learned counsel

appearing for the State of Odisha has submitted
that whether a matter is sensitive or not, the Court
may say no reasons should be given because the
allegation in the F.I.R. shall speak for itself.
12. Having heard learned counsel for the parties,
we think it appropriate to record the requisite
conclusions and, thereafter, proceed to issue the
directions:(a) An accused is entitled to get a copy of the
First Information Report at an earlier
stage than as prescribed under Section
207 of the Cr.P.C.
(b) An accused who has reasons to suspect
that he has been roped in a criminal case
and his name may be finding place in a
First Information Report can submit an
application through his representative/
agent/parokar for grant of a certified
copy before the concerned police officer
or to the Superintendent of Police on
payment of such fee which is payable for
obtaining such a copy from the Court. On
such application being made, the copy
shall be supplied within twenty-four
hours.
(c) Once the First Information Report is
forwarded by the police station to the
concerned Magistrate or any Special
Judge, on an application being filed for
certified copy on behalf of the accused,
the same shall be given by the Court
concerned within two working days. The
aforesaid direction has nothing to do with
the statutory mandate inhered under
Section 207 of the Cr.P.C.
(d) The copies of the FIRs, unless the offence is
7. Learned counsel for the petitioner has also

drawn our attention to a Division Bench decision
of Delhi High Court rendered in Court on its Own
Motion through Mr. Ajay Chaudhary vs. State
(2010) 175 DLT 110 (DB).
8. On being asked, Mr. Tushar Mehta, learned
Additional Solicitor General appearing for the
Union of India, has submitted that the directions
issued by the High Court of Delhi can be applied
with certain modifications. Learned Additional
Solicitor General has also drawn our attention to
paragraph 4 of the affidavit filed in an
interlocutory application in the present writ
petition. The said paragraph reads as under:4. That it is respectfully submitted that
Central Government is supporting all the states
to set up a mechanism for online filing of
complaints under the protect 'Crime &
Criminal Tracking Network & Systems
(CCTNS)'.
9. Mr. Saurabh Trivedi, learned counsel
appearing for the State of Uttarakhand has
submitted that the First Information Report in respect
of certain offences which are registered, like sexual
offences and the offences registered under the
Protection of Children from Sexual Offences Act, 2012
(POCSO Act), may be difficult to be put on the website.
sensitive in nature, like sexual offences, offences

pertaining to insurgency, terrorism and of that
category, offences under POCSO Act and such
other offences, should be uploaded on the
police website, and if there is no such website,
on the official website of the State
Government, within twenty-four hours of the
registration of the First Information Report so
10. Mr. Ranjan Mukherjee, Mr. Shikhar Garg,

and Mr. Yusuf Khan, learned counsel appearing
for the States of Meghalaya, Mizoram and Sikkim
respectively, have submitted that insurgency would
be a sensitive matter and, that apart, it may not be
possible on the part of the said States to upload the First
Information Reports within 24 hours.
(2016) 2 LAW
that the accused or any person connected

34
(2016) 2 LAW
ISC-191
Commissioner is there, if a representation

is submitted to the Commissioner of
Police who shall constitute a committee
of three officers. The committee so
constituted shall deal with the grievance
within three days from the date of receipt
of the representation and communicate it
to the grieved person.
(i) The competent authority referred to
hereinabove
shall
constitute
the
committee, as directed herein-above,
within eight weeks from today.
(j) In cases wherein decisions have been
taken not to give copies of the FIR regard
being had to the sensitive nature of the
case, it will be open to the accused/his
authorized representative/parokar to file
an application for grant of certified copy
before the Court to which the FIR has
been sent and the same shall be provided
in quite promptitude by the concerned
Court not beyond three days of the
submission of the application.
(k) The directions for uploading of FIR in the
with the same can download the FIR and

file appropriate application before the
Court as per law for redressal of his
grievances. It may be clarified here that
in case there is connectivity problems
due to geographical location or there is
some other unavoidable difficulty, the
time can be extended up to forty-eight
hours. The said 48 hours can be extended
maximum up to 72 hours and it is only
relatable to connectivity problems due to
geographical location.
(e) The decision not to upload the copy of the FIR
on the website shall not be taken by an officer
below the rank of Deputy Superintendent of
Police or any person holding equivalent post.
In case, the States where District

Magistrate has a role, he may also
assume the said authority. A decision
taken by the concerned police officer or
the District Magistrate shall be duly
communicated
to
the
concerned
jurisdictional Magistrate.
(f) The word 'sensitive' apart from the other
aspects which may be thought of being
sensitive by the competent authority as stated
hereinbefore would also include concept of
privacy regard being had to the nature of the
FIR. The examples given with regard to
website of all the States shall be given effect

from 15th November, 2016.
13. Let a copy of this order be sent to all the

Home Secretaries and the Director Generals of
Police of the States concerned.
14. The writ petition is, accordingly, disposed of.
the sensitive cases are absolutely

illustrative and are not exhaustive.
(g) If an FIR is not uploaded, needless to
say, it shall not enure per se a ground to
obtain the benefit under Section 438 of
the Cr.P.C.
(h) In case a copy of the FIR is not provided
on the ground of sensitive nature of the
case, a person grieved by the said action,
after disclosing his identity, can submit a
representation to the Superintendent of
Police or any person holding the
equivalent post in the State. The
Superintendent of Police shall constitute
a committee of three officers which shall
deal with the said grievance. As far as the
Metropolitan cities are concerned, where
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35
ISC-192
Ajay Arjun Singh v. Sharadendu Tiwari & Ors. [IND-SC]
Leave granted.
The appeal is partly allowed in terms of the signed
Reportable judgment.
Pending application, if any, stands disposed of.
(2016) 2 LAW ISC-192

AT NEW DELHI
(Anita Malhotra)
Court Master
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 8254 of 2016
(arising out of SLP (C) No. 4512 of 2015)
Date of Judgment: Tuesday, 23 August 2016
Ajay Arjun Singh
***
Short Notes:
Appellant
This short but well-discussed decision of the

Apex Court makes it clear that the prima facie allegations
made in an election petition, if relevant to the cause raised, are
to be deemed true and correct and cannot be struck off under
Order 6 Rule 16 of the Civil Procedure Code which provides
for the striking out of such of the pleadings in a plaint as
found unnecessary, frivolous, scandalous or vexatious; or tend
to prejudice, embarrass or delay the fair trial or otherwise
amount to abuse of process of the Court. Herein, the Court
found only one of the pleadings in para 14M irrelevant since
the averments in it did not pertain to the expenditures
incurred by the candidate for his own election but to his
campaigns as a star campaigner for the party in other areas.
As such, the Court partly allowed the appeal striking off para
14M but at the same time dismissed the other IAs filed by the
returned candidate.
Respondents.
Citation: (2016) 2 LAW ISC-192
CORAM:
J. CHELAMESWAR, J.
ABHAY MANOHAR SAPRE, J.
***
ITEM NO.1A
COURT NO. 4
SECTION IVA
(For judgment)
RECORD OF PROCEEDINGS
Civil Appeal No.8254/2016 arising out of Petition(s)
for Special Leave to Appeal (C) No(s). 4512/2015
AJAY ARJUN SINGH
Petitioner(s)
***
JUDGMENT
CHELAMESWAR, J.
1. Leave granted.
2. Aggrieved by the Order dated 17.11.2014 of
the order of the High Court of Madhya Pradesh in
I.A. No. 12911 of 2014 in Election Petition No. 1
of 2014, the unsuccessful applicant therein
preferred the instant appeal.
3. The appellant herein is the returned candidate
from 76 Churhat Assembly constituency of the
State of Madhya Pradesh in the General Elections
held in the year 2013. He was a candidate
sponsored by the Indian National Congress Party
and won by margin of 19,356 votes. Challenging
the legality of the election of the appellant, the
first respondent herein, one of the other candidates
at the said election, filed Election Petition No.1 of
2014.
4. The appellant herein filed I.A. No.12911 of
2014 invoking Order VI Rule 16 of the Code of
Civil Procedure Code, 1908 (CPC) praying
various paragraphs of the election petition be
VERSUS
SHARADENDU TIWARI AND ORS. Respondent(s)

Date: 23/08/2016. This matter was called on for
pronouncement of judgment today.
For Petitioner(s): Mr. Anshuman Shrivastava, Adv.
Mr. Navin Prakash, Adv.
Mr. Abhijeet Shrivastava, Adv.
Mr. Tarun Gulia, Adv.
Ms. Ruchi Sahay, Adv.
Mr. Siddharth Shrivastava, Adv.
Mr. Pulkit Tarf, Adv.
For Respondent(s): Mr. Vikas Upadhyay, Adv.
Respondent-in-person (N.P.)
Mr. Kaustubh Anshuraj, Adv.
Hon'ble Mr. Justice J.Chelameswar pronounced the
Reportable judgment of the Bench comprising His
Lordship and Hon'ble Mr. Justice Abhay Manohar
Sapre.
Courtesy: Supreme Court of India at http://judis.nic.in/;

(Suman Jain)
Court Master
(Signed Reportable judgment is placed on the file.)
Versus
Sharadendu Tiwari & Others
(2016) 2 LAW
36
(2016) 2 LAW
struck off1 on the ground that the allegations

contained in those paragraphs are frivolous and
vexatious etc. By the order impugned in this
appeal, the said I.A. was dismissed. Hence the
instant appeal.
Obviously, such authority must be exercised with

circumspection and on the basis of some rational
principles.
6. The very purpose of the Rule is to ensure that

parties to a legal proceeding are entitled ex debito
justitia to have the case against them presented in an
intelligible form so that they may not be
5. Before we examine the various questions that

arise in this appeal, we think it profitable to
examine the scheme of Order VI, Rule 16.
embarrassed in meeting the case2.

7. In the context of the application of Order VI
Rule 16, CPC to the election petition, this Court
in Bhikaji Keshao Joshi and Another Vs. Brijlal
Nandlal Biyani and Others, AIR 1965 SC 610,
held that a court examining an election petition
may order striking out of charges which are
vague3.
8. In Ponnala Lakshmaiah Vs. Kommuri Pratap
Reddy and Others (2012) 7 SCC 788, this Court
considered the scope of an application under
Order VII Rule 11 CPC. Such an application was
filed by the returned candidate praying that the
election petition be dismissed for non-disclosure
of any cause of action. This Court opined that for
the purpose of determining such an application,
the averments in the election petition must be
taken to be factually correct and thereafter examine
whether such averments furnish the cause of
action for granting the relief to the petitioner.
Such a conclusion was recorded on the basis of
the law laid down in an earlier judgment of this
Court4. We are of the opinion the same principles
16. Striking out pleadings The Court may at

any stage of the proceedings order to be struck
out or amended any matter in any pleading
(a) which may be unnecessary, scandalous,
frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or
delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process
of the Court.
It authorises the court to order that any matter in

any pleading before it be struck out on the
grounds specified under clauses (a), (b) and (c).
Each one of them is a distinct ground. For
example, clause (a) authorises the court to strike
out the pleadings which may be (i) unnecessary,
(ii) scandalous, (iii) frivolous, (iv) vexatious. If a
pleading or part of it is to be struck out on the
ground that it is unnecessary, the test to be
applied is whether the allegation contained in that
pleading is relevant and essential to grant the
relief sought. Allegations which are unconnected
with the relief sought in the proceeding fall under
this category. Similarly, if a pleading is to be
struck out on the ground that it is scandalous, the
court must first record its satisfaction that the
pleading is scandalous in the legal sense and then
enquire whether such scandalous allegation is
called for or necessary having regard to the nature
of the relief sought in the proceeding. The
authority of the court under clause (c) is much wider.
1
ISC-193
2
3
Golding Vs. Wharton Salt Works, (1876) 1 Q B D 374.

it should have ordered a striking out of such of the charges
which remained vague and called upon the petitioners to
substantiate the allegations in respect of those which were
reasonably specific.
Liverpool & London S.P. and I Assn. Ltd. Vs. M.V. Sea
Success I, (2004) 9 SCC 512, Para 8. To the same effect
is the decision of this Court in Liverpool & London S.P.

and I Assn. Ltd. Vs. M.V. Sea Success I where this Court
held that the disclosure of a cause of action in the plaint is
a question of fact and the answer to that question must be
found only from the reading of the plaint itself. The court
trying a suit or an election petition, as the position is in
the present case, shall while examining whether the plaint
or the petition discloses a cause of action, to assume
that the averments made in the plaint or the petition are
Para 25. That, the answering respondent, therefore,

respectfully submits that paragraphs 14(A), 14(D) from
pages 24 to 29 beginning from in the Shadow Expense
Register Annexure P/19, 14(E), 14(F), 14(G) (i), 14(H)
(i), 14(I), 14(L), 14(M), 14(N), 14(O), paragraphs 15 to
17 and 19 be struck off from the pleadings as the same
are irrelevant, unnecessary, frivolous and vexatious.
37
ISC-194
(B) the receipt of, or agreement to receive,

any gratification, whether as a motive or a
reward
(a) by a person for standing or not standing
as, or for withdrawing or not
withdrawing from being, a candidate;
or
(b) by any person whomsoever for himself
or any other person for voting or
refraining from voting, or inducing or
attempting to induce any elector to vote
or refrain from voting, or any candidate
to withdraw or not to withdraw his
candidature.
..
(3) The appeal by a candidate or his agent or by
any other person with the consent of a
candidate or his election agent to vote or
refrain from voting for any person on the
ground of his religion, race, caste,
community or language or the use of, or
appeal to religious symbols or the use of, or
appeal to, national symbols, such as the
national flag or the national emblem, for the
furtherance of the prospects of the election of
that candidate or for prejudicially affecting
the election of any candidate:
Provided that no symbol allotted under this
Act to a candidate shall be deemed to be a
religious symbol or a national symbol for the
purposes of this clause.
..
(6) The incurring or authorizing of expenditure
in contravention of section 77.
of law are applicable even while adjudicating the

application under Order VI Rule 16.
9. In the light of the above principles of law, we
proceed to examine the case on hand. The
election of the appellant is challenged on the
ground of commission of various corrupt
practices falling under Section 123(1), 123(3) and
123(6) of the Representation of the People Act,
1951 (hereinafter referred to as the Act):
123. Corrupt practices. The following shall be
deemed to be corrupt practices for the purposes
of this Act:
(1) "Bribery", that is to say
(A) any gift, offer or promise by a candidate
or his agent or by any other person with
the consent of a candidate or his election
agent of any gratification, to any person
whomsoever, with the object, directly or
indirectly of inducing
(a) a person to stand or not to stand as, or
to withdraw or not to withdraw from
being a candidate at an election, or
(b) an elector to vote or refrain from voting
at an election, or as a reward to
(i) a person for having so stood or not
stood, or for having withdrawn or not
having withdrawn his candidature; or
(ii) an elector for having voted or
refrained from voting;
factually correct. It is only if despite the averments being
taken as factually correct, the court finds no cause of
action emerging from the averments that it may be
justified in rejecting the plaint.
Para 10. Applying the above principles to the case at
hand, we do not see any error in the order passed by the
High Court refusing to dismiss the petition in limine on
the ground that the same discloses no cause of action.
The averments made in the election petition if taken to be
factually correct, as they ought to for purposes of
determining whether a case for exercise of powers under
Order 7 Rule 11 has been made out, do in our opinion,
disclose a cause of action. The High Court did not,
therefore, commit any error much less an error resulting
in miscarriage of justice, to warrant interference by this
Court in exercise of its extraordinary powers under
Article 136 of the Constitution.
(2016) 2 LAW
i.e. bribery, soliciting votes on the ground of

religion and incurring of expenditure in
contravention of Section 77 of the Act.
10. The allegations regarding the commission of
corrupt practices falling under Section 123(1) are
to be found in para 19 of the election petition. The
allegations regarding commission of corrupt
practices falling under Section 123(3) are
contained in paragraph 18 of the election petition,
which is not one of the paragraphs which was
prayed to be struck off5.
5
38
See Footnote 1.
(2016) 2 LAW
ISC-195
On the other hand, he chose to explain his

conduct in para 24 of the I.A.
11. All the remaining paragraphs which were

prayed to be struck off, pertain to the allegation
of corrupt practice falling under Section 123(6).
The allegations contained in each one of these
paragraphs pertain to the expenditure incurred
under different heads by the appellant in connection
with the election campaign6. According to the
Respondent the total amount of expenditure so
incurred by the appellant is in excess of the limit
prescribed under Section 77 of the Act.
24. The answering respondent hereby

respectfully submits that an amount of Rs. 20
lacs is earmarked for expenditure by every
member of the M.P. Legislative Assembly every
year in his constituency. A Minister and Leader
of Opposition are provided Rs. 20 lacs per year
for voluntary grant. The manner in which this
grant is to be distributed is the sole discretion of
such Minister/Leader of Opposition. The
Minister/Leader of Opposition gives a list to the
Secretary of the Vidhan Sabha containing the
names of the persons and the amount to whom
the grant is to be made. Accordingly, the drafts are
issued to the persons concerned as per procedure.
12. The allegations contained in para 19 of the

election petition7 are not disputed by the appellant.
6
That is the admitted case (rightly) even of the appellant at

para 3 of the I.A. 12911 of 2014, it is stated,
The entire election petition is based on :(a) Under valuation of the items used in the election
campaign
(b) Non disclosure of expenses in respect of certain
items alleged to have been used in such election.
7
19. That during model code of conduct, to bribe voters,
INC Candidate/respondent no. 1 through his representative
Shri Bharat Singh, (Vidhayak Pratinidhi) has distributed
large quantity of demand drafts/cheques issued by
different account maintained at T.T. Nagar Bhopal. The
petitioner came across with one of the said cheques/
demand draft issued in favour of one Charka Kol who is
voter from polling station Dhanaha. Even during election
the drafts were distributed by Bharat Singh as Vidhayak
pratinidhi, since INC Candidate Respondent No.1 is
Member of Legislative Assembly continuously and
known as Vidhayak. The Election agent of petitioner has
made a complaint to observer in this regard. The copy of
complaint made to observer by election Agent is being
filed herewith as Annexure P-53. However even then the
same corrupt practice continued by representative of INC
Candidate/Respondent no.1 representative Shri Bharat
Singh and ante dated cheques/Demand Drafts were given
to voters to influence their votes. Another such draft
drawn in favour of Rajkumari Saket has been brought to
the notice of petitioner who was not able to encash it as
she do[es]nt have any account. When the petitioner
enquired from her she disclosed that the same has been
given to her by Shri Bharat Singh on 12/11/2013 with a
request that Rahul Bhaiya has arranged the fund for her
employment and have requested for vote of her and her
family member. The copy of demand draft is being filed
herewith as Annexure P-54.
13. Whether the explanation is factually correct and, if

so, what are the legal implications of the said explanation
are matters to be decided in trial of the election petition.
If the explanation is either found to be untrue or

legally unacceptable, the allegation made in para
19 of the election petition is sufficient to hold that
the Appellant is guilty of the corrupt practice
under S. 123(1).
Therefore, we do not find any error in the order of the
High Court in refusing to strike off the pleadings in
para 19 of the election petition.
14. We now examine the validity of the

impugned order insofar as it pertains to the
incurring of expenditure (by the appellant herein)
beyond the permissible limits prescribed by law.
An analysis of the allegations contained in
various sub-paragraphs of paragraph 14 and in
paragraphs 15, 16 and 17 of the election petition
indicates that the excess expenditure said to have
been incurred by the appellant falls under three
heads.
Furnishing of inaccurate information8 to the
District Election Officer:
8
39
An obligation flowing from Section 78 of the RP Act, 1951

Section 78. Lodging of account with the district election
officer. Every contesting candidate at an election shall,
within thirty days from the date of election of the
returned candidate or, if there are more than one returned
candidate at the election and the dates of their election are
different, the later of those two dates, lodge with the district
ISC-196
(i) regarding the quantity and quality of the

material used in the campaign by the
appellant herein,
(ii) regarding the cost of the various items so
used by the returned candidate by giving
false information based on deliberate undervaluation of the material actually used by the
appellant,
(iii) Total non disclosure of certain expenditure
incurred by the appellant for (a) organizing a
meeting of one of the top functionaries of the
political party (Shri Rahul Gandhi) which
sponsored the appellant at the election, and
(b) the use of a helicopter by the appellant
during the relevant period.
regard to the various items used during the

process of campaign is consistent with such
determination made by the Election Commission.
Therefore there cannot be any further enquiry
regarding the correctness of the declaration made by
him about the expenditure incurred in connection
with those materials. The appellants pleading in

this regard in I.A. is as follows:5. That, under Rule 90 of Conduct of Elections
Rules, 1961 the maximum election expenses to
be incurred by a candidate in respect of M.P.
State Legislative Assembly election has been
fixed at Rs. 16 lacs. In order to have a check over
the
limit
of
election
expenses
the
Collector/District Election Officer prepared a
rate list of various items which were sought to be
used in the election campaign by appointing a
Sub Committee of three responsible officers. The
Committee pursuant thereto ascertained the rates
of such material from open market in
consultation with the representatives of major
political parties and thereafter prepared a final
rate list of various items used in the election. The
answering respondent is filing copy of
proceedings of the Collector/District Election
Officer fixing the rates of different items used in
the election as Document No. 1. The petitioner
has filed a copy of rate list as Annexure-P-3. The
publication of rate list preceded the proceedings
held in that behalf by the District Election
Officer, which the answering respondent has
now filed as Document No. 1. The rate list so
prepared by the Election Officer has not been
disputed by any of the political party or their
representatives.
6. That, certain items which could not find place
in the rate list so prepared by the Collector have
since been included in the shadow register of
each candidate prepared by the Election Expense
Observers. Such rate list and the shadow register
are final and conclusive. The rate list and the
15. The allegations and counter allegations

regarding the quantity and quality of the material
used by the appellant during the course of his
election campaign and value of such material are
pure questions of fact which are required to be
established on evidence. The law in this regard as
already noticed is that until proved otherwise the
allegations in the election petition must be presumed to
be true. The burden of establishing the truth of all
those allegations is essentially on the respondent/

election petitioner. We have meticulously gone
through the various allegations in this regard contained
in various sub-paragraphs of paragraph 14 and we are
of the opinion that there is nothing which warrants
striking out of all those pleadings invoking Order VI
Rule 16 CPC. Each of the paragraphs contains
allegations that the appellant incurred some

expenditure (specified) under some head or the
other. The sum total of such amount would
exceed the permissible limits of expenditure
under Section 77 of the Act.
16. The only question which deserves our attention in
this regard is that it is the case of the appellant that
under the procedure that is being followed by the
Election Commission a rate list has been finalized with
respect to each one of the items to be utilized in the
campaign by any one of the candidates at an election.
The appellants declaration of his expenditure with
shadow register are not open to challenge and the

valuation in respect of such items cannot be reassessed
and revalued by this Court in an election process.
******** ******** *******

9. That, the present election petition will not be
maintainable in respect of expenses incurred by
the answering respondent which have been
accepted by the District Election Officer (for
election officer an account of his election expenses which

shall be a true copy of the account kept by him or by his
election agent under section 77.
(2016) 2 LAW
40
(2016) 2 LAW
short, DEO) inasmuch as this Court will not sit

over rate list or shadow register to give its own valuation
of the election material, as the same would be beyond
the scope of trial of election petition under the
Representation of People Act of 1951 (hereinafter
ISC-197
allegations in the regard are to be found in

para 14(L) of the election petition.
The substance of the allegation is that
though the meeting was held at Sidhi
which is beyond the territorial limits of
Churhat Constituency (from which the
parties herein contested), the appellant was
not only present at such meeting but also
shared the dais with Shri Rahul Gandhi
(Vice-Chairman of the Indian National
Congress). The appellant mobilized lot of
voters from his constituency and hired
vehicles for that purpose incurring
expenditure. The appellant also incurred
expenditure in connection with the erection
of the pandals, security arrangement etc.
According to the respondent, such
expenditure would be Rs.13,88,073/- and the
same is required to be added to the election
referred to as the 1951 Act).
17. On the other hand, it is the case of the

respondent that the determination made by the Election
Commission is not conclusive of the prices of the
material used by any candidate at the election. Apart
from that, the actual quantity of the campaign

material used by any candidate at an election and
its cost is always a question of fact. After an
election is concluded, it is always open to any
election petitioner to demonstrate in an election
petition that the campaign material used by the
returned candidate is more expensive than what
was determined by the Election Commission,
after all the value of the material depends both
upon the quality and quantity of the material
used. All these are questions of fact which are required
expenditure of the appellant.
(b) That the appellant between 4.11.2013 to
to be examined and determined by the court in an

election petition.
19.11.2013 traveled on 8 occasions by

chartered flights between Bhopal to Sidhi.9
According to the respondent, on this count
alone the appellant incurred an expenditure
of Rs. 40 lakhs. The details of such flights
and the allegations are to be found at para
14(M) of the election petition.
18. We accept the submission of the election petitioner.

The values fixed by the Election Commission or its
functionaries are not conclusive. There is no statutory
basis for such an exercise. The valuation made by
the Election Commission obviously would be
based on the samples supplied by the candidates.
There can never be any presumption that the
candidates used the same quality of material in
the actual process of campaigning. Apart from
that the quantity and the quality of the material used in
20. The response of the appellant as disclosed by

IA No. 12911 of 2014 with regard to the
abovementioned two allegations is found at
paragraph nos. 19 and 20. It can be seen
therefrom that the appellant does not dispute that
there was a public meeting in the grounds of
Sanjay Gandhi College at Sidhi on 20.11.2013
attended by Shri Rahul Gandhi. According to the
appellant, the venue of the meeting is within the
territorial limits of 77 Sidhi Assembly
Constituency but not within the territory of 76
Churhat Assembly Constituency. The meeting
was organized by one Shri Kamleshwar Dwivedi
who was the candidate of the Indian National
Congress Party contesting from the said
the election campaign and the real cost of the material

actually used by any candidate are always questions of
fact, which are required to be established in evidence.
We are of the opinion that the High Court rightly
rejected the application of the appellant on this count.
19. The only major issue which requires an

examination is regarding the third head mentioned
(Para 14) above. It is once again required to be
divided into two sub-headings
(a) The expenditure allegedly incurred in
connection with the public meeting of Shri
Rahul Gandhi at the District Headquarters,
Sidhi on 20th November, 2013. The
41
Periods relevant for the purpose of deciding the

expenditure incurred under Section 77.
ISC-198
22. Coming to the second limb of that head

regarding the cost incurred for the construction of
pandals or barricades in connection with the
abovementioned meeting of Shri Rahul Gandhi,
the stand taken by the appellant in the abovementioned IA is that the said meeting was held
beyond the territorial limit of the assembly
constituency from which the appellant contested.
The Indian National Congress Partys candidate
contesting from Sidhi constituency had declared
the expenditure incurred in connection with the
said meeting. The appellant is under no legal
obligation to make any declaration of the
expenditure incurred by him in connection with
the said meeting.
23. It may be noted that the appellant does not make
constituency. The said Kamleshwar Dwivedi

lodged the account under Section 78 of the Act
disclosing the details of the expenditure incurred
by him for conducting the aforesaid meeting
which was duly accepted by the Returning
Officer of 77 - Sidhi Assembly Constituency. It is
the specific plea of the appellant that he was
present in the said meeting because he was also
one of the star campaigners for the Indian
National Congress Party in the said election.
According to the appellant, the appellant is under no
legal obligation to account for the expenditure incurred
10
for organizing the said meeting.
21. It is significant to notice that there is no

specific denial by the appellant of the allegation
in the election petition that the appellant herein
had hired a large number of vehicles11 to facilitate
voters from his constituency to attend the said
public meeting. I.A. No. 12911 of 2014 is
absolutely silent regarding that allegation. The
appellant does not even deny the allegation. We must
not be understood to be holding that if the
appellant had denied the allegation, such denial
would suffice to strike out of the pleadings.
any categoric assertion that he did not incur any

expenditure in connection with the said meeting.
24. Coming to the use of the Helicopter, once

again it is not a case of the appellant that he did
not use the helicopter as alleged by the respondent
election petitioner. His defence is that he is one of the
star campaigners contemplated under Section 77 of
the Act. The expenditure was incurred by him for the
use of the Helicopter as a star campaigner. In that
capacity he had to travel throughout the State holding
public meetings propagating programme of the Indian
National Congress Party. The expenditure for the use
of the helicopter was borne by the Indian National
Congress and, therefore, outside the purview of the
election expenditure of the appellant. The relevant
10
If expenses of such meeting have already been shown by

the candidate in whose constituency the meeting was
held, it was not necessary or obligatory upon the
answering respondent to account for the expenses of such
meeting which had not taken place in his Constituency.
[See: IA No.12911 of 2014 , para 19].
11
The perusal of permission application which was
obtained by INC for the said meeting, would make it
clear that presence of first respondent was the individual
act of the first respondent, his presence was as a
candidate of 76 Churhat of INC, a large numbers of
vehicle
were
illegally
hired
by
INC
Candidate/respondent no.1 in order to facilitate voters
from his constituency 76-Churahat to attend the said
public meeting. There are around 44 buses and number
of taxi permit vehicle along with private vehicle were
used for transportation of voters to attend said public
meeting. The posters used there have photo/picture of
respondent no.1, therefore, the entire expenditure of the
said meeting would be included in the expenditure of
first respondent, as no other candidate of any other
adjoining constituencies shared the dais with Mr. Rahul
Gandhi. (See: Para 14-L of the Election Petition).
(2016) 2 LAW
portion of the pleading at para 20 of the IA No.

12911 of 2014 reads as follows:
In this view of the mater, the expenses so incurred
in the use of helicopter has since been borne by the Indian
National Congress, New Delhi and the same is
outside the purview of election expense so far as

the answering respondent is concerned by virtue
of Explanation 1(a) to Section 77 referred to
above. It is, however further added that the
answering respondent besides being a star
campaigner was also a leader of opposition in the
last M.P. State Legislative Assembly. The
answering respondent is otherwise a veteran
leader of the Indian National Congress Party and
on account of his capacity as such, he was
appointed as Star Campaigner and has traveled
42
(2016) 2 LAW
throughout the State, holding public meetings,

propagating programme of the Indian National
Congress Party. The expenditure so incurred in
use of helicopter in propagating the programme
of the party throughout the State cannot be
included in the election expense of the answering
respondent in respect of his election from 76,
Churhut Vidhan Sabha Constituency. It is further
made clear that he never used helicopter for his
names have been communicated to the Election

Commission and the Chief Electoral Officers of
the States by the political party to be leaders for
the purposes of such election, within a period of
seven days from the date of the notification for
such election published in the Gazette of India or
Official Gazette of the State, as the case may be,
under this Act.
27. It can be seen from explanation 2, to qualify

to be called a leader of the political party for the
purpose of such an election under Section 77, the
name of such a person is communicated to the
Election Commission and the Chief Electoral
Officer of the State by the concerned political
party. Such a communication is required to be
made within a period of 7 days from the
notification of such election published in the
gazette of India etc.
28. Persons whose names have been so
communicated to the Election Commission
popularly came to be called star campaigners in
connection with an election. It is the admitted case of
election campaign in 76, Churhut Vidhan Sabha

Constituency. Thus, in view of Explanation 1(a) to
Section 77 of the 1951 Act, the entire pleadings
contained in paragraph 14(M) are liable to be struck off
being absolutely vexatious and frivolous providing no
cause of action for trial of election petition.
(emphasis in italics bold supplied by the Court)
12
25. Section 77 of the Act obligates every

candidate in an election to keep a separate current
account of all expenditures in connection with the
election between the dates on which such a
candidate has been nominated and the date of the
declaration of result of that election. However,
clause (a) of explanation (1) to Section 77 of the Act
declares the expenditure incurred by leaders of a
political party on account of travel by air or by any
other means of transport for propagating programme of
the political party shall not form part of the
expenditure of the candidate.
the parties before us that both Shri Rahul Gandhi and

the appellant are star campaigners/leaders of the Indian
National Congress Party for the election in question.
29. However, the entire expenditure incurred (on

whatsoever count) by such star campaigners or on
behalf of such star campaigners is not exempted
under Section 77 for the purpose of determining
the total expenditure incurred by any candidate in
an election. The language of explanation 1 to
Section 77 makes it clear that only the expenditure
26. The expression leaders of political party

occurring in explanation 1 is itself explained in
explanation 2 to the said Section.
Explanation 2. For the purpose of clause (a) of
Explanation 1, the expression leaders of a
political party, in respect of any election,
means,
(i) where such political party is a recognised
political party, such persons not exceeding forty
in number, and (ii) where such political party is
other than a recognized political party, such
persons not exceeding twenty in number, whose
12
ISC-199
incurred by the star campaigner that too on account of

travel for propagating the programme of the political
party is excluded for the purpose of computing the
expenditure incurred by the candidate. In other

words, the expenditure incurred in connection with
arrangements like erection of pandals etc. for a meeting
of a star campaigner does not form part of the exempted
expenditure under explanation 1. Secondly, under
explanation II, the star campaigners travel
expenditure must have been incurred by the star
campaigner himself. It is obvious from the opening
Section 77. Account of election expenses and maximum

thereof. (1) Every candidate at an election shall, either
by himself or by his election agent, keep a separate and

correct account of all expenditure in connection with the
election incurred or authorized by him or by his election
agent between the date on which he has been nominated
and the date of declaration of the result thereof, both
dates inclusive.
clause of explanation 1 the expenditure incurred

by leaders of a political party. If such expenditure
is incurred by any person other than the star
campaigner, different considerations would arise.
43
ISC-200
30. The application i.e. IA No. 12911 of 2014

does not disclose on which one of the grounds
contemplated under Order VI Rule 16, the
various paragraphs of the election petition are
required to be struck out. On the other hand, the
appellant gave an elaborate explanation with
respect to each of the allegations contained in the
various paragraphs of the election petition which
are prayed to be struck out. The moment court is
asked to examine the defence of the returned
candidate in an election petition, the election
petition can neither be dismissed for want of
cause of action nor any part of the pleading can
be struck out under Order VI Rule 16. In the
(2016) 2 LAW
was one of the star campaigners for the said election for
the State of Madhya Pradesh. Therefore, he was
required to campaign for his political party, not only in
his constituency but also in other constituencies of the
State. In the absence of any allegation that the
appellant used the helicopter for traveling within

76-Churahat constituency for the purpose of
campaigning, the expenditure incurred on that
account, in our opinion, cannot be included in the
election expenditure of the appellant. Therefore,
paragraph 14M of the election petition is liable to be
struck off and is, accordingly, struck off.
32. Before parting with this case, we would like

to place on record that the procedure adopted by
the appellant in initially filing a petition under
Order VII Rule 11 petition14, praying that the
election petition be dismissed and filing the
instant application after a long gap15 is to be
deprecated. Preliminary objections, if any, (in
cases where there is more than one) in an election
petition are to be taken at the earliest point of
time and in one go. The practice such as the one
adopted by the appellant only tends to delay the
adjudication of the election petition which are
mandated16 by the Parliament to be decided
within a period of six months. We declare that the
absence of the availability of any one of the grounds

mentioned in Order VI Rule 16, CPC striking out is
impermissible. As observed by this Court in the
context of the application under Order VII Rule

11, the averments contained in the election petition at
this stage must be presumed to be factually correct.
The only possible scrutiny of such statement is whether
those allegations are relevant in the context of the relief
sought in the election petition. None of the allegations
contained in the various sub paragraphs of paragraph
14, except paragraph 14M, can be said to be irrelevant
in the context of the prayer in the election petition.
31. The specific pleading in the election petition

at paragraph 14M is that the appellant herein used
the helicopter on many occasions during the
relevant period only between Bhopal and Sidhi,
both of which are outside the constituency of the
appellant13. The admitted fact is that the appellant
later of such successive petitions must be dismissed by

High Courts in limine on that count alone.
33. The appeal is, therefore, partly allowed

striking out only paragraph 14M of the election
petition.
*****
13
M. During election between 4/11/2013 to

19/11/2013 there were eight charter flights between
Bhopal to Sidhi/Churhat which respondent no.1 has used
these flights to come from his Kerwa Kothi Bhopal to
assembly constituency 76-Churahat for his election
campaign. In fact the first respondent on the date of
filing of nomination has used charter flight to arrive at
District Head Quarter at Sidhi and thereafter proceeded
to Churahat. The details are as under:
i) 4/11/2013 (Panwar) Sidhi to Bhopal
ii) 05/11/2013 Bhopal to Sidhi (Panwar)
iii) 08/11/2013 Bhopal to Sidhi (Panwar)
iv) 11/11/2013 Bhopal to Sidhi (Panwar)
v) 12/11/2013 Sidhi (Panwar) to Bhopal
vi) 16/11/2013 Bhopal to Sidhi (Panwar)

vii) 18/11/2013 Bhopal to Sidhi (Panwar)
viii) 19/11/2013 Sidhi (Panwar) to Bhopal
The estimated cost of these charter flight would be Rs.
40,00,000/- (Forty Lac) (@ Rs. Five Lakh per flight).
True copy of permission of these flights are cumulatively
filed as Annexure P-42.
14
Filed on 1.7.2014
15
I.A. No. 12911/2014 in Election Petition No.1/2014 was
filed on 11.9.2014
16
S. 86(7), The Representation of the People Act, 1951
44
(2016) 2 LAW
F-159
(Carried from p. 32)
The instant proceedings
is particularly vulnerable, or where the case relates to

the protection of children.
14. In its September 2013 paper, the Ministry described
17. Before the draft order had been laid before

Parliament, Public Law Project (PLP) applied to the High
Court for a declaration that it would be unlawful. The
alleged unlawfulness was based on two grounds, namely
that the draft order was or would be (i) ultra vires, ie
outside the scope of the power granted to the Lord
Chancellor in LASPO to bring forward delegated
legislation, and (ii) unjustifiably discriminatory in its
effect. The Divisional Court, in a judgment given by Moses
LJ (with whom Collins and Jay JJ agreed), held that the
draft order was unlawful on both grounds - [2015] 1 WLR
251. As the draft order was before Parliament at the time of
the decision of the Divisional Court, it was withdrawn,
and that remains the position today.
18. The Lord Chancellor appealed against both
conclusions reached by the Divisional Court. The
Court of Appeal, in a judgment given by Laws LJ (with
whom Kitchin and Christopher Clarke LJJ agreed),
allowed his appeal, holding that the draft order was intra
the proposal as justified and proportionate, and pointed out

that anyone excluded by the residence test would be entitled
to apply for exceptional funding. In para 6.3 of an
Equality Statement attached to that paper, the Ministry

described the primary objective of the proposal as
being to bear down on the cost of legal aid, ensuring that
every aspect of expenditure is justified and that we are getting
the best deal for the taxpayer, and further stated that the
reforms seek to promote public confidence in the system by
ensuring limited public resources are targeted at those cases
which justify it and those people who need it.
15. Also in September 2013, the Lord Chancellor

decided to proceed with his proposal described in
paras 12 and 13 above, and to give effect to that
decision by laying a draft order before Parliament.
The draft order was put before Parliament on 31 March
2014. The draft order stated that it was made pursuant
to sections 9(2)(b), 41(1)(a) and (b), 41(2)(a) and (b),
and 41(3)(b) and (c) of LASPO.
16. The draft order effectively provides that an individual
vires and, while it was discriminatory in its effect, the

discrimination could be justified - [2016] 2 WLR 995.
19. PLP now appeals to this court, and maintains both the
ultra vires and the discrimination arguments.
who fails the residence test would no longer qualify for civil
legal aid for any types of claim, subject to certain limited
exceptions. The effect of the draft order was to insert a
new para 19 into Part 2 of Schedule 1, whose effect was
The ultra vires principle in the present context
20. The draft order, once formally made, would, of

course, be secondary, or subordinate, legislation, unlike
LASPO itself which, as a statute, is primary legislation.
explained by Moses LJ in the Divisional Court at

[2015] 1 WLR 251, paras 21-24, and was more
shortly summarised by Mr Eadie QC, who appeared
for the Lord Chancellor, in a description adopted by
Laws LJ in the Court of Appeal at para 8:
Primary legislation is initiated by a Bill which is

placed before Parliament. To the extent that
Parliament considers it appropriate, all or any of
the provisions of a Bill can be subject to detailed
scrutiny, discussion, and amendment in
Parliament before being formally enacted as
primary legislation; it is then formally approved
by the monarch, whereupon it becomes a statute.
To satisfy the residence test, an individual would

have to be lawfully resident in the UK, the Channel
Islands, Isle of Man or a British Overseas Territory on
the day the application for civil legal services was
made, and (unless they were under 12 months old or a
particular kind of asylum claimant or involved with the UK
Armed Forces) have been so lawfully resident for a 12month period at some time in the past (excluding
absences of up to 30 days).
In our system of parliamentary supremacy (subject to

arguable extreme exceptions,
which I hope and expect

will never have to be tested in practice), it is not open
There were proposed exceptions to the test. Claimants

pursuing certain types of proceedings were not
required to satisfy the test (for example, domestic
violence cases, and challenges to the lawfulness of
detention). In any event, regardless of residence, a
claimant who failed the residence test would have
been entitled to apply for legal aid under the
Exceptional Case Funding regime in section l0 of
LASPO whose purpose is to ensure that all those who
have a right to legal aid under the European
Convention or EU law are able to obtain it.
to a court to challenge or refuse to apply a statute, save

to the extent that Parliament authorises or requires a
court to do so.
21. Subordinate legislation consists of legislation made by

members of the Executive (often, as in this case, by
Government ministers), almost always pursuant to an
authority given by Parliament in primary legislation. The
draft order in the present case would be a statutory
instrument, which is a type of subordinate legislation which
45
F-160
The term Henry VIII power is commonly used to describe a

delegated power under which subordinate legislation is
enabled to amend primary legislation.
must be laid in draft before Parliament. Some statutory

instruments are subject to the negative resolution procedure ie they will become law unless, within a specified
period, they are debated and voted down. Other
When a court is considering the validity of a

statutory instrument made under a Henry VIII
power, its role in upholding Parliamentary
supremacy is particularly striking, as the statutory
instrument will be purporting to vary primary
legislation passed into law by Parliament.
26. The interpretation of the statutory provision
conferring a power to make secondary legislation is,
of course, to be effected in accordance with normal
principles of statutory construction. However, in the
case of an amendment that is permitted under a
Henry VIII power, to quote again from Craies (op
cit) para 1.3.11:
as with all delegated powers the only rule for
statutory instruments, such as the draft order in this case, are

subject to the affirmative resolution procedure - ie they can
only become law if they are formally approved by

Parliament see subsections (6) and (7)(a) of section 41.
22. Although they can be said to have been approved by
Parliament, draft statutory instruments, even those subject to
the affirmative resolution procedure, are not subject to the
same legislative scrutiny as bills; and, unlike bills, they cannot
be amended by Parliament. Accordingly, it is well
established that, unlike statutes, the lawfulness of statutory
instruments (like other subordinate legislation) can be
challenged in court. As Lord Diplock said in F
Hoffmann-La Roche & Co v Secretary of State for

Trade and Industry [1975] AC 295, 365, even though
[subordinate legislation] is contained in an order made by
statutory instrument approved by resolutions of both Houses of
Parliament, I entertain no doubt that the courts have
jurisdiction to declare it to be invalid if they are satisfied that in
making it the Minister who did so acted outwith the legislative
powers conferred upon him by the Act of Parliament under
construction is to test each proposed exercise by

reference to whether or not it is within the class of action
that Parliament must have contemplated when
delegating. Although Henry VIII powers are often
cast in very wide terms, the more general the

words by Parliament to delegate a power, the
more likely it is that an exercise within the literal
meaning of the words will nevertheless be
outside the legislatures contemplation.
which the order [was] purported to be made .
23. Subordinate legislation will be held by a court to

be invalid if it has an effect, or is made for a purpose, which is
ultra vires, that is, outside the scope of the statutory power
pursuant to which it was purportedly made. In declaring
27. In two cases, R v Secretary of State for Social

Security, Ex p Britnell [1991] 1 WLR 198, 204 and
R v Secretary of State for the Environment,
Transport and the Regions, Ex p Spath Holme Ltd
[2001] 2 AC 349, 383, the House of Lords has cited
with approval the following observation of Lord
Donaldson MR in McKiernon v Secretary of State
for Social Security, The Times, November 1989;
Court of Appeal (Civil Division) Transcript No
1017 of 1989, which is to much the same effect:
subordinate legislation to be invalid in such a case, the

court is upholding the supremacy of Parliament over the
Executive. That is because the court is preventing a
member of the Executive from making an order which is
outside the scope of the power which Parliament has given
him or her by means of the statute concerned. Accordingly,
when, as in this case, it is contended that actual or

intended subordinate legislation is ultra vires, it is
necessary for a court to determine the scope of the
statutorily conferred power to make that legislation.
24. Normally, statutory provisions which provide
for subordinate legislation are concerned with
subsidiary issues such as procedural rules, practice
directions, and forms of notice; hence statutory
instruments are frequently referred to as regulations.
However, such statutory provisions sometimes permit more
substantive issues to be covered by subordinate legislation,
and, as is the case with section 9(2)(b) of LASPO,
Whether subject to the negative or affirmative

resolution procedure, [subordinate legislation] is
subject to much briefer, if any, examination by
Parliament and cannot be amended. The duty of the
courts being to give effect to the will of Parliament, it
is, in my judgment, legitimate to take account of the
fact that a delegation to the Executive of power to modify
primary legislation must be an exceptional course and that,
if there is any doubt about the scope of the power conferred
upon the Executive or upon whether it has been exercised,
it should be resolved by a restrictive approach.
they sometimes permit subordinate legislation which actually

amends the statute concerned (or even another statute), by
addition, deletion or variation.
25. As explained in Craies on Legislation (10th ed

(2015)), edited by Daniel Greenberg), para 1.3.9:
(2016) 2 LAW
28. Immediately after quoting this passage in Spath

Holme, Lord Bingham went on to say [r]ecognition
46
(2016) 2 LAW
F-161
of Parliaments primary law-making role in my view

requires such an approach. He went on to add that,
where there is little room for doubt about the scope
of the power in the statute concerned, it is not for the
courts to cut down that scope by some artificial
reading of the power.
other than those which relate to the issue or the

services concerned. The point is well demonstrated by
the fact that, as mentioned in para 10 above, all the
existing 18 paragraphs of Part 2 of the Schedule are
concerned with Civil legal services provided in
relation to specified areas of litigation, whereas the
Is the draft order ultra vires?
new proposed para 19 will have nothing to do with any

specified area of litigation at all.
29. The argument that the draft order is ultra vires the
32. It is true that, as mentioned in para 9 above, some
powers granted to the Lord Chancellor is, in essence,

as follows. The exclusion of a specific group of people from
provisions, such as paras 3(a) and 39(a) of Part 1,

limit the right to receive legal services to one specific
group, namely the victims of alleged wrongdoing, and
exclude, for instance, the alleged perpetrators.
However, that does not in any way undermine PLPs
case, because the objection to the draft order is that it
excludes (albeit subject to exceptions) a group of
individuals on grounds which have nothing to do with
the issue or services involved.
the right to receive civil legal services in relation to an issue,

on the ground of personal circumstances or characteristics
(namely those not lawfully resident in the UK, Crown

Dependencies or British Overseas Territories) which have
nothing to do with the nature of the issue or services involved
or the individuals need, or ability to pay, for the services, is
simply not within the scope of the power accorded to the Lord
Chancellor by section 9(2)(b) of LASPO, and nothing in
section 41 undermines that contention.
33. This conclusion is supported by the contrast in the

wording of the two subsections of section 9.
Subsection (1) states that [c]ivil legal services are to
be available to an individual if (a) they are civil
legal services described in Part 1 of Schedule 1, and
(b) the Director determines that the individual
qualifies for the services. Thus, subsection (1) clearly
distinguishes between the question whether the
particular services qualify - para (a) - and whether the
particular individual qualifies - para (b). When one
turns to the subsection under which the draft order in
the present case is said to have been made, both para
(a) and para (b) of subsection (2) refer only to
services within Part 1 of Schedule 1. The natural
inference from this is that subsection (2) is concerned with
30. In my view, that argument is sound, and should be

accepted. Turning to section 9(2)(b) itself, as a matter
of ordinary language, the relevant parts of the draft
order do not seek to vary or omit services: rather
they seek to reduce the class of individuals who are
entitled to receive those services by reference to a
personal characteristic or circumstance unrelated to
the services. Of course, the words of section 9(2)(b)
have to be interpreted in their context, and I accept
that a sufficiently clear and strong context could
justify a different conclusion, in the sense that the
words of section 9(2)(b) could, as a matter of
language, just about extend to a regulation such as the
draft order. Nonetheless, that is not their natural
meaning, and, of course, the natural meaning of the words
in question is an important factor in an issue of statutory
interpretation, particularly when they suggest that a so-
adding to, varying or omitting services, and not the individuals

to whom the services may be provided.
called Henry VIII power does not extend to authorise

the subordinate legislation in question.
31. When one turns to the wider statutory context, I
consider that it supports, rather than undermines, the
conclusion indicated by the natural meaning of the
words of section 9(2)(b) on their own. First, section
9(2)(b) permits a variation or omission of the services
set out in Part 1 of Schedule 1, by, inter alia,
modifying that Part or Part 2 of that Schedule. Each of
the services identified in Part 1 and Part 2 is linked to
a specific type of legal issue or claim, and has nothing
to do with the personal circumstances or
characteristics, and in particular the geographical
residence, of the potential recipient of the services,
34. Looking elsewhere in LASPO, whereas section

9, the section under which the draft order was
purportedly made, is concerned with the issues in
respect of which civil legal services are to be
available, section 11 of LASPO is the provision
which appears to be concerned with identifying the
characteristics or circumstances of individuals who
are to qualify for civil legal aid. Section 11 gives rise to
two points in favour of PLPs case. First, the very fact
that it is that section which sets out the personal
characteristics or circumstances of those individuals who
are entitled to civil legal aid provides obvious support that
such matters are outwith section 9. Secondly, the factors
listed in section 11(1) or (3), some of which are
47
F-162
the Lord Chancellor to make limitations such as

those already found in paras 3(a) and 39(a) of Part 1
of Schedule 1 to LASPO, and explained in para 8
above.
37. Finally, looking at the issue more broadly, it
is said that one of the main purposes of Part 1 of
described in para 7 above, are concerned with criteria

which are connected to the need of the individual for the
services, the cost of the services, the extent and likelihood
of the benefit from those services and the conduct of the
individual in connection with the services. There is no
criterion which is based on personal characteristics or
circumstances which have nothing to do with the issue
involved, the services concerned, or the need of the
individual concerned for financial assistance. (It is true
LASPO was to reduce the availability of legal aid in

connection with legal advice and representation in
relation to civil claims, and that this is also the
that public interest, mentioned in section 11(3)(j),

would be capable in some contexts of extending to
personal characteristics or circumstances, but, read
in their context, those words cannot have such an
effect in section 11(3), and it was not argued
otherwise.) This suggests that the draft order is
reason for the draft order. It is also said that one

of the aims of the provisions of sections 9 and 11
of, and Parts 1 and 2 of Schedule 1 to, LASPO is
to direct legal aid to what are believed to be the
individuals who, and types of claim which, are most
deserving of public support, and that the draft order
has that aim too. However, even if they are right
(which in a broad sense I think they are), those
contentions involve expressing the aim of the legislation
in far too general terms to justify rejecting PLPs case.
attempting to do something which the legislature never had

in mind when enacting Part 1 of LASPO, let alone
section 9. As Lord Carnwath mentioned, that point

is underlined by the strong presumption that, as it is
put in Bennion on Statutory Interpretation 6th ed
(2013), section 129, an enactment applies to foreigners
As is apparent from sections 9 and 11 themselves,

and from the Ministry of Justices June 2011
paper referred to in para 2 above, the purpose of
Part 1 of LASPO was, in very summary terms, to
channel civil legal aid on the basis of the nature
and importance of the issue, an individuals need
for financial support, the availability of other
funding, and the availability of other forms of
dispute resolution. The exclusion of individuals from
within its territory as it applies to persons within that

territory belonging to it.
35. It was conceded on behalf of the Lord Chancellor that

he could not have made the draft order under section 11.
Given that that section is concerned with
prescribing the characteristics and circumstances of
those who should be able to qualify for civil legal
services, it seems to me that that concession tends of
itself to provide additional support for PLPs contention
that the Lord Chancellor cannot make such an order under
section 9.
the scope of most areas of civil legal aid on the ground

that they do not satisfy the residence requirements of
the proposed order involves a wholly different sort of
criterion from those embodied in LASPO and
36. The Court of Appeal concluded that section 41,

and in particular section 41(2)(b), could be invoked
to defeat this contention. It is true that section
41(2)(b) permits any order made under section
9(2)(b) to make provision by reference to
services provided for a particular class of
individual. However, I cannot accept that this
means that the power to make orders under section
9(2)(b) is thereby extended to exclude a whole class
of individuals from the scope of Part 1 of LASPO
by reference to their residence. Section 41 is clearly
articulated in the 2011 paper.

CONCLUSION
38. Accordingly, in agreement with the

Divisional Court, I have reached the conclusion
that the appeal should be allowed on the first, ultra
vires, issue.
39. We had unanimously come to this view at the end

of the argument on the ultra vires issue, and decided
that, subject to the parties seeking to persuade us
otherwise, it would be wiser not to deal with the
discrimination issue. The parties did not seek to
dissuade us from this course, and therefore it
would be inappropriate to say anything more
about it.
*****
intended to grant ancillary powers to those powers which

are, as it were, primarily granted by provisions such as
section 9: it is not intended to permit an alteration in the
nature, or a substantive extension, of those powers. The
observations in Craies, cited in para 26 above, is

very much in point. In my view, in relation to his
powers under section 9(2), section 41(2)(b) enables
(2016) 2 LAW
48
(2016) 2 LAW
F-163
Ministry of Defence v Iraqi Civilians [UK-SC]
(2016) 2 LAW F-163 (UK-SC)
The appellants argued that time had been suspended

for limitation purposes under article 435(1) of the Civil
Code, which suspends the time limit during any period
when there is [an] impediment rendering it impossible for
the plaintiff to claim his right. They said that Coalition

Provisional Authority Order 17 (CPA Order 17),

which gave coalition forces immunity from Iraqi
legal process and jurisdiction and still has force of
law in Iraq, was such an impediment.
The first instance judge directed the hearing of a
Thursday, 12 May 2016

Ministry of Defence
(Respondent)
v
Iraqi Civilians
(Appellant)
[2016] UKSC 25
***
12 May 2016
PRESS SUMMARY
Ministry of Defence (Respondent) v
Iraqi Civilians (Appellant)
[2016] UKSC 25
preliminary issue, namely whether the suspensory proviso

in article 435(1) applied to the claimants proceedings in
England. He held that the limitation period was
JUSTICES: Lord Neuberger (President), Lady Hale

(Deputy President), Lord Mance, Lord Sumption,
Lord Reed
The appellants are 14 lead claimants in claims by over
The Supreme Court unanimously dismisses the appeal

by the Iraqi civilians, and affirms the Court of Appeals
suspended under article 435(1). The Court of

Appeal allowed the Ministry of Defences appeal,
holding that article 435(1) was not engaged,
because the English courts are not bound to apply
CPA Order 17, which is a mere procedural bar that
is irrelevant to proceedings in England.
JUDGMENT
conclusion that the limitation period was not suspended

under article 435(1) of the Iraqi Civil Code. Lord
Sumption gives the only judgment, with which the

other Justices agree.
600 Iraqi citizens who claim to have suffered unlawful

detention and/or physical maltreatment at the hands of
British armed forces in Iraq between 2003 and 2009. The
The Foreign Limitation Periods Act 1984 requires an

English court to apply to English proceedings a foreign law
of limitation which will have been designed for proceedings
in the foreign country. This requires a process of
claims are brought in tort in England against the

Ministry of Defence. The torts are governed by Iraqi
law. The Foreign Limitation Periods Act 1984
provides that where a claim is brought in England
which is governed by a foreign law, the English
courts are to apply the foreign law of limitation. In a
transposition. Facts that the foreign law would have

treated as relevant to the foreign proceedings might
be irrelevant to the proceedings in England [13].
Where the Iraqi law of limitation depends on some fact
about the proceedings, the English court must ask whether
substantial number of these cases the action was begun

more than three years after the relevant claimant became
aware of the injury and the person who caused it, and was
therefore time-barred under article 232 of the Iraqi Civil
Code.
that fact is applicable to proceedings brought in England,

and not to hypothetical proceedings that might have been
brought in Iraq [15]. CPA Order 17 applies only in
Iraq. It is not an impediment to the only relevant

proceedings, which are in England. It does not
therefore suspend the running of the Iraqi law
limitation period [16].

index.html

in the judgment
***
49
F-164
Easter Term
[2016] UKSC 25
which it was based between barring the remedy

and extinguishing the right.
2. The Foreign Limitation Periods Act 1984
provided for the English courts, with limited
exceptions, to apply the limitation rules of the lex
causae. Section 1 provides:
JUDGMENT
Ministry of Defence (Respondent) v
Iraqi Civilians (Appellant)
1. Application of foreign limitation law

(1) Subject to the following provisions of this
Act, where in any action or proceedings in a
court in England and Wales the law of any other
country falls (in accordance with rules of private
international law applicable by any such court) to
be taken into account in the determination of any
matter (a) the law of that other country relating to
limitation shall apply in respect of that matter for
the purposes of the action or proceedings; ... and
(b) the law of England and Wales relating to
limitation shall not so apply.
(4) A court in England and Wales, in exercising in

pursuance of subsection (1)(a) above any
discretion conferred by the law of any other
country, shall so far as practicable exercise that
before
LORD NEUBERGER, President
LORD MANCE
LORD SUMPTION
LORD REED
JUDGMENT GIVEN ON
12 May 2016
Heard on 25 April 2016
Appellant
Respondent
Richard Hermer QC
Derek Sweeting QC
Marie Louise Kinsler
James Purnell
(Instructed by The
Alison Pickup
Government Legal
Andrew Scott
(Instructed by Leigh Day)
(2016) 2 LAW
Department)
discretion in the manner in which it is exercised in

comparable cases by the courts of that other country.
***
LORD SUMPTION:
3. The law of a country relating to limitation is

defined by section 4. It means
(with whom Lord Neuberger, Lady Hale,

Lord Mance and Lord Reed agree)
so much of the relevant law of that country as

(in any manner) makes provision with respect to
a limitation period applicable to the bringing of
proceedings in respect of that matter in the courts
of that country and shall include references to
so much of that law as relates to, and to the effect
of, the application, extension, reduction or
interruption of that period.
1. English private international law distinguishes

between matters of substance which are governed by
the proper law of the relevant issue (lex causae), and
matters of procedure which are for the law of the
forum. The distinction was preserved when the
English principles relating to the choice of law

were amended and partly codified by the Private
International Law (Miscellaneous Provisions) Act
1995: see section 14(3)(b). Limitation, which
4. For this purpose, the relevant law means
deprives the litigant of a forensic remedy but does not

extinguish his right, is for that reason classified by the
English courts as procedural. The result was that
the procedural and substantive law applicable,

apart from any rules of private international law,
by the courts of that country.
until the position was altered by statute in 1984,

the English courts disregarded foreign limitation
law and applied the English statutes of limitation
irrespective of the lex causae. This was widely
regarded as unsatisfactory, mainly because of the
rather technical character of the distinction on
5. The question which arises on this appeal is how

the Act is to be applied in a case where the foreign
limitation law depends for its operation on facts which
are not germane to litigation in England.
6. The claimants are 14 lead claimants, representative

of more than 600 clients of solicitors Leigh Day.
50
(2016) 2 LAW
They claim to have suffered unlawful detention

and/or physical maltreatment at the hands of British
armed forces in Iraq between 2003 and 2009, for
which the Ministry of Defence is liable in tort. It is
F-165
period. Broadly stated, the question is whether the
suspensory proviso in article 435(1) applies to the

current proceedings in England. It is not
suggested on this appeal that there has ever been
any impediment preventing them from suing the
British government in England.
9. The judge, Leggatt J, directed the hearing of a
preliminary issue on this point, among others, and
subsequently decided it in favour of the
claimants. He regarded the question whether the
relevant impediment had to affect Iraqi or English
proceedings as turning on the territorial scope of
article 435 as a matter of Iraqi law. He accepted
the evidence of the claimants expert that an Iraqi
court would construe article 435 of the Civil
Code as referring to impediments making it
impossible for the claimant to assert his claim in
Iraq. He therefore concluded that because CPA Order
agreed between the parties that any liability of the Ministry

in tort is governed by Iraqi law. Under article 232 of
the Civil Code of Iraq, the standard limitation period
applicable to claims of this kind in Iraqi law is three years
from the day on which the claimant became aware of the
injury and of the person who caused it. This action was
begun more than three years after most of the claimants
must have been aware of these matters.
7. As far as those claimants are concerned, the fate

of their claims may depend on the operation of
article 435 of the Civil Code, which is one of a
number of provisions suspending the running of
time in particular cases. It provides:
Article 435 - (1) The time limit barring the
hearing of the case is suspended by a lawful
excuse such as where the plaintiff is a minor or
interdicted and has no guardian or is absent in a
remote foreign country, or where the case is
between spouses or ascendants and descendants,
or if there is another impediment rendering it
impossible for the plaintiff to claim his right.
(2) The period which lapses while the excuse still
exists (lasts) shall not be taken into account (for
the running of the time limitation).
17 deprived and still deprives the Iraqi courts of

jurisdiction to entertain proceedings against the British
government, the limitation period was suspended
indefinitely, subject only to section 2(1) of the
Foreign Limitation Periods Act, which disapplies

section 1(1) in a case where its application would
cause undue hardship. The judge described this as
a very unattractive result. However, he thought
that the alternative was at least as irrational. This
was because if there was an impediment to
English proceedings which lasted until after the
expiry of the Iraqi limitation period, but no such
impediment in Iraq, the running of time would be
suspended in England and the action could
subsequently proceed there notwithstanding that
it would have been time-barred in Iraq. Leggatt J
did not decide whether section 2(1) affected the
position in this case, because it was not part of the
preliminary issue which he had directed.
10. The Court of Appeal allowed the appeal. The
leading judgment was given by Tomlinson LJ, with
whom Lord Dyson MR and Vos LJ agreed. He
rejected the judges view that the answer turned
on the territorial scope of article 435. In his view,
8. The circumstance on which the claimants rely as

engaging this provision is that Coalition Provisional
Authority Order 17, which had and still has the force of
law in Iraq, made it impossible for them to sue the
British government in Iraq. Section 2(1) of the
Order provides that coalition forces in Iraq

(including British forces) are immune from Iraqi
legal process. Section 2(3) provides that
coalition personnel are to be subject to the
exclusive jurisdiction of their parent states, and
immune from local criminal, civil and
administrative jurisdiction other than by persons
acting on behalf of their parent states. Section
2(5) provides that parent states may waive the
immunity in respect of criminal liability at the
request of the Coalition Provisional Authority if
there are no relevant criminal sanctions in the
parent state. It is agreed between the parties that CPA
an English court was bound to disregard any

impediment arising from CPA Order 17. This was
because that order was not a law with respect to

limitation which the English courts were bound to
Order 17 made it impossible for the claimants to sue the

British government in Iraq throughout the relevant
51
F-166
apply by sections 1(1) and 4 of the 1984 Act. Nor

was it a substantive rule of Iraqi law which
applied by virtue of the ordinary principles of
English private international law. It was a mere
procedural bar to proceedings in Iraq which had
no relevance in an English court.
11. The Court of Appeal was of course right to say that
observed, regarded that as depending on the

territorial ambit of article 435 as a matter of Iraqi
law. On that footing it is obvious that a
procedural time-bar arising under Iraqi law
applied only in Iraq. But in my opinion, this was
not a question of Iraqi law but of English law. In
English proceedings, the relevant law is the
Foreign Limitation Periods Act. Where the cause
of action is governed by a foreign law, the Act
requires an English court to ascertain the relevant
rules of the foreign law of limitation and then to
apply it to proceedings in England. Because the
foreign law of limitation will have been designed
for foreign proceedings, that necessarily involves
a process of transposition. There may be facts which
CPA Order 17 had no legal effect in an English court. It

expressly confers immunity only in respect of Iraqi legal
process. It is not a rule of limitation, but a particular
form of state immunity, which serves as a limitation on
the jurisdiction of the courts. It is therefore necessarily
procedural and local in nature. It is inherent in the
whole concept of state immunity that it does not

confer immunity on a state in its own courts.
However, although CPA Order 17 is devoid of legal
the foreign law of limitation would treat as relevant to

foreign proceedings but which are irrelevant to
proceedings in England.
effect outside Iraq its consequences may nonetheless be

relevant as fact. It is as fact that those
consequences affect the operation of article 435

of the Civil Code. The question posed by that
article is whether CPA Order 17 was as a matter
of fact an impediment rendering it impossible
for the plaintiff to claim his right. Impediment
and impossibility are questions of fact. This is
no less true because the impediment is the
consequence of a rule of Iraqi law.
12. Left to my own devices, I might have doubted
whether article 435 was concerned with problems
of this kind. On the face of it, an impediment is
something that prevents the litigant from
asserting some right that he has or from invoking
some jurisdiction that the court has, and not the
absence of a relevant right to assert or a
jurisdiction to invoke. But these are questions of
Iraqi law on which the parties are agreed. It is
14. It is sometimes said that the ascertainment of

foreign law involves asking what the foreign
court would decide. That is of course true, but the
English court is concerned only with what the
foreign court would decide to be the relevant
foreign law. It is the function of the English court
to apply that law to the relevant facts. In just the
same way, where the foreign law confers a
discretion on the foreign court, an English court
exercising that discretion under section 1(4) of
the 1984 Act would do so in the manner in
which it is exercised in comparable cases by the
foreign court, but taking account of those respects
in which because the proceedings are being
brought in England the facts are not comparable.
15. It follows that where the Iraqi law of limitation
depends for its operation on some fact about the
proceedings, the relevant fact is that applicable to the
actual proceedings, viz those brought in England, and
not some hypothetical proceedings that the claimants
common ground that CPA Order 17 was an impediment

and that it did render it impossible for the claimants to
sue in Iraq. Their agreement on this point is an
agreement about the practical consequences of

the Order. However, it does not follow from the fact
that an English court recognises the consequences of a

rule of Iraqi law that it is giving effect to the rule in
question.
13. The real question is whether it is legally relevant

when the claimants have brought proceedings in
England what impediments might have prevented
similar proceedings in Iraq. The judge, as I have
(2016) 2 LAW
52
Wow, what a cunning way of evading human rights

responsibilities by the English Supreme Court! Simply
because English courts need not apply extension of
limitation orders of an Iraqi court, a substantive damage,
to say the least, to the lives and properties of Iraqi
citizens has to be trashed!? What more can be expected of
a court of a nation which is an international aggressor in
the first instance? - IMS.
(2016) 2 LAW
have not brought in Iraq, and in this case could not have
brought in Iraq. We are concerned with
different facts. The facts relevant to proceedings

in England are not necessarily the same as those
which would be relevant to proceedings in Iraq.
17. I should, finally, return to Leggatt Js view
that it would be irrational for an English court to
concern itself with impediments to English
proceedings because if there was a temporary
impediment in England but none in Iraq, a court
applying the Iraqi law of limitation to an action in
England might be bound to allow the action to
proceed here when it was time-barred in Iraq.
I have to say that I cannot see why this should be
thought strange, let alone irrational. It simply
reflects the fact that the Iraqi law of limitation is
qualified by reference to practical impediments to
the making of a claim, and those impediments
may be greater in some jurisdictions than in
others. On the judges hypothesis, the reason why
Iraqi proceedings would have been time-barred
before corresponding proceedings in England, is
that if the claimants had proceeded in Iraq, they
would not have been impeded.
18. These reasons differ from those of the Court of
Appeal, but the result is the same. In my opinion, the
impediment and impossibility affecting the

bringing of legal proceedings. That depends on
the personal situation of the claimants in relation
the relevant proceedings, namely those brought in
England.
16. The claimants submission, if accepted, would
mean that there was no limitation period at all affecting
the present proceedings in England, by reason of a
consideration (CPA Order 17) which had no

relevance to English proceedings because it has
no application outside Iraq and has never
impeded resort to the English court. The main
argument advanced in support of it was that an
English court applying the Act of 1984 must give
effect to the whole of the relevant Iraqi law of
limitation, and not just to part of it. This point
was reinforced by reference to section 2 of the
Act of 1984. Section 2(1) disapplies the relevant
foreign law of limitation so far as its application
would conflict with English public policy, and
section 2(3) disapplies it so far as it suspends the
running of time on account of the absence of a
party to the action or proceedings from any
specified jurisdiction or country. The point made
is that where the Act disapplies some part of the
foreign law of limitation, it does so expressly,
thereby impliedly excluding its disapplication in
any other circumstances. I reject the submission
because it assumes that because the Iraqi law of
limitation would treat certain facts as relevant to
Iraqi proceedings, to treat those facts as irrelevant
to English proceedings involves disapplying part
of Iraqi law. It does not. It simply involves
applying the same principles of Iraqi law to
F-167
appeal must be dismissed and the order of the Court of

Appeal affirmed.
*****
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Certainly, why should there be limitation at all for human

rights violations and imperialist excesses? As for as
Indian law is considered, there is no limitation for any
criminal offence punishable with more than 3 years
imprisonment. Are human rights violations complained
here and the remedy of compensation, etc. requested for
any the less criminal? And this even after expressly
noting and agreeing that they could not have brought any
such litigation in Iraq and there is specific provision of
extension of limitation under Iraqi law in such cases is
there any justice in the Supreme Court of UK? - IMS.
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53
F-168
McBride v Scottish Police Authority [UK-SC]
(2016) 2 LAW F-164 (UK-SC)
(2016) 2 LAW
McKie Scandal generated much media interest and criticism

of the fingerprint service in Scotland.

The appellant, Ms McBride, was one of the experts involved

in the McKie Scandal, and she and the other experts were
suspended from 3 August 2000 while investigations took place.
On appeal from: [2013] CSIH 4
One investigation concluded that the experts had not

been guilty of any malicious wrongdoing and
recommended that they return to work without any
disciplinary action being taken. Accordingly, in May
Thursday, 15 June 2016

McBride
(Appellant)
v
Scottish Police Authority (Respondent) (Scotland)
2002 Ms McBride and the other experts resumed work on

restricted duties and undertook extensive retraining. They

[2016] UKSC 25
***
15 June 2016
PRESS SUMMARY
McBride (Appellant) v Scottish Police Authority
(Respondent) (Scotland)
[2016] UKSC 27
sought to return to full duties (including the signing of

joint reports and giving evidence in court) but were
not allowed to do so. This was because there remained
disagreement, within the SCRO, nationally and
internationally, over the McKie Scandal and concern
that any evidence from the experts at trial would be
undermined by cross-examination on matters relating
to the scandal.
In 2007 the Scottish Police Services Authority
(SPSA, the respondent, now known as the Scottish
Police Authority) was established. David Mulhern was
tasked with integrating the fingerprint service into a
new Scottish Forensic Science Service. He made it clear

Clarke, Lord Wilson, Lord Reed and Lord Hodge
This appeal concerns the proper approach of Employment
he did not want the experts involved in the McKie Scandal to

transfer to the SPSA but that redeployment was an option.
After her employment transferred to the SPSA, Ms
McBride indicated that she would discuss redeployment but
wished first to discuss reinstatement to unrestricted duties.
Tribunals (ETs) when ordering that an employer reinstate

an employee who has been unfairly dismissed. The appeal
arises from the scandal over the disputed identification of a
fingerprint in a murder inquiry in 1997, which resulted in the
trial and conviction (later quashed) of David Asbury (the
McKie Scandal). A fingerprint at the murder scene was
There was no such discussion and she was dismissed.

She claimed for unfair dismissal. The ET held that Ms
identified by four experts from the Scottish Criminal

Records Office (SCRO) fingerprint bureau as
belonging to Detective Constable Shirley McKie. The
SCRO provided services for the police and Crown
Office, and their experts duties included signing
fingerprint reports for use in criminal trials and giving
evidence at trial. As a result of the identification, DC McKie
McBride had been unfairly dismissed and ordered that she be

reinstated to the position of Fingerprint Officer and treated
in all respects as if she had not been dismissed. In its
was charged with perjury for giving evidence at Mr Asburys

trial that she had never been to the crime scene. During DC
ETs judgment on remedy and remitted the case to a freshly

constituted tribunal to determine compensation, holding that
the ETs decision that it was practicable for the SPSA to
comply with an order for reinstatement was perverse. On Ms
McBrides appeal to the Court of Session, although the
reasoning the ET held it would be practicable for the

SPSA to reinstate the claimant to the role of (noncourt going) fingerprint expert. The SPSA appealed,
and the Employment Appeal Tribunal (EAT) revoked the
McKies trial differences of opinion emerged about

the fingerprint identification and she was acquitted. The
Inner House rejected the EATs conclusion that the

ETs order for reinstatement was perverse, it held that

index.html
the ET had erred in law by ordering the SPSA to employ Ms

McBride on altered contractual terms. Ms McBride
appealed to the Supreme Court.

JUDGMENT
The Supreme Court unanimously allows Ms McBrides
appeal. Lord Hodge (with whom the other Justices agree)
54
(2016) 2 LAW
F-169
spoke of an understanding, which may suggest

that the ET was considering the practical context
of the reinstatement rather than an alteration of
the terms of employment. The words in
parenthesis confirmed that the order for
reinstatement did not amount to an order that the
employer must alter the status quo by allowing
Ms McBride to resume the excluded duties [44].
Lord Hodge rejects an additional argument by the
respondent that the ETs view on the practicability of
compliance with the reinstatement order was perverse
because it had the potential to expose the SPSA to a
claim by Ms McBride that it was in fundamental
breach of her employment contract by refusing to
allow her to perform the excluded duties. This
argument was not developed in the courts below and,
in any event, would not have succeeded if properly
developed at the time in the light of the ETs findings
of fact [30-31 & 46-52].
References in square brackets are to paragraphs in
the judgment
gives the leading judgment. The case is remitted to the

original ET, or to a tribunal which includes the
member or members of the original ET who are still in
office, to consider in what respects it should vary its
order for compensation in view of the time that has
passed since the order.
Lord Hodge observes that the ETs order for
reinstatement (set out at [18]) viewed alone is not open
to criticism, as it reflects the definition of such orders
set out under s.114(1) of the Employment Rights Act
1996. The question is whether the context in which
the order was made and the ETs reasoning in support
of the order should give rise to a different
interpretation of the order [39].
Lord Hodge answers this question in the negative.
The ET was not seeking to impose a contractual
limitation in the reinstatement order removing the
excluded duties (i.e. signing reports and attending
court to give evidence) from Ms McBrides job
description. Rather it was recognising a practical
limitation on the scope of her work caused by
circumstances beyond her and her employers control
[40]. This conclusion is supported by four reasons:
(1) The ET was aware both of Ms McBrides terms
of employment and that for several years
previously she had been actively employed as a
fingerprint officer but had not been asked or
allowed to sign reports or give evidence in court.
That was the status quo to which she would have
returned pursuant to a reinstatement order [41].
(2) The ET was aware that Ms McBride wanted to
perform the excluded duties but held that the
SPSAs decision that she could not return to
those duties was reasonable [42].
(3) The ET rejected the idea that continuing in a noncourt going role amounted to alternative
employment. It criticised Mr Mulherns evidence,
which had been calculated to give the impression
that Ms McBride had done little of value in the
previous years, and accepted the evidence of Ms
McBrides managers about the amount of work
carried out by fingerprint experts which does not
involve the excluded duties and their assessment
that Ms McBride had made a valuable
contribution in the years in which her duties had
been restricted [43].
(4) The ETs references to Ms McBride being
reinstated to a non-court going fingerprint
officer role were included in parenthesis and
***
Trinity Term
[2016] UKSC 27
JUDGMENT
McBride (Appellant) v Scottish Police
Authority (Respondent) (Scotland)
before
LORD CLARKE
LORD WILSON
LORD REED
LORD HODGE
JUDGMENT GIVEN ON
15 June 2016
Heard on 3 March 2016
Appellant
Calum MacNeill QC
Kenneth Gibson
(Instructed by Thorley
Stephenson SSC)
Respondent
Brian Napier QC
Tom Brown
(Instructed by Maclay
Murray & Spens LLP)
***
55
F-170
LORD HODGE: (with whom Lady Hale, Lord

Clarke, Lord Wilson and Lord Reed agree)
1. The appellant (Ms McBride) was unfairly
dismissed. The Employment Tribunal ordered her
reinstatement. The issue in this appeal is whether the
positions without any disciplinary action being

taken. On 20 May 2002 Ms McBride and the
other three experts returned to work on restricted
duties.
5. It should be explained that the SCRO fingerprint
bureau provided services for the police and the
Crown Office. The duties of fingerprint experts
included
signing
reports
on
fingerprint
identification for use in criminal trials and giving
evidence at such trials. Because Scots criminal law
requires corroboration, it was and is the practice for
fingerprint experts to produce joint reports and for
both experts to be available, if required, to give oral
evidence in support of their findings, although
frequently their report is accepted by the defence or,
if it is not, only one of the two signatories gives oral
evidence at trial.
6. On return to work Ms McBride and the other
three experts resumed work on restricted duties
but also undertook an extensive retraining
programme over 12 to 18 months with a view to
their return to full duties, including the signing of
joint reports and giving evidence in court. The
four experts sought to return to full duties but
were not allowed to do so.
7. The problem was that there remained disagreement
tribunal erred in so doing.
2. The appeal stems from the controversy created

by the disputed identification by four fingerprint
officers in the Scottish Criminal Records Office
(the SCRO) of a fingerprint in a murder inquiry
in 1997. They identified the print which was
found at the locus of the murder as being that of
Detective Constable Shirley McKie. David
Asbury was tried and convicted of the murder,
but his conviction was later quashed. As a result
of the disputed identification, DC McKie was
charged with perjury for giving evidence, in the
trial, that she had had never been to the place
where the fingerprint was found. During DC
McKies trial differences of opinion were
expressed about the identification, and she was
acquitted of perjury. A number of investigations
followed which generated intense media interest
and criticism of the fingerprint service in
Scotland.
FACTUAL BACKGROUND
between fingerprint experts, within the SCRO, nationally

and internationally, over the disputed identification. It
3. Ms McBride was employed as a fingerprint

officer in the SCRO from 1984. She was
originally employed by the Strathclyde Joint
Police Board but her employment was transferred
to the Scottish Police Services Authority (the
SPSA) with effect from 1 April 2007. Her
was and is the task of prosecuting counsel in the

Crown Office, under the direction of the Lord
Advocate, to select witnesses to give evidence in
trials. There were concerns in the Crown Office that
the use of any of the four experts in a criminal trial
would encourage defence counsel to cross-examine
on matters relating to the DC McKie controversy in
order to weaken the significance of the fingerprint
evidence in the eyes of the jury. In September 2006,
Lord Boyd of Duncansby, who was then Lord Advocate,
gave evidence to the Scottish Parliaments Justice 1
Committee, which was inquiring into the SCRO and
the Scottish Fingerprint Service. He was asked
dismissal from employment occurred on 1 May 2007 in the

context of that transfer.
4. Ms McBride and three other officers were

suspended from duties from 3 August 2000 until
20 May 2002, while investigations were
undertaken. One investigation concluded that the
four experts had not been guilty of any malicious
wrongdoing. The Black report of February 2002
concluded that no matters of misconduct or lack
of capability have taken place in the work
surrounding [the fingerprint which was the subject of
the disputed identification] and recommended that
the four experts be returned to their normal
(2016) 2 LAW
whether the Crown Office intended to call the fingerprint

officers involved in the DC McKie case as expert witnesses
in the future. In response he expressed the view that a
trial in which any of those officers gave evidence might
become a trial of the fingerprint officer rather than the
accused and that this was a situation that he wished to
avoid.
56
(2016) 2 LAW
8.
F-171
There was no discussion at the meeting of her

returning to unrestricted duties or of the status quo
of restricted duties continuing. On the same day, Mr
Ms McBride and her colleagues remained on restricted

duties. In their evidence to the Employment Tribunal
some of her colleagues stated that she fulfilled a

worthwhile role and had made a valuable
contribution to her department. Two managers who
had direct experience of her work gave evidence
that she was seen as trustworthy and conscientious.
See para 43 below.
9. After the Scottish Government had announced its
intention to establish the SPSA, the Justice Minister
instructed Assistant Chief Constable David
Mulhern to review the Scottish fingerprint service
and produce an action plan to develop it as an
integrated part of the new Scottish Forensic Science
Service. Mr Mulhern was appointed the interim
chief executive of the SPSA, which was intended to
bring together the work of five separate bodies.
Because of the continued disagreements over the
disputed identification, Mr Mulhern saw the creation of
Nelson gave Ms McBride a letter in which he informed her

that her employment would terminate forthwith because of
her inability to carry out the full range of [her] duties and
the failure to identify any suitable redeployment options
for [her].
13. Ms McBrides internal appeal against her dismissal

was unsuccessful. She presented a complaint of unfair
dismissal to an Employment Tribunal. Before discussing
the legal proceedings, I mention, first, the terms of
her contract of employment and, secondly, later
events.
THE CONTRACT OF EMPLOYMENT
14. Ms McBrides job description stated her job

title as fingerprint officer and described her main
functions as a fingerprint expert as being to
provide an efficient and effective identification
support to operational police personnel. Of the 12
listed job activities, one and part of another had
become excluded duties as a result of the SPSAs
decision that she was not to give evidence in court.
They were:
2. To prepare court cases and give evidence as
required.
3. To check and sign identifications prepared by
other Fingerprint Officers and trainee
Fingerprint Officers.
Ms McBride could not give evidence in court and
so could not perform task 2. She was able to check
identifications under task 3 above. But she could
not sign the identifications because she was not
allowed to give evidence in court. Other activities,
such as examining the fingerprints lifted by scene of
crime
officers,
assessing
and
verifying
identifications, validating fingerprint classifications,
preparing and collating statistical information,
liaising with investigating officers, assimilating new
technology and assisting in the training of
fingerprint trainees, remained open to her.
LATER EVENTS
a new fingerprint service within the Scottish Forensic

Science Service as of the utmost importance.
10. In the lead-in to the creation of the SPSA,
Mr
Mulhern made it clear that he did not want Ms McBride
and the other three experts involved in the disputed
identification to transfer to the SPSA. At a meeting on
12 September 2006 between representatives of the

employer and trade union representatives he stated
that there would be an opportunity to take
redeployment within Strathclyde Police and that he
had not considered the possibility that the
fingerprint officers might return to full duties. Ms
McBride wanted to return to full duties and
expected that the question of her return to full
duties would be discussed after her transfer to the
SPSA.
11. Ms McBrides employment transferred to the
SPSA on 1 April 2007. She was invited to a
meeting on the next day to discuss redeployment.
She asked her employers representatives to
disclose who had made the decision to consider
only redeployment, and when and why that decision
had been made. Her questions were not answered
correctly until 27 April 2007.
12. On 1 May 2007 at a meeting chaired by Mr Tom
Nelson, the SPSAs director of forensic services, Ms
15. A
public judicial inquiry, the Fingerprint Enquiry,

chaired by Sir Anthony Campbell, reported in
December 2011 (after the decision of the Employment

Appeal Tribunal discussed below). It concluded among
McBride said that she was willing to discuss redeployment

but wished an opportunity to discuss reinstatement to
unrestricted duties before she considered redeployment.
other things that Ms McBride and her colleagues had not
57
F-172
acted improperly in identifying the fingerprint, although it

was not DC McKies fingerprint.
resignation of staff involved in the disputed

identification. It rejected the idea that the articles
demonstrated a breakdown in the trust and
confidence between Ms McBride and Mr Mulhern.
It acknowledged that Ms McBride had had
legitimate concerns when she had raised a
grievance when Mr Mulhern was appointed. The
ET also held (para 370) that Ms McBride was right
in her belief that Mr Mulhern had deliberately not
provided her with full and accurate details in
response to the questions which she posed on 2
April 2007 (para 11 above). As against its finding
that Ms McBride held Mr Mulhern responsible for
the decisions made and to a certain degree
distrusted him, the ET weighed in the balance the
fact that the SPSA was a large employer with over
1,800 employees and that Mr Mulhern as chief
executive, would not have day to day contact with
her (paras 371-372).
21. In response to the employers submission that
Ms McBride, on returning to work, would seek to
vindicate her disputed identification of the
fingerprint, the ET acknowledged both that she
continued to believe that her identification had been
correct and that the thrust of her evidence had been
about returning to court-going duties. But it stated
(para 373):
We considered our conclusion that the decision
of the respondent that the claimant could not
return to court going duties, was a reasonable
decision, will move this matter forward for both
the claimant and the respondent.
In so saying the ET appears to have thought that its
16. David Mulhern ceased to be the chief

executive officer and left the employment of the
SPSA in April 2009. The SPSA ceased to exist on
1 April 2013 and its rights and obligations were
transferred to the respondent (the SPA).
THE LEGAL PROCEEDINGS
(i) The Employment Tribunal
17. The
Employment Tribunal (the ET) in a judgment

dated 26 January 2009 found that Ms McBride had been
unfairly dismissed. Because the arguments which this
court has heard in this appeal have included

opposing interpretations of the ETs judgment and
reasons and the appeal turns on whether the ET
erred in law, it is necessary to set out the relevant
part of the judgment and to refer to parts of the
supporting reasoning.
18. The ET in its judgment ordered Ms McBrides
reinstatement in these terms:
The claimant shall be reinstated by the respondent
to the position of Fingerprint Officer and treated
in all respects as if she had not been dismissed.
The judgment also awarded Ms McBride a sum as
arrears of pay from the date of her dismissal and
ordered the SPSA to restore to her all rights and
privileges, including pension rights, to which [she]
was entitled at the time of her dismissal.
19. In its reasons, the ET set out the reasons for
its judgment in detail and with thoroughness.
After finding that the dismissal of Ms McBride
had been unfair, the ET turned to the question of
remedy. In para 356 the ET commenced its
discussion by stating:
We must now consider the issue of remedy. The
claimant seeks reinstatement if successful, and
we firstly considered this matter (it being
support for the SPSAs decision to restrict Ms McBrides

duties would make it easier for both employee and
employer to work together because it might persuade Ms
McBride that she would not succeed in her quest to return
to the excluded duties.
22. The ET (para 374) concluded on balance that it

would be practicable for the SPSA to reinstate the
claimant to the role of (non court going) fingerprint expert
(again emphasis added). It rejected the submission that
this was creating a job for Ms McBride, because she
would be reinstated to the job that she had carried
out for several years and because there were other
examples of fingerprint officers who did not carry
out court going duties but who continued to fulfil a
role.
understood that reinstatement would be to a non court

going fingerprint officer role). (emphasis added as counsel
for the SPA submitted that this demonstrated an error of law)
20. The ET then referred to sections 114 and 116 of

the Employment Rights Act 1996 (the 1996 Act)
and addressed the question whether it was
practicable for the SPSA to comply with an order
for reinstatement. The ET referred to press articles
about Mr Mulherns alleged wish to force the
(2016) 2 LAW
58
(2016) 2 LAW
F-173
(iii) THE INNER HOUSE
23. The ET also held that it was just and equitable

that a reinstatement order be made because Ms
McBrides conduct had not contributed to her
dismissal: (a) her inability to return to court going
duties was not the result of any misconduct and
(b) her unwillingness to discuss redeployment in
late April 2007 had been justified by her employers
prevarication.
24. The ET summarised its decision in the closing
paragraphs. It stated (para 379):
27. Ms McBride appealed to the Inner House of the

Court of Session. An Extra Division of the Inner
House (Lady Paton, Lady Dorrian and Lord
McGhie) heard the appeal. In its opinion the Inner
House rejected the EATs conclusion that the ET had been
perverse. It criticised the EAT for substituting its
own perception of the facts for the interpretation of

the ET and stated that the reasons which the EAT
gave for implying that the ET might be partial did
not withstand scrutiny. But the Extra Division held
that the ET had erred in law; it interpreted the ETs
judgment as an order to employ Ms McBride on
altered contractual terms. As reinstatement had to
be unconditional, the ET had misapplied the law.
The Extra Division therefore refused the appeal so far as it
We decided, having taken all of the above

points into account, to order the respondent to
reinstate the claimant to the position of
fingerprint officer: the respondent shall treat the
claimant in all respects as if she had not been
dismissed.
sought to restore the ETs order of reinstatement, but

allowed the appeal to the extent of remitting the case to the
original ET.
(ii) THE EMPLOYMENT APPEAL TRIBUNAL
25. The SPSA appealed to the Employment Appeal

Tribunal (EAT) which revoked the ETs
judgment on remedy and remitted the case to a
freshly constituted tribunal to determine
compensation. The EAT decided that the ETs decision
28. Ms McBride appeals to this Court.

THE ISSUES IN THIS APPEAL
29. The
central issue in this appeal is the correct

interpretation of the ETs judgment. It is whether the
that it was practicable for the SPSA to comply with an

order for reinstatement was perverse because of Ms
McBrides continued demands to be allowed to resume the
excluded duties. The EAT stated (para 35):
ET had erred in law by purporting to reinstate Ms

McBride to employment which was different from
the employment from which she had been
dismissed. Mr Calum MacNeill QC for Ms
McBride submitted that the ET had not fallen into
error because it had sought to place her in the same
contractual relationship as she was in before her
dismissal. Mr Brian Napier QC, for the SPA,
argued the contrary. He accepted the Inner Houses
criticisms of the EATs finding of perversity and
did not seek to defend that finding or the EATs
suggestion of bias.
30. Mr Napier however sought to advance a new
argument, which had not been pursued before the
ET, the EAT or the Inner House, as a fall back if
this Court took the view that the ET had not sought
to alter the terms of Ms McBrides employment
contract. He submitted that the ET had erred in its
The clear picture is that returning the claimant

to work for the respondents in the limited non
court role provided for by the Tribunal would not
work. Far from being practicable, the
impression presented was one of the
reinstatement envisaged by the Tribunal being
liable to have disastrous consequences.
26. The EAT expressed sympathy with the

argument advanced on behalf of the SPSA that Ms
McBride had contributed to her dismissal, because
she had been given the answers to her questions by
27 April 2007 and yet had persisted in her refusal to
engage in discussions about redeployment. But it
decided that it was appropriate that a freshly constituted
tribunal should consider whether monetary compensation
should be reduced as a result of her conduct. It justified
judgment of practicability and had reached a perverse

decision for a different reason from that which the EAT
had found. The decision, he submitted, was perverse
because it had not considered that its order, if made, would
return the parties to a position of contractual conflict in
which Ms McBride could assert (a) a contractual right to
carry out the excluded duties and therefore (b) that her
the requirement of a differently constituted tribunal

because [t]he nature and extent of [the ETs]
criticism of Mr Mulhern and of the respondents is
such as to be indicative of a significant measure of
sympathy towards the claimant (para 37).
59
F-174
employer was in material breach of contract when it

refused to allow her to perform those duties.
dismissal. But the basic dichotomy between the two
types of order of which Simler J spoke is in my view

correct.
31. In my view, this additional argument comes too

late. It was not developed in the tribunals below
and is not supported by findings of fact which
were made in the context of such a submission. In
any event, on the facts found by the ET, I am not
persuaded that the argument, if properly
developed at the time, would have succeeded.
I therefore comment on this argument only briefly
after I have examined the statutory provisions and
addressed the central issue in this appeal.
35. Thus, the ET has no power to order reinstatement in

terms which alter the contractual
complainants employment.
terms
of
the
36. When considering whether to make an order for

reinstatement the tribunal must take into account:
(a) whether the complainant wishes to be reinstated,
(b) whether it is practicable for the employer to comply
with the order and (c) where the complainant has caused
or contributed to the dismissal, whether it would be just to
order his reinstatement (section 116(1)). The tribunal,
THE STATUTORY PROVISIONS
when considering whether to make an order for reengagement, must take into account similar
considerations the complainants wishes, the
practicability of the employers compliance with the
order, and the justice of making the order if the
complainant caused or contributed to the dismissal
(section 116(3)).
32. The remedies for unfair dismissal are set out in

sections 112 to 117 of the 1996 Act. If the
complainant wishes such an order, the tribunal is
required first to consider whether to make an order for
reinstatement, and if it decides not to make such an order,
then, secondly, to consider whether to make an order for
re-engagement (sections 112(2), (3) and 116(1), (3)). If
neither order is made, the tribunal may make an award of
compensation for unfair dismissal (section 112(4)).
37. At the stage when it is considering whether to

make a reinstatement order, the tribunals judgment
on the practicability of the employers compliance
with the order is only a provisional determination. It
is a prospective assessment of the practicability of
compliance, and not a conclusive determination of
practicability. This follows from the structure of the
statutory scheme, which recognises that the
employer may not comply with the order. In that
event, section 117 provides for an award of
compensation, and also the making of an additional
award of compensation, unless the employer
satisfies the tribunal that it was not practicable to
comply with the order. Practicability of compliance
is thus assessed at two separate stages - a
provisional determination at the first stage and a
conclusive determination, with the burden on the
employer, at the second: Timex Corpn v Thomson
33. An order for reinstatement is defined as an

order that the employer shall treat the complainant
in all respects as if he had not been dismissed
(section 114(1)). An order for re-engagement on the
other hand is an order that the complainant be
engaged in employment comparable to that from
which he was dismissed or other suitable
employment (section 115(1)).
34. The EAT (Simler J) in British Airways plc v
Valencia [2014] IRLR 683, (paras 25 and 26)
contrasted an order for reinstatement which places the
complainant into the same job on the same terms, and
an order for re-engagement, which may involve a
change in the identity of the employer, the nature of
the employment or the terms as to remuneration. I
would not go so far as Simler J where she said (para
25) that a reinstatement order involved the employee
having the same manager. The employer, while treating
[1981] IRLR 522, 523-524 per Browne-Wilkinson J and

Port of London Authority v Payne [1994] ICR 555, 569
per Neill LJ.
the employee in all respects as if he had not been dismissed,

could give the new employee a new line manager to avoid
further conflict. It is the contractual rights, the terms and
conditions of the employment, which must be reinstated
and the rights and privileges (such as seniority and pension
rights) which must be restored to the employee under a
reinstatement order. In my view Mr Napier was right to
challenge the view that a reinstatement order required the
recreation of the precise factual conditions at the point of
(2016) 2 LAW
38. Thus in Ms McBrides case,
the ET, when

considering whether to make the order for reinstatement,
did not need to reach a concluded view on whether Ms
McBride would accept her continued exclusion from the
excluded duties and avoid confrontation with her employer
on that issue. It was sufficient if the ET reasonably
thought that it was likely to be practicable for the employer
to comply with the reinstatement.
60
(2016) 2 LAW
DISCUSSION
F-175
Mr McKenzie and Mr Innes, about the amount of

work carried out by a fingerprint expert which does
not involve signing reports or giving evidence in
court and their assessment that Ms McBride had
made a valuable contribution in the years in which
her duties had been restricted (paras 144 to 146 and
298 to 309 of the reasons). The ETs reasoning in para
374 of its reasons, which I have summarised in para
22 above, also supports this view.
44. Fourthly, the words in para 356 of the reasons, on
which counsel for the SPA relied and which I have set
out and emphasised in para 19 above, were in
parenthesis and spoke of an understanding, which may
suggest that the ET was considering the practical context
39. The principal question, as I have said, is a

question of the interpretation of the ETs judgment.
In my view, the order, which I have set out in para
18 above, if viewed by itself is not open to
criticism, reflecting as it does the words of section
114(1) of the 1996 Act. The question is whether the
context, in particular the ETs reasoning, gives rise
to a different interpretation of the order.
40. I am satisfied that the answer to that question is
no. In reading the ETs reasons, I ask myself
whether the ET was seeking to impose a contractual
limitation on Ms McBride in the reinstatement order,
which removed the excluded duties from her job
description, or was simply recognising a practical
limitation on the scope of her work caused by
circumstances beyond her control and that of her
employer. I am satisfied that it was the latter for the
of the reinstatement rather than an alteration of the terms

of employment. The words in parenthesis confirmed
that the order for reinstatement did not amount to an

order that the employer must alter the status quo by
allowing Ms McBride to resume the excluded duties.
This interpretation is in my view supported by the
ETs statement in para 373 of the reasons, which I
have quoted in para 21 above, that its conclusion that
the employers decision about the excluded duties was
reasonable would move [the] matter forward for both
the claimant and the respondent. Such a statement
would make no sense if the ET thought that its order
was altering the terms of the contract of employment.
45. For completeness, I refer to the suggestion that the
ET in para 298 of its reasons had held that Ms
McBride was unable to continue in her role and that
the employer had to consider alternative employment.
In my view, on a proper reading of that paragraph, in
which the ET examined the actions of the SPSA, it
referred back to the finding that Mr Mulhern had
decided by May 2006 or in any event before
September 2006 that the four fingerprint experts could
not continue in their current restricted roles and that
their employment had to be terminated (paras 27, 49
and 142 of the reasons). That explains why the ET
spoke in that paragraph of the claimant being placed
in a position which was akin to redundancy. The reference
to alternative employment therefore did not relate to
the continuation of their restricted roles and thus does
not militate against the decision on the interpretation
of the ETs decision to which I have come.
46. That is sufficient to determine this appeal in Ms
McBrides favour. But I comment briefly on Mr
Napiers late-arriving submission that the ETs
view on the practicability of compliance with the
following four reasons.

41. First, the ET was aware both of the terms of Ms
McBrides contract of employment and that for
several years previously she had been actively
employed as a fingerprint officer but had not been
asked or allowed to sign reports or give evidence in
court (paras 16 and 298 of its reasons). That was the
status quo to which Ms McBride would have returned
pursuant to a reinstatement order as the employer had to
treat her as if she had not been dismissed (section 114(1)
of the 1996 Act).
42. Secondly, the ET was aware that she wanted to

perform the excluded duties but held that the
SPSAs decision that she could not return to those
duties was reasonable (para 297 of its reasons). As the
decision whether to call a particular expert as a
witness in a criminal trial rested with the Crown
Office and not the SPSA and as the Lord Advocate
had made his views clear (para 7 above), the
conclusion that the SPSA had acted reasonably is
unsurprising.
43. Thirdly, the ET rejected the idea that continuing in a
non-court going role amounted to alternative employment.
The ET criticised Mr Mulherns evidence which
had been calculated to give the impression that Ms
McBride had done little of value in the previous
years. He had failed to investigate that and had
decided from an early date that the four fingerprint
officers would not work for the SPSA. The ET
accepted the evidence of Ms McBrides managers,
61
F-176
reinstatement order was perverse because it had the

potential to expose the SPSA to a claim by Ms
McBride that it was in fundamental breach of
contract.
47. The ET addressed the arguments which the
SPSA advanced on the practicability of compliance
between paras 357 and 371 of its reasons. Those
arguments did not include the submission which the
SPA now seeks to advance.
48. There are cases in which it has been held that an
health, a trainer and the Head of Bureau. There

were the findings, which I have mentioned (para 43
above), of the valuable role which Ms McBride
performed although barred from the excluded
duties. There is also the finding (paras 297 and 373 of
the reasons) that the SPSA acted reasonably in deciding
that Ms McBride should not return to the excluded duties.
50. Further, there was no finding in the ETs reasons
that Ms McBride had ever asserted that her exclusion from
the excluded duties amounted to a breach of contract by
her employer. Mr MacNeill in his submissions accepted
employer, who by unilateral action has fundamentally

altered the nature of an employees job, has repudiated the
contract of employment. See, for example, Coleman v
that Ms McBride did not have a contractual right to

sign reports or give evidence, as the provision of work
in the criminal courts was not in the SPAs gift.
S and W Baldwin [1977] IRLR 342, Pedersen v

Camden London Borough Council (Note) [1981]
ICR 674. But the problem for the SPA is that such
decisions depend on the particular facts of the case.
Whether an employee had a reasonable expectation
of being allowed to do certain work which he or she
enjoyed or which maintained or developed workrelated skills are questions to which the answers are
fact-sensitive. These questions were not raised
before the ET. If they had been, the ET could have
applied its mind to them and made findings of fact
which were relevant to their answer. It did not do so
because it was not asked to do so.
49. In any event, it is not clear from the findings
which the ET made that the SPSAs decision to bar
Ms McBride from the excluded duties would
amount to a fundamental alteration of the nature of
Ms McBrides job. I have no doubt that giving expert
51. As I have said (para 37 above), the ETs

determination on practicability was only a provisional
determination. It was aware of friction between Ms
McBride and Mr Mulhern and had formed the view
that its finding that it was reasonable for the SPSA
to maintain the bar on the excluded duties would
assist both parties to move forward. On the findings
of fact which the ET has made, and in particular its
finding on the reasonableness of the bar, a breach of
contract seems a remote possibility.
52. I therefore reject the SPAs fall back argument.
REMEDY
53. There is now no challenge to the further

involvement in this case of the ET which heard Ms
McBrides claim in 2008 and issued its judgment in
2009. The Court was informed that Employment
Judge Lucy Crone remains in office but it was not
known if the lay members of the original ET are
still in service. I therefore propose that the Court
should remit the case to the original tribunal, or to a
tribunal which includes the member or members of
the original tribunal who are still in office, to
consider variation of its order relating to the matters
specified under section 114(2) of the Employment
Rights Act 1996 in view of the time that has passed
since its order was made. I also propose that
counsel be invited to make submissions within 21
days about the order for expenses which this Court
should make.
CONCLUSION
evidence in a criminal court and being cross-examined by

counsel would be a stimulating experience and repeated
exposure to the courts would develop or preserve skills. Ms
McBrides wish to return to the excluded duties is
therefore understandable. But that does not mean that her
exclusion from them is a fundamental alteration of her job.
The ET recorded evidence that much of the work of

the fingerprint office did not involve the excluded
duties. At para 147 of its reasons, the ET recorded
that only 3.6% of cases referred to the fingerprint
service required a joint report to be signed and in
only 0.8% of cases did an expert have to attend
court to give evidence. The ET also recorded its
findings (para 149 of its reasons) that several
fingerprint officers had been excused from
attending, or had never been required to attend,
court, including an officer who suffered from ill
(2016) 2 LAW
54. I would therefore allow the appeal.

*****
62
US TRIES TO BREAK BRICS: RAPE OF BRAZIL BEGINS

F. William Engdahl
Washingtons regime change machinery has
hired by Brazils Senate said in a report released

Monday that suspended President Dilma Rousseff
didnt engage in the creative accounting she was
charged with at her impeachment trial. Under an
for the time being succeeded in removing an important

link in the alliance of large emerging nations by
railroading through a Senate impeachment of the duly
elected President, Dilma Rousseff. On August 31 her
honest system that would have ended the impeachment

then and there. Not in Brazil.
Vice President Michel Temer was sworn in as

President. In his first speech as president, the
cynical Temer called for a government of
national salvation, asking for the trust of the
Brazilian people. He indicated plans to reform,
and has also signaled his intention to overhaul the
pension system and labor laws, and cut public
spending, all themes beloved of Wall Street
banks, of the International Monetary Fund and
their Washington Consensus. Now after less than
In effect, she was impeached for the dramatic

decline in the Brazilian economy, a decline deliberately
pushed along as US credit rating agencies
downgraded Brazilian debt, and international and
mainstream Brazilian media kept the Petrobras
corruption allegations in the spotlight.
Importantly, the Senate did not ban her from
office for 8 years as Washington had hoped, and
she has promised an electoral return. The
Washington-steered Temer has until end of 2018
to deliver Brazil to Temers foreign masters
before his term legally ends.
Notably, Temer himself was accused of corruption
in the Petrobras state oil company investigations. He
reportedly asked the then-head of the
transportation unit of Petrleo Brasileiro SA in
2012 to arrange illegal campaign contributions to
Temers party which was running a Washingtonbacked campaign to oust Rousseffs Workers
Party. Then this June, only days into his serving
as acting president, two of Temers own chosen
ministers,
including
the
Minister
of
Transparency, were forced to resign in response
to allegations that they sought to subvert the
probe into massive graft at Petrobras.
In brief, the removal of Dilma Rousseff and her
three weeks at the job, Temer has unveiled plans for

wholesale privatization of Brazils crown jewels,
starting with oil. The planned Wall Street rape of
Brazil is about to begin.
Its important to keep in mind that elected

President Rousseff was not convicted or even formally
charged with any concrete act of corruption, even
though the pro-oligarchy mainstream Brazil
media, led by OGlobo Group of the billionaire
Roberto Irineu Marinho, ran a media defamation
campaign creating the basis to railroad Rousseff into
formal impeachment before the Senate. The shift took
place after the opposition PMDB party of Temer

on March 29 broke their coalition with Rousseffs
Workers Party, as accusations of Petrobras-linked
corruption were made against Rousseff and former
president Luiz Incio Lula da Silva.
On August 31, 61 Senators voted to remove

her while 20 voted against removal. The formal
charge was manipulation of the state budget
before the 2014 elections to hide the size of the
deficit. She vehemently denies the charge. Indeed, the
Workers Party after 13 years in Brazils leadership was

a new form of Color Revolution from Washington, one
we might call a judicial coup by corrupt judges and
congressmen. Of the 594 members of the Congress, as
the Toronto Globe and Mail reported, 318 are
under investigation or face charges while their target,
President Rousseff, herself faces no allegation of
financial impropriety.
Senate issued its own expert report that concluded there

was no indication of direct or indirect action by
Dilma in any illegal budgetary maneuvers. According
to the Associated Press, Independent auditors
The day after the first Lower House

impeachment vote in April, a leading member of
Temers PSDP party, Senator Aloysio Nunes,
Courtesy: F. William Engdahl and Paul Craig Roberts at

www.paulcraigroberts.org; 28 September 2016; emphases
in bold ours - IMS.
63
64
US to break BRICS: Rape of Brazil Begins (F.W. Engdahl)
went to Washington, in a mission organized by

former Bill Clinton has repeatedly advocated
that Brazil once again move closer to an alliance
with the US and UK. Madeline Albright, a
Director of the leading US think-tank, Council on
Foreign Relations, is also chair of the prime US
Government Color Revolution NGO, the
National Democratic Institute (NDI). A key
player from the side of Washington, Rousseffs de
facto political executioner, was, once again, Vice
President Joe Biden, the Dick Cheney dirty
operator-in-chief in the Obama Administration.
as President, Lula oversaw signing of a deal

between the Brazilian-Spanish energy company
Repsol and Chinas state-owned Sinopec.
Sinopec formed a joint venture, Repsol Sinopec
Brasil, investing more than $7.1 billion towards
Repsol Brazil. Already in 2005 Lula had
approved formation of Sinopec International
Petroleum Service of Brazil Ltd as part of a new
strategic alliance between China and Brazil.
Bidens task was to sound out Lulas
successor, Rousseff, about reversing that
exclusion of US major oil companies in favor of
the Chinese. Biden also met with leading energy
companies in Brazil including Petrobras.
BIDENS FATEFUL BRAZIL TRIP
In May, 2013, US Vice President Joe Biden

made a fateful visit to Brazil to meet with
President Rousseff. In January 2011 Rousseff had
succeeded her Workers Party mentor, Luis
Inacio Lula da Silva [Lula] who constitutionally
was limited to two consecutive terms. Biden went
to Brazil to discuss oil with the new President.
Rousseff refused to reverse the 2009 oil law in a way

that would be suitable to Biden, Washington and US oil
majors. Days after Bidens visit came the
Snowden NSA revelations that the US had also
spied on Rousseff and top officials of Petrobras. She
was livid and denounced the Obama Administration
that September before the UN General Assembly for
violating international law. She cancelled a planned
Washington visit in protest. After that, US-Brazil
relations took a dive. After his May 2013 talks with
Rousseff, Biden clearly gave her the kiss of death.
Relations between Lula and Washington had chilled as

Lula backed Iran against US sanctions and came
economically closer to China.
In late 2007 Petrobras had discovered what

was estimated to be a mammoth new basin of highquality oil on the Brazilian Continental Shelf offshore in
the Santos Basin. In total the Brazil Continental
Shelf could contain over 100 billion barrels of oil,
transforming the country into a major world oil
and gas power, something Exxon and Chevron, the
US oil giants wanted to control. In 2009, according to
Wikileaks, the US Consulate in Rio wrote that
Exxon and Chevron were trying in vain to alter a
2009 law advanced by Rousseffs mentor and
predecessor in her Brazilian Workers Party,
President Luis Inacio Lula da Silva, which made
the state-owned Petrobras chief operator of all
offshore oil blocs. Washington and the US oil giants
Before Bidens May 2013 visit Dilma Rousseff

had 70% of popularity rating. Less than two weeks
after Biden left Brazil, nationwide protests by a
very well-organized group called Movimento
Passe Livre, over a nominal 10 cent bus fare
increase, brought the country virtually to a halt
and turned very violent the hallmark of typical
Color Revolution or Twitter social media
destabilizations that seem to follow Biden wherever he
makes a presence. Within weeks Rousseffs
popularity plummeted to 30%. Washington had
clearly sent a signal that Rousseff had to change course
or face serious problems. The Washington regime
change machine went into full action to
remove Rousseff, a key backer of the BRICS New
Development Bank and of an independent national
development strategy for Brazil.
were not at all pleased at losing control over potentially

the largest new world oil discovery in decades. Lula had
not only pushed ExxonMobil and Chevron out of the
controlling position in favor of the state-owned
Petrobras, but he also opened Brazilian oil exploration
to the Chinese, since 2009 a core member of the BRICS
developing nations with Brazil, Russia, India and South
Africa. In December, 2010 in one of his last acts
(2016) 2 LAW
SELLING THE CROWN JEWELS
The man who has now manipulated himself

into the Presidency, the corrupt Michel Temer,
worked as an informer for Washington the entire time.
64
(2016) 2 LAW
US to break BRICS: Rape of Brazil Begins (F.W. Engdahl)
65
companies along with chunks of the state Eletrobrs

power company. Temer plans to get as much as $24
Wikileaks revealed that Temer was an

informant to US intelligence since at least 2006
Washingtons man in Brazil, Temer, has lost
no time appeasing his patrons in Wall Street.
Even as acting President this May, Temer named
Henrique Meirelles as Minister of Finance and
Social Security. Meirelles, a Harvard-educated
former President of the Brazilian central bank,
was President of BankBoston in the USA until
1999, and was with that bank in 1985 when it was
found guilty of failing to report $1.2 billion in
illegal cash transfers with Swiss banks. Meirelles is
billion from the selloff. Fully $11 billion of the

total are to come from sale of key oil and gas
state holdings. Of course, when state assets such
as huge oil and gas resources are sold off to
foreign interests in what will clearly be a distress
sale, it is a one-off deal. State oil and gas or electric
power projects generate a continuing revenue stream
many times any one-off privatization gains. Brazils
economy is the ultimate loser in such privatization. Wall
Street banks and multinationals are the winner.
On September 19-21, according to the USBrazil Business Council website, the Brazilian
governments key ministers for infrastructure
including Minister Moreira Franco, Minister
Fernando Bezerra Coelho Filho, et al, will be in
New York to meet with Wall Street infrastructure
investors. This is Washingtons way, the way of the
Wall Street Gods of Money First, destroy any
now overseeing the planned selloff of Brazils crown

jewels to international investors, a move that is
intended to gravely undercut the power of the state in
the economy. Another of Temers key economic
advisers is Paulo Leme, former IMF economist

and now Goldman Sachs Managing Director of
Emerging Markets Research. Wall Street is in the
middle of the Temer-led economic rape of Brazil.
On September 13, Temers government unveiled a
massive privatization program with the cynically
misleading comment, It is clear the public sector
cannot move forward alone on these projects. We
are counting on the private sector. Temer
unveiled plans that would complete the countrys
largest privatization in decades. the process is to
be completed by end of 2018, just before Temers
term must end. The influential US-Brazil
Business Council detailed the privatization list on
its website. The US-Brazil Business Council was
national leadership intent on genuine national

development such as Dilma Rousseff. Replace them with
a vassal regime willing to do anything for money,
including selling the crown jewels of their own

nation as people like Anatoli Chubais did in
Russia in the 1990s under Yeltsin Washington
for now has broken one of the BRICS that ultimately
threaten her global hegemony. It is not likely to bring
any lasting success if recent history is any guide.
founded forty years ago by Citigroup, Monsanto, CocaCola, Dow Chemicals and other US multinationals.
Tenders for the first round of concessions will be

issued before the end of this year. They will
include privatization of four airports and two port
terminals, all auctioned in the first quarter of 2017.
Other concessions include five highways, one rail
line, bidding on small oil blocks and a later round
for large, mainly offshore, oil development
blocks. As well the government will sell selected
assets currently controlled by its Minerals
Research Department plus six electric power
distributors and three water treatment facilities.
The heart of his planned privatization are, not
[F. William Engdahl is strategic risk consultant and

lecturer, with a degree in politics from Princeton
University; a best-selling author on oil and geopolitics,
exclusively for the online magazine New Eastern
Outlook.]
surprisingly, Joe Bidens coveted state oil and gas
*****
Dilma Rousseff
delivering her farewell address in the Alvorada Palace after
being removed from office by the Senate, 31 August 2016.
65
CAN RUSSIA LEARN FROM BRAZILS FATE?

Paul Craig Roberts & Michael Hudson
regardless of whether it is made available by the

central bank or by foreign creditors. As long as the
William Engdahl recently explained how

Washington used the corrupt Brazilian elite, which
answers to Washington, to remove the duly elected
President of Brazil, Dilma Rousseff, for representing the
Brazilian people rather than the interests of
Washington. Unable to see through the propaganda
money, whatever its source, is used productively, the

money is not inflationary.
There is a huge difference between the money created by

the central bank and the money created by foreign creditors.
Money lent by foreign banks in the form or US dollars or
euros must be repaid with interest in the foreign exchange in
which the money was lent. Money created by the central
bank to finance public infrastructure projects does not have to
be repaid at all, much less with interest and in foreign
exchange earned by exports. Funds acquired from
borrowing abroad bring many risks. The money can be
of unproven charges, Brazilians acquiesced in the

removal of their protector, thereby providing the
world another example of the impotence of
democracy. http://www.informationclearinghouse.
info/article45561.htm.
Everyone should read it; he reports that part of
the attack on Rousseff stemmed from Brazils economic
problems deliberately created by US credit rating agencies
as part of Washingtons attack to down grade Brazilian
debt, which set off an attack on the Brazilian
pulled out, collapsing a freely traded ruble. The

interest that must be paid is a drain on Russias
foreign currency reserves. Foreign borrowing also brings a
foreign exchange risk, which rises with economic sanctions. If
the ruble drops in value or is driven down with an
orchestrated attack, the ruble cost of the foreign loan
can rise dramatically. None of these risks and costs are
present when the central bank is the source of money. The
appropriate use of the Russian central bank is to create
the money with which to finance public projects and
to serve as lender of last resort to private Russian
companies unable to obtain funding elsewhere. This
currency, the cruziero.

Brazils financial openness made Brazil an easy
target to attack. One might hope that Vladimir Putin
would take note of the cost of economic openness.
Putin is a careful and thoughtful leader of Russia, but he
is not an economist. He has confidence in neoliberal
Elvira Nabiulina, Washingtons choice to head the
Russian central bank. Nabiulina is unfamiliar with
Modern Monetary Theory, and her commitment to
use of the central bank insulates the Russian economy from

orchestrated destabilization.
economic openness leaves the Russian economy as

exposed as Brazils to Washington destabilization.
It is unfortunate for Russia that Nabiulina and prime

minister Dmitry Medvedev believe that Russian debt
financed by hostile foreigners is preferable to money
created by Russias own central bank. Glazyev, alone
Nabiuina believes that the assault on the ruble is

due to impersonal global market forces, not to
Washingtons financial clout.
Nabiulina, an indoctrinated and propagandized
neoliberal, is essentially a servant of Washington, not
that she is aware of her role as useful idiot. She
delights in the applause she receives from the
Washington Consensus for leaving the Russian
economy open to Washingtons manipulation. Being
among Putins advisers, understands this. [Targeting

him] the Atlanticist Integrationists hope to
integrate Russia with the West regardless of the
costs to Russia. These Russian America Worshipers
are Russias greatest problem.
For Washington, neoliberal austerity is for
export only to countries that Washington intends
to turn into dependent financial colonies. There is
a neoliberal, she does not understand that Russias central

bank can create at zero cost the money with which to
finance productive projects in Russia. Instead, she
thinks that the money entering the economy from the
central bank is inflationary, but the money entering the
economy from foreign sources is not. Money is money
no point whatsoever to borrowing foreign currencies as

backing for domestically created rubles. Regardless of
whether Russia borrows abroad, the central bank must
create rubles with which to finance the projects. So there
is no point to the foreign borrowing.
A Russian government that cannot understand this is in
deep trouble.
Courtesy: Paul Craig Roberts and Michael Hudson at

www.paulcraigroberts.org; 28 September 2016; slightly
edited; emphases in bold ours - IMS.
*****
66
BRING BACK THE COLD WAR!

Paul Craig Roberts
Pundits have declared a New Cold War. If

only! The Cold War was a time when leaders focused
on reducing tensions between nuclear powers. What we
have today is much more dangerous: Washingtons
stream from the mouth of the Democratic

presidential candidate, Hillary Clinton, who has
called the president of Russia the new Hitler and
threatened Russia with military force. Insouciant
Americans are capable of electing this warmonger who
would bring Armageddon upon the earth.
reckless and irresponsible aggression toward the other

major nuclear powers, Russia and China.
Yesterday, Israels voice in the US, the New

York Times, added to Hillarys demonization of
the most responsible leader in the world with this
editorial: Vladimir Putins Outlaw State. This
irresponsible and propagandistic editorial, no
doubt written by the neoconservatives, blames all
the troubles in Ukraine and Syria on Putin. The
NYT presstitutes know that they have no case, so
they drag in the US-orchestrated false report on
MH-17 recently released by Washingtons
Netherlands vassal.
This report is so absurd as to cast doubt on
During my lifetime American presidents

worked to defuse tensions with Russia. President
John F. Kennedy worked with Khrushchev to
defuse the Cuban Missile Crisis. President
Richard Nixon negotiated SALT I and the antiballistic missile treaty, and Nixon opened to
Communist China. President Carter negotiated
SALT II. Reagan worked with Soviet leader
Gorbachev and ended the Cold War. The Berlin
Wall came down. Gorbachev was promised that in
exchange for the Soviet Unions agreement to the
reunification of Germany, NATO would not move one
inch to the East.
Peace
was
at
hand.
whether intelligence exists anywhere in the Western

world. Russia and the now independent Russian
And
then the
neoconservatives, rehabilitated by the Israeli influence
in the American press, went to work to destroy the
peace that Reagan and Gorbachev had achieved. It was
a short-lasting peace. Peace is costly to the profits of the
military/security complex. Washingtons gigantic
provinces that have separated from Ukraine have

no interest whatsoever in shooting down a
Malaysian airliner. But despite this fact, Russia,
according to the orchesrated report, sent a
surface-to-air missile, useful only at high altitude,
an altitude far higher than the Ukrainian planes
fly that are attacking Russians in the separated
republics, to the rebels so that the rebels
could shoot down a Malaysian airliner. Then the
missile system was sent back to Russia.
How insouciant does a person have to be to
believe this propaganda from the New York
Times? Does the New York Times write this nonsense
military and security interests are far more

powerful than the peace lobby. Since the advent
of the criminal Clinton regime, every American
president has worked overtime to raise tensions
with Russia and China.
China is confronted with the crazed and criminal
Obama regimes declaration of the pivot to Asia and
the prospect of the US Navy controlling the sea lanes
that provision China. Russia is even more
because it is bankrupt and lives on CIA subsidies?
dangerously threatened with US nuclear missile bases

on her border and with US and NATO military
It is obvious that the Malaysian airliner was

destroyed for the purpose of blaming Russia so that
Washington could force Europe to cooperate in
applying illegal sanctions on Russia in an attempt to
destabilize Russia, a country that placed itself in the
bases stretching from the Baltics to the Black

Sea. Russia is also threatened with endless
provocations and with demonization that is clearly
intended to prepare Western peoples for war against
the Russian threat. Extreme and hostile words
way of Washingtons determination to destabilize

Syria and Iran.
In a recent speech, the mindless cipher, who in
his role as US Secretary of Defense serves as a
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org;

dt. 30-09-2016; duly edited; emphases in bold ours - IMS.
67
68
Bring Back the Cold War! (Paul Craig Roberts)
front man for the armaments industry, declared the
Be Calculated, and It May Be Working.

According to the NYT report, Russia was not
bombing ISIS. Russia was destroying hospitals
and schools, choking off basic supplies, and
killing aid workers and hundereds of civilians.
The NYT asks: What could possibly motivate
such brutality? and answers: Russia is
massacring Aleppos civilians as part of a
calculated strategy designed to pressure
[moderates] to ally themselves with extremists,
thereby discrediting the forces that Washington
has sent to overthrow Syria and to reduce the
country to chaos. When Americas Newspaper of
one trillion dollars that Washigton is going to spend of

Americans money for nuclear force renewal is so we
can get up in the morning to go to school, to go

to work, to live our lives, to dream our dreams
and to give our children a better future. But
Russias response to this buildup in Washingtons
strategic nuclear weapons is, according to Defense
Secretary Aston B. Carter, saber rattling that
raises serious questions about Russias leaders
commitment to strategic stability. Do you get the
picture? Or are you an insouciant American?
Washingtons buildup is only so that we can get

up in the morning and go to school and work, but
Russias buildup in response to Washingtons
buildup upsets strategic stability.
What the Pentagon chief means is that Russia is
Record is nothing but a propaganda ministry, what is

America?
Pundits keep explaining that Washingtons 15

year old wars in the Middle East are about
controlling the routing of energy pipelines. Little
doubt this is a factor as it brings on board
powerful American energy and financial interests.
But this is not the motive for the wars.
supposed to sit there and let Washigton gain the upper

hand so Washington can maintain strategic stability
by dictating to Russia. By not letting Washington
prevail, Russia is upsetting strategic stability.

US Secretary of State John Kerry, who has
been broken and tamed by the neoconservatives,
recently displayed the same point of view with
his ultimatum to Russian Foreign Minister
Sergey Lavrov. In effect, Kerry told Lavrov that
Russia must stop helping Syria resist the jihadist
forces and allow the US-supported ISIS to regain
the initiative and reduce Syria to the chaos in
which Washington left Libya and Iraq.
Otherwise, Kerry said that the agreement to
cooperate is off. There can be no cooperation between
Washington, or the neoconservatives who control the

US government, intend to destabilize the Russian
Federation, the former Soviet Central Asian countries,
and Chinas Muslim province by adding Syria and then
Iran to the chaos that Washington has created in Iraq
and Libya. If Washington succeeds in destroying
Syria as it succeeded in destroying Libya and

Iraq, Iran becomes the last buffer for Russia. If
Washington then knocks off Iran, Russia is set up
for destabilization by jihadists operating in
Muslim regions of the Russian Federation.
This is clear as day. Putin understands this. But
the US and Russia over Syria, because the two

governments goals are entirely different. Russia wants
to defeat ISIS, and the US wants to use ISIS to overthrow
Assad. This should be clear to the Russians. Yet they
still enter into agreements that Washington has no
intention of keeping. Washington breaks the agreements
and blames Russia, thus creating more opportunities to
paint Russia as untrustworthy. Without Russias
Russia, which existed under Washingtons domination

during the Yeltsin years, has been left threatened by
Washingtons Fifth Columns in Russia. There are a
large number of foreign-financed NGOs in Russia

that Putin finally realized were Washingtons
agents. These Washington operatives have been
made to register as foreign-financed, but they are
still functioning. Russia is also betrayed by a section
cooperation in setting themselves up for blame,

Russias portrait would not be so black.
On September 28, 2016, the New York Times
gave us a good example of how Washingtons
propaganda system works. The headline set the
stage: Russias Brutal Bombing of Aleppo May
(2016) 2 LAW
of its elite who are allied economically, politically, and

emotionally with Washington. I have termed these
Russians America Worshipers. Their over-riding
cause is to have Russia integrated with the West,

which means to be a vassal of Washington.
68
(2016) 2 LAW
69
the joint report says that Moscow could cooperate
Washingtons money even seems to have

found its way into Russian think tanks and
academic institutions. According to this report
(https://sputniknews.com/world/20160929/104583874
4/russia-united-states-asia-pacific-region.html), two
think tanks, one Russian one American, possibly
funded by Washingtons money, have concluded
that US, Russia Have far more common
interests than differences in Asia-Pacific. This
academic report is a direct assault on the
Russian/Chinese alliance. It makes one wonder
whether the report was funded by the CIA. The
Russian media fall for the common interest
propaganda, because they desire to be included in
the West. Like Russian academics, the Russian
media know English, not Chinese. Russias
history since Peter the Great is with the West.
However, these America Worshipping Russians cannot
with Washington in confidence-building measures to

resolve territorial disputes in the Asia-Pacific region.
What this means is that Russia should help Washington
pressure China to give up its territorial claims. One
cannot but wonder if the Moscow-based Institute of
World Economy and International Relations is a CIA
front. If not, the CIA is getting a free ride.
The foreign policy of the United States rests entirely

on propagandistic lies. The presstitute media, a Ministry
of Propaganda, establishes an orchestrated reality by
treating lies as fact. News organizations around the
world, accustomed to Washingtons lead, echo
the lies as if they are facts. Thus Washingtons lies
such as Saddam Husseins weapons of mass destruction,
Iranian nukes, Assads use of chemical weapons,
Russian invasions become the reality.
Russias very capable spokeswoman, Maria
Zakharova, understands that Washington uses the
Western media to control explanations by shaping
public opinion. She terms it a reality show.
However, Zakharova thinks the problem is that
Washington misuses international relations and
international platforms for addressing internal
issues. http://www.informationclearinghouse.info/
article45564.htm. The US presstitutes are disreputable.
This morning NPR presented us with a report on
understand that to be part of the West means being

Washingtons vassal, or if they do understand the
price, they are content with a vassals status like

Germany, Great Britain, France, and the rest of
the European puppet states.
To be a vassal is not an unusual choice in history.
For example, many peoples chose to be Romes
vassals, so those elements in Russia who desire to
be Washingtons vassal have precedents for their
decision. To reduce Russias status to Washingtons
Chinese censorship of the media as if this was something

that never happens in the US. Yet NPR not only
censors the news, but uses disinformation as a weapon
in behalf of Washington and Israels agendas. do not
forget German newspaper editor Udo Ulfkotte, who
admits he planted stories for the CIA in Frankfurter
Allgemeine Zeitnung and says that there is no significant
European journalist who doesnt do the same thing.
vassal, we have Russian-US coperation between the

Moscow-based Institute of World Economy and
International Relations and the US-based International
Institute for Strategic Studies. These two coconspirators against Russian sovereignty are working to
destroy Russias strategic alliance with China and to
create a US-Russian Pacific Alliance in its place. One
The situation is far more serious than Zakharova

realizes. Russians seem unable to get their minds
of the benefits, the joint report, is maintaining

freedom of navigation and maritime security.
Freedom of navigation is Washingtons term
for controlling the sea lanes that supply China. So now
we have a Russian institute supporting
Washingtons plans to cut off resource flow into
China. This idiocy on the part of the Moscowbased Institute is unlikely to reassure China
about its alliance with Russia. If the alliance is
broken, Washington can more easily deal with the
two constraints on its unilateralism. Additionally,
around the fact that the neoconservatives are

serious about imposing Washingtons hegemony
on the rest of the world. The neoconservative
doctrine declares that it is the principal goal of US
foreign policy to prevent the rise of any country that
would have sufficient power to serve as a check on
American unilateralism. This doctrine puts Russia
and China in Washingtons crosshairs. If the
Russian and Chinese governments do not yet understand
this, they are not long for this world.
69
70
(2016) 2 LAW
The neoconservative doctrine fits perfectly with the

material interests of the US military/security complex.
The US armaments and spy industries have had
70 years to entrench themselves with a huge
claim on the US budget. This politically powerful
President Eisenhowers last address warning

that our liberties were equally at stake from the
military/security complex as from the Soviet Threat did
not last 24 hours. The military/security complex
buried Eisenhowers warning with extraordinary
hype of the Soviet Threat. In truth, there was no
interest group has no intention of letting go of its hold

on US resources. As long ago as 1961, President
Dwight D. Eisenhower warned that the Cold War
confronted Americans with a new internal danger as
large as the external Soviet threat:
Soviet threat. Stalin had buffered Russia from the West

with his control of Eastern Europe, just as Washington
controlled Western Europe. Stalin had eliminated
Trotsky and his supporters who stood for world

revolution. Stalin declared socialism in one
country. Stalin terminated international communism.
But the American military/security complex had
much money to gain from the Amerian taxpayers
in order to protect America from International
Communism. So the fact that there was no effort on
Our military organization today bears little

relation to that known by any of my
predecessors in peacetime, or indeed by the
fighting men of World War II or Korea.
Until the latest of our world conflicts, the
United States had no armaments industry.
American makers of plowshares could, with
time and as required, make swords as well. But
now we can no longer risk emergency
improvisation of national defense; we have
been compelled to create a permanent armaments
industry of vast proportions. Added to this, three
and a half million men and women are directly
engaged in the defense establishment. We
the part of the Soviet Union to subvert the world was

ignored. Instead, every national liberation movement
was declared by the US military/ industrial complex to
be a falling domino of the Communist takeover.
Ho Chi Minh begged Washington for help against
the French colonialists in Vietnam. Washington told him
to go to hell. It was Washington that sent Ho Cho
Minh to seek communist support. The long

Vietnam war went on for years. It enriched the
military/security complex and officers pensions. But it
was otherwise entirely pointless. There were no
dominoes to fall. Vietnam won the war but is open to
American influence and commerce. Because of the
military/security complex more than 50,000 Americans
died in the war and many thousands more suffered
physical and psychological wounds. Millions of
Vietnamese suffered death, maiming, birth defects and
illnesses associated with Washingtons use of Agent
Orange. The entire war was totally pointless. It achieved
nothing but destruction of innocents.
annually spend on military security more than the net

income of all United States corporations.
This
conjunction of an immense military

establishment and a large arms industry is new in the
American experience. The total influence economic,
political, even spiritual is felt in every city, every
State house, every office of the Federal government.
We recognize the imperative need for this

development. Yet we must not fail to comprehend
its grave implications. Our toil, resources and
livelihood are all involved; so is the very structure of
our society.
This is Washingtons preferred way. The corrupt

capitalism that rules in America has no interest in
life, only in profit. Profit is all that counts. If entire
countries are destroyed and left in ruins, all the
better for American armaments industries. Yes,
please, a new COLD WAR. We need one desperately,
In the councils of government, we must guard

against the acquisition of unwarranted influence,
whether sought or unsought, by the military industrial
complex. The potential for the disastrous rise of
misplaced power exists and will persist.
We must never let the weight of this combination
endanger our liberties or democratic processes. We
should take nothing for granted. Only an alert and
a conflict responsibly managed in place of the reckless,

insane drive for world hegemony emanating from the
crazed, evil criminals in Washington who are driving the
world to Armageddon.
knowledgeable citizenry can compel the proper

meshing of the huge industrial and military machinery
of defense with our peaceful methods and goals, so that
security and liberty may prosper together.
*****
70
THE UNKNOWN LIFE OF JESUS CHRIST

Nicolas Notovitch
EPITOME
and lost its importance, owing to local laws, as

well as to the laws of nature, which do not hasten
physical development to the same degree as in
warmer countries.
His royal origin, his rare intelligence, and the
extensive studies to which he had applied
himself, caused him to be looked upon as an
excellent suitor, and the most noble and rich
sought him as a son-in-law. So the Israelites of
our days seek the honor of marrying their
daughters to the son of a rabbi or a learned man.
But the studious youth, seemingly detached from all
Faithful to their traditions of devotion and

respect for the race of their kings, the Hebrews,
on hearing of this, flocked to see the child and
congratulate the happy father. It is evident that
Herod did not long remain in ignorance of what had
taken place; and he feared that when the child had
grown to manhood, he might take advantage of his
popularity to regain the throne of his ancestors. He,
therefore, sought the child, whom the Israelites

endeavored to shield from the anger of the king;
the latter then ordered the abominable massacre of
children, hoping that Jesus might perish in this vast
human hecatomb. But the family of Joseph, having
things corporal and devoured by a thirst for knowledge,

stealthily left his father's house and fled to India with a
departing caravan.
obtained information of the terrible execution

contemplated by Herod, fled into Egypt.
Some time later the family returned to its
native land. The child had grown during these
journeys in which his life had been more than
once exposed. Then as now, the Oriental
Israelites commenced to instruct their children at
the age of five or six years. Forced to remain in
concealment, the parents never allowed their son
to leave their roof, and the latter no doubt spent
his time in studying the sacred writings, so that
on his return to Judea, he was far in advance of
the boys of his own age, which greatly astonished
the learned men. He was then in his thirteenth year,
It is to be supposed that Jesus Christ chose

India, first, because Egypt made part of the
Roman possessions at that period, and then
because an active trade with India had spread
marvelous reports in regard to the majestic
character and inconceivable riches of art and
science in that wonderful country, where the
aspirations of civilized nations still tend in our
own age.
Here the Evangelists again lose the thread of
the terrestrial life of Jesus. St. Luke says: He
was in the desert till the day of his shewing unto
Israel, which conclusively proves that no one
knew where the young man had gone, to so
suddenly reappear sixteen years later.
Once in India, the country of marvels, Jesus
began by frequenting the temples of the Djainites.
There still exists in the peninsula of
Hindoostan a sect which bears the name of
Djainism; it forms a link, as it were, between
Buddhism and Brahmanism, and preaches the
destruction of all other beliefs, which they declare
to be steeped in error. It dates back to the seventh
century before Christ, and its name is derived
from the word "djaine" (conquering), which it
assumes as a symbol of its triumph over its rivals.
the age at which, according to the Jewish law, a young

man attains his majority and has the right to marry, as
well as to fulfill his religious duties on an equal footing
with adults.
There still exists an ancient religious custom among

the Israelites which fixes the majority of a man at the
age of thirteen, when the youth enters society and
enjoys the full privileges of his elders. His
marriage at this age is considered absolutely legal and
indispensable, even, in warm countries. In Europe,
however, this custom has fallen into desuetude
Continued from Law Animated World, 15 September 2016

issue; emphases in bold ours - IMS.
71
72
The Unknown Life of Jesus Christ (Nicolas Notovitch)
Amazed at the young man's wonderful

intellect, the Djainites begged him to remain in
their midst; but Jesus left them to settle at
Juggernaut, one of the principal cities of the
Brahmans, and enjoying great religious
importance at the time of Christ, where he
devoted himself to the study of treatises on
religion, philosophy, etc. A cherished tradition
claims that the ashes of the illustrious Brahman
Krichna are preserved here in the hollow of a tree
near a magnificent temple visited by thousands
every year. Krichna is supposed to have lived
1580 before Christ, and it was he who gathered
and arranged the Vedas, dividing the work into
four books: Richt, Jagour, Saman, and Artafan.
This celebrated Brahman, who in recognition of
this work received the name of Viassa (he who
has gathered and divided the Vedas), also
compiled the Vedantha and eighteen Pouranas,
composed of four hundred thousand strophes.
A library, rich in Sanscrit books and precious
religious manuscripts, is also found at Juggernaut.
Jesus spent six years at this place, studying the
language of the country and the Sanscrit tongue,
which enabled him to dive deeply into all
religious doctrines, philosophy, medicine, and
mathematics. He found much to condemn in
Brahman laws and customs, and entered into
public debates with the Brahmans, who strove to
convince him of the sacred character of their
established customs. Among other things, Jesus
particularly censured the injustice of humiliating
the laborer, and of not only depriving him of the
benefits to come, but also of contesting his right
to hear religious readings. And Jesus began to
preach to the Soudras, the lowest caste of slaves,
saying that God is one, according to their own
laws, that all that is, exists through him, that all
are equal in his sight, and that the Brahmans had
obscured the great principle of monotheism in
perverting the words of Brahma himself and
insisting to excess on the exterior ceremonies of
the religion.
These are the terms, according to the Brahman
doctrine, in which God speaks of himself to the
(2016) 2 LAW
angels: I have been since all eternity and shall be

eternally. I am the first cause of all that exists in
the East and in the West, in the North and in the
South, above and below, in heaven and in hell. I
am older than all things. I am the Spirit and the
creation of the universe and its creator. I am allmighty, I am the God of gods, the King of kings;
I am Para-Brahma, the great soul of the
universe.
After the world had appeared by the mere wish
of Para-Brahma, God created men, whom he
divided into four classes, according to their color:
white (Brahmans), red (Kshatriyas), yellow
(Vaisyas), and black (Soudras). Brahma drew the
first from his own mouth, and gave them as their
portion the government of the world, the teaching
of the laws to men, and the power to heal and
judge them. The Brahman alone, therefore,
occupy the position of priests, and the preachers,
or commentators of the Vedas only, must adopt
celibacy.
The second caste, the Kshatriyas, came from
the hand of Brahma. These he made warriors,
intrusting them with the mission of defending and
protecting society. The kings, princely rulers,
governors, and troops, belong to this caste, which
enjoys relations of the greatest cordiality with the
Brahmans, because one can not exist without the
other; and the peace of the country depends on
the alliance of the sword and the light, of the
temple of Brahma, and the royal throne.
The Vaisyas, who compose the third caste,
were drawn by Brahma from his own entrails.
They are destined to the plowing of the fields and
the breeding of animals, to the exercise of all
kinds of trades and commerce, that they may
support the Brahmans and Kshatriyas. They are
authorized to enter the temple and listen to the
reading of the Vedas on feast days only, being
obliged to remain at their business affairs on all
other occasions.
The lowest caste, the blacks or Soudras, came
from the feet of Brahma to be the humble
servants and slaves of the three first castes. They
are forbidden to attend the reading of the Vedas;
72
(2016) 2 LAW
and to come in contact with them means

contamination. They are wretched beings, robbed
of all human rights, not daring to even gaze at the
members of the superior castes, or defend
themselves, and, in case of sickness, deprived of
the care of a physician.
Death alone can free them from the
consequences of their life of servitude; but to
obtain this reward they must, during their entire
life, cheerfully and faithfully serve a member of
one of the privileged classes. Then only, after
having performed these functions with excessive
zeal and fidelity in the service of a Brahman or a
Kshatriya, can the Soudra entertain the hope that,
after death, his soul shall be elevated to a superior
caste.
Should a Soudra be found wanting in respect
toward a member of the privileged classes, or
otherwise merit disgrace, he is expelled from his
caste, degraded to the rank of a pariah, and
banished from cities and villages; he becomes an
object of universal contempt, considered as an
abject creature, and permitted to perform only the
basest and most menial labor. The same
punishment may, it is true, be inflicted upon a
member of any other caste; but by dint of
repentance, of fastings and privations, the latter
may in time regain their former rank, while the
wretched Soudra is forever lost if once expelled
from his caste. It is therefore easy to understand
the veneration of the Vaisyas and the Soudras for
Jesus, who, notwithstanding the threats of the
Brahmans, never abandoned them.
In his sermons, Jesus not only inveighed
against the injustice of depriving a man of his
right to be considered as such, while a monkey,
or a piece of marble and metal was worshiped,
but also denounced the main principle of
Brahmanism, its system of gods, its doctrine, and
its trimourti (trinity), the keystone of this religion.
Para-Brahma is represented with three faces on
one single head: This is the trimourti (trinity),
composed of Brahma (the creator), Vischnou (the
preserver), and Siva (the destroyer).
The origin of the trimourti is as follows:
73
In the beginning, Para-Brahma created the

waters and cast upon them the generating seed,
which was transformed into a dazzling egg
reflecting the image of Brahma. Millions of
centuries later, Brahma divided this egg into two
parts, the upper half of which became heaven and
the lower half the earth. This done, Brahma came
down upon this earth in the appearance of a child,
placed himself on a lotus flower, withdrew within
himself and propounded this question: Who
shall watch over the preservation of what I have
created? The answer came from his own mouth
as flame: "I," and Brahma gave this word the
name of Vischnou, which signifies, he who
preserves. Brahma then divided his being into
two halves, one male and the other female, the
active world and the passive world, the union of
which brought forth Siva, the destroyer. The
attributes of the trimourti are: Brahma, the creator
being; Vischnou, the preserving wisdom; Siva, the
destructive wrath of justice. Brahma is the substance
from which all things are made; Vischnou, the

space in which everything lives; and Siva, time
which destroys all things.
Brahma is the face that animates everything;
Vischnou, the water that sustains the strength of
creatures; Siva, the fire that breaks the links that
unite objects. Brahma is the past, Vischnou the
present, and Siva the future. Each part of the
trimourti, moreover, possesses a wife: That of
Brahma is Sarasvati, goddess of wisdom; that of
Vischnou is called Lackmi, goddess of virtue; and Siva
is married to Kali, goddess of death, the universal
destroyer. From this last union was born the wise
god, Ganega [sic - Ganesa], and Indra, chief of

the inferior divinities, the number of which,
including all objects of adoration belonging to the
Hindoos, comes to three hundred millions.
Vischnou came down upon earth eight times,
incarnating himself first in a fish, to save the
sacred books from the deluge, then successively
in a turtle, a dwarf, a wild boar, a lion, later in
Ramawho was a kings son in Krichna, and
finally in Buddha. He will come a ninth time
under the form of a cavalier mounted on a white
horse, to destroy death and sin.
73
74
the Buddhissatwas [Bodhisatwas] who, as a

reward for their works and the privations they
have endured here below, receive eternal
beatitude and enjoy a repose nothing can disturb.
Jesus spent six years among the Buddhists, where
he found the principle of monotheism still in its purity.
Having attained the age of twentysix years he
Jesus denied the existence of all these hierarchal

absurdities of gods which obscured the great principle
of monotheism. Seeing that the people were beginning
to embrace the doctrines of Jesus, whom they had
hoped to gain on their side, and who was now their

adversary, the Brahmans resolved to assassinate him;
but being warned in time by his devoted servants, he
fled and took refuge in the mountains of Nepal.
Buddhism had already taken deep root in this
country at that period. This schism was
remarkable for its moral principles and ideas on
the nature of the divinity, which brought man and
nature, and men among themselves, nearer
together.
The founder of the sect, Cakya-Mouni, was born
fifteen hundred years before Christ at Kapila, the
capital of his father's kingdom, near Nepal in the
Himalayas. He belonged to the Gothamide race
and to the ancient family of Cakyas. He evinced a
strong attachment to religion from childhood,
and, notwithstanding his father's objections and
disapproval, left the palace in which he lived with
all its luxuries. He immediately began to preach
bethought himself of his native country, which labored

under a foreign yoke. He therefore resolved to return
there. While journeying thither he continued to
preach against idolatry, human sacrifices, and religious
errors, exhorting the people to acknowledge and adore
God, the father of all creatures whom he cherishes
equally, the masters as well as the slaves, for they are
all his children, to whom he has given his

beautiful universe as a common inheritance. The
sermons of Jesus often produced a deep
impression upon the nations he visited, where he
braved many dangers instigated by the priests, but was
as often protected by the idolaters, who, only the day
before, had sacrificed their children to the idols.
While crossing Persia, Jesus almost caused an

uprising among the followers of the doctrine of
Zoroaster. Fearing the vengeance of the people,
however, the priests dared not assassinate him, but had
recourse to a ruse instead, and drove him from the
town during the night, hoping he might be devoured
by wild beasts. But Jesus escaped this peril and
arrived safe and sound in the land of Israel.
It must be here remarked that the Orientals, in
the midst of their picturesque wretchedness and
the ocean of depravity in which they have sunk,
under the continued influence of their priests and
preceptors, possess nevertheless a most pronounced
against the Brahmans, meanwhile purifying their

doctrine. He died at Koucinagara [Kushinagara],
surrounded by many of his faithful disciples. His
body was burned, and his ashes distributed among the
cities in which his new doctrine had replaced
Brahmanism.
According to the Buddhist doctrine, the Creator

always remains in a state of absolute inaction which
nothing can disturb, and from which he arouses only at
certain epochs determined by fate, in order to create
terrestrial Buddhas. To this end, the Spirit is
detached from the sovereign Creator and
incarnated in a Buddha, in whom it dwells for
some time on earth, where it creates
buddhissatwas (masters) whose mission it is to
reach the divine word and found new churches of
believers, to whom they shall give laws and for
whom they will institute a new religious order
according to the traditions of Buddhism.
A terrestrial Buddha is, in some sort, a
reflection of the sovereign Creator Buddha, to
whom he again unites himself after the
termination of his existence on earth; so it is with
(2016) 2 LAW
predilection for instruction and readily understand

properly applied explanations. More than once, by
the aid of some simple words of truth, I have

successfully appealed to the conscience of a thief
or an unruly servant. These people, moved by a
sentiment of innate honesty, which the clergy, to
further their own personal ends, endeavor by all
possible means to stifle these people, I repeat,
are very quick to learn the principles of honesty, and
exhibit the greatest contempt for those who have abused
them.
(to be continued)
*****
74
(2016) 2 LAW
Historical inevitability or electoral corruption? [IMS]
75
( Carried from p. 2 )
Reasons for the rebellion: Earlier, it is said, the rebel

leader had established Panchayat courts in five to
six villages around Krishnadevupet and dispensed
justice to the people. The Agency employees had
broken up those courts and detained Sri Raju on the
allegation that he was a non-cooperationist. But
later, after some time, they had released him for
lack of evidence of his guilt. It is said that after his
release, Sri Raju vowed before and declared to the
people of the area that since he was arrested and
detained for 6 weeks in jail without any ground, he
would in future retaliate and would cause a lot of
harm and damage to the government. So some
people are saying that this rebellion could be traced
to that reason alone.
The very next day, two news were reported in

Andhra Patrika about the Rampa Pituri. One that
Srirama Raju wrote a letter to Eluru Zamindar Mote
Gangaraju that in view of the total assets possessed
by him, at the rate of Rs. 1000/- per one lakh, he is

directed to bring a total of Rs. 12,000/- and deliver it at a
certain place on a certain date which he would personally
collect, and that Gangaraju sent that letter to the
concerned DSP, and the Hitakarini paper

published this news with the heading: Is it True?
The other news, certainly a rumor, was that Tuni
Raja who caused the construction of a school in
Tuni expired and in that context Mr Wellington,
Governor of Madras Presidency, was coming to the
Tuni town on 22 October to open the Rajas School
with his own hands; and that Siramaraju, the rebel
leader, who is at large despite the feverish attempts
by the police to arrest him, would also visit Tuni the
same day to conduct negotiations with the Governor
himself. The news items, as publshded in Andhra
Patrika, 16 November 1922, are reproduced below:
The news item about the Governor visiting Tuni
also reported that several houses, especially of the
poorer sections of the people, were demolished to
widen the roads on the occasion, and so instead of
feeling joyous about the visit of the Governor to the
town the people were feeling sad and aggrieved and
also, in the context of the ongoing Noncooperation
Movement, gave a call to the people for keeping a
protest Hartal to greet the Governor just as those
that greeted the Prince of Wales when he visited
India earlier.
*****
75
76
Law Animated World {30 September 2016}
Postal Reg. No. HD/1098/2014-16
BE NOT DEFEATED BY THE RAIN!

- Kenji Miyazawa*
Original
Kenji Miyazawa
Kenji Miyazawa
Poet as Asura
Strong in the rain
SPRING AND ASURA

(mental sketch modified)
From the gray steel of mental images

Akebi vines coil around clouds
Wild rose thickets, humus marshes
Everywhere patterns and patterns of duplicity
(When thicker than the noons wind-instrument music
Amber splinters fall down)
Angers bitterness, blueness

At the bottom of the light in Aprils atmosphere
Spitting, gnashing, coming and going // I am an asura //
(The scene swaying in tears)
Unto the limits of visible smashing clouds

In the limpid sea of the heavens
The winds of Sacred Glass go far and wide
Zypressen one single row of spring
Breathes in ether, black
From the column of their darkened feet
Snowy ridges of Mount Heaven can be glimpsed, however
(Shimmering waves, white polarized light)
True words are not here

Clouds scatter and fly in the sky
Ah, at the bottom of shining April
Gnashing, burning coming and going //I am an asura//
(Chalcedonic clouds flowing

Where does it sing, a bird of spring?)
The Sun Wheel darkening to blue

Asura resonates with the woods
From heavens bowl collapsing in a dazzle
Throngs of black trees extend
Their branches grown thick and sorrowful
All the duplicated scenes when
In the dispirited woods from a treetop
Flashes, darts off, a crow
(The atmosphere clearer and clearer
The hushed cypresses stand in the heavens)
Someone is passing the grass fields gold

One ordinary human form
In a straw coat looking at me, a farmer
Can you really see me?
At the bottom of the blinding ocean atmosphere
(The sorrow deeper and bluer)
Zypressen swaying quietly

A bird again cuts the blue sky
Transliteration
English Translation
ame ni mo makezu
kaze ni mo makezu
yuki ni mo natsu no
atsusa ni mo makenu
jbu na karada wo
mochi
yoku wa naku
kesshite ikarazu
itsu mo shizuka ni
waratte iru
ichi nichi ni genmai
yon g to
miso to sukoshi no
yasai wo tabe
arayuru koto wo
jibun wo kanj ni
irezu ni
yoku mikiki shi
wakari
soshite wasurezu
nohara no matsu no
hayashi no kage no
chiisa na kayabuki
no koya ni ite
higashi ni byki no
kodomo areba
itte kanby shite yari
nishi ni tsukareta
haha areba
itte sono ine no taba
wo oi
minami ni shinis na
hito areba
itte kowagaranakute
mo ii to ii
kita ni kenka ya
sosh ga areba
tsumaranai kara
yamero to ii
hideri no toki wa
namida wo nagashi
samusa no natsu wa
oro-oro aruki
minna ni deku-no-b
to yobare
homerare mo sezu
ku ni mo sarezu
s iu mono ni
watashi wa naritai
not losing to the rain

not losing to the wind
not losing to the snow
nor to summer's heat
with a strong body
not fettered by desire
by no means offending
anyone
always quietly smiling
every day four bowls of
brown rice
miso and some vegetables
to eat
in everything
count yourself last and
put others before you
watching and listening,
and understanding
and never forgetting
in the shade of the woods of
the pines of the fields
being in a little thatched hut
if there is a sick child
to the east
going and nursing over them
if there is a tired mother
to the west
going and shouldering her
sheaf of rice
if there is someone near
death to the south
going and saying
there's no need to be afraid
if there is a quarrel or a
lawsuit to the north
telling them to leave off with
such waste
when there's drought,
shedding tears of sympathy
when the summer's cold,
wandering upset
called a nobody by everyone
without being praised
without being blamed
such a person
I want to become
(True words are not here

Asuras tears fall to the dirt)
Breathing in the sky anew

The lungs shrink, pale white
[Courtesy: Wikipedia]
(May this body be dispersed into particles in the sky)
The treetops of ginkgos flash once again

Zypressen blacker and blacker
Sparks of clouds flow down (April 8, 1922)
[*KENJI MIYAZAWA (27 August 1896 - 21 September 1933),

a Japanese poet and author, also devout Buddhist and social
activist.]
*****
*****
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
and printed at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
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(2016) 2 LAW

RNI No. APENG/2005/18975

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ISSN 2277 8829

A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma

Volume 12: Part 2

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17. The Unknown Life of Jesus

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Hafiz Saeed vowing vengeance

Pak army spokesman denying

HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

talking to officers like Deputy Tahsildar, etc. and

Translated, the above write-up by Aryaprabha

Hayter and Scott Coward, as also some police personnel,

a hairs breadth, from a fire arms hazard and a tiger

Continued from Law Animated World, 31-08-2016 issue;

Most probably Cyril Edward Sweney, Superintendent,

Law Animated World, 30 September 2016

POLITICAL TROUBLE IN INDIA, 1907-1917

consequences the sixtieth would [2] certainly see

is mainly devoted to the period between the two

The object of this book is to give, within the

While sedition and revolution from the

has been necessary occasionally to bring in the

Special importance was naturally attached to the fiftieth

amounts to in each particular case the reader is

It would be impossible to follow the ramifications

while the spirit that prompted the assassination of

of focussing attention on what became at

ANNIVERSARIES OF THE MUTINY

As will appear later in this chapter, there is

conspiracy in Calcutta, Dacca, London, Paris, and San

rising about the time of the fiftieth anniversary was

had been a vague feeling of uneasiness all over

not quite so simple as this general plan would

Continued from Law Animated World, 15 September 2016

These numbers in parantheses are of the original printed

Political Trouble in India : 1907-1917 (J.C. Ker)

their usual forms, while those who do not are unlikely

Before going on to what the conspirators did two

As far as possible, the record is confined to facts

almost unrestricted liberty of the press which existed in

other instances the evidence on which statements

undoubtedly gained them many adherents; it will

any occasion the actual words used are preferred to any

which the strongest suspicion exists, and some

to be involved a selection is made of the persons

which is followed here, by eliminating theories and

here is to let people spell their names in their own way,

which also vary considerably, have been treated on

Political Trouble in India : 1907-1917 (J.C. Ker)

the prestige which they enjoyed, left no stone

end the Province was re-united by Royal command at

SWADESHI, SWARAJ AND BOYCOTT

The anarchist [i.e. revolutionary] movement in

The two main features of the anti-Partition

started before the Partition took place, and has

account of Partition, and of the agitation against