India legal 15 April 2015

NDIA EGAL I L HASHIMPURA: Nobody massacred 42 innocents

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66A: Off with its head!

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JAT RESERVATIONS: Supreme Court strikes again

April 15, 2015

EXCLUSIVE

YES! I AM THE SPECTRUM

RAJA In a scathing expose of the telecom czars, the PMO and investigators, former minister A Raja tells his side of the events that led to his jailing and ongoing trial 26

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MISSING COMPANIES: Will the law catch up?54 54

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www.indialegalonline.com

MASARAT RELEASE: Fueling separatism? 40

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COMING SOON

In India Legal A shocking inside story of how a former high court judge, Justice Imtiyaz Murtaza was found to have resorted to corrupt practices when he was in charge of the High Court Infrastructure Committee.

READ OUR EXPOSE ON: His involvement in a scam running into hundreds of crores of rupees How relatives of judges and contractors were illegally benefited Why a report of a threejudge probe committee comprising Justices AP Sahi, DP Singh and VK Shukla is kept on hold.

Look out for this expose in our coming issues

ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU

NDIA L EGAL I INDIA EGAL What constitutes a corporate favor?

The case of the sacked HT staffer

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Wily Godmen: A trail of murders, rapes, frauds and a hypnotizing spell on followers

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

AAP AND THE LAW ne key characteristic of the Aam Aadmi Party (AAP) when it was founded was inner-party democracy. Its commitment to allow voluble disagreements between leaders over national issues and in-house matters was a powerful demonstration of Arvind Kejriwal’s assertion that the AAP is a party with a difference, that unlike the BJP, Congress and regional groupings, the organization is not a dictatorship. He cited dissent as one of the party’s strengths.

The recent sacking of stalwarts Yogendra Yadav and Prashant Bhushan from the National Executive (NE) raises some interesting legal or quasi-legal issues that merit attention. This editorial is neither to support nor oppose the sacking of two worthy individuals who command national respect and admiration. Parties make it their business to dismiss people who make the high command uncomfortable.

The real issue here is whether a party is legally or morally bound to go by its own constitution and procedures or can they be violated with impunity because they are part of an inner consensus which has nothing to do with the laws made by parliament or under the national constitution. Since political parties are registered by the government, are they bound by statutes or regulations to abide by their bye-laws, just as cooperative housing societies are required to abide by their own rules which can be enforced by the registrar of cooperative societies? It is a grey area.

Interestingly, to test this doctrine, 157 members

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Assuming that the Lokpal finds due process was not followed, is the high command duty-bound to obey the recommendations of the Lokpal?

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April 15, 2015

of the AAP from across 10 countries have petitioned the party’s internal lokpals, Admiral Ramdas and Dr Ilina Sen, seeking redressal of their grievance that Yadav and Bhushan’s expulsion from the PAC lacks alignment with the party constitution. They make the following arguments in this internal document which should make legal pundits ponder: Nowhere in the party constitution does it say that it is wrong to challenge the National Convener. The core ideology of the party, as quoted from the website of AAP is as below: Value #2: Commitment to ‘Swaraj’. Our purpose.

Commitment to ‘Swaraj’ is Putting the core purpose and the organization ahead of everything, including self and personal goals Being clear and decisive at all times with respect to movement towards the purpose Not worrying about precedences and being guided by purpose where there is no precedence Being out of the box or original if that takes us closer to the purpose Not being afraid to commit mistakes Being fearless and unflinching in the face of opposition from any quarter, including powerful opponents, govt machinery, vested interests and so on Being ready to take any role as per organizational needs and requirements Being the sun (source of energy) to the organization and enhancing commitment in others around you through personal role modelling (team work) Owning up the failures personally and crediting the team members when you meet with success.

Taking initiative in suggesting solutions to a problem in your and around your area of activity.

This shows the party allows for multiplicity of voices and nowhere indicates that the intent of a few and the conduct of the National Convener cannot be discussed. Yogendra Yadav and Prashant Bhushan

were apparently following the ideology of the AAP. In fact, this is an ideology Arvind Kejriwal himself lived by.

Perhaps the manner in which the issues came to light could be questioned and suitable decision passed based on evidence but the main point remains—did Yogendra Yadav and Prashant Bhushan have malafide intent towards the party or were they highlighting anomalies that had otherwise gone unaddressed.

The larger consensus at the moment is that they worked in the interest of the core principles of the party.

NE members consulted non-NE members in gross violation of the code of conduct of the NE. The NE did not formally invite the opinion of these people, nor were they invited members to that NE meeting, nor was their opinion heard by all—still they were consulted. It is a matter of deep concern why a select few were consulted for this important decision.

The minutes of NEC meeting of 4th March 2015 have not been placed in public domain till date in spite of appeals by millions of members of AAP. This has violated Article VII Rules for Conduct of Business.

NE members did not find fault with the fact that no investigation report was tabled, nor findings elaborated. If at all an ad-hoc inquiry committee was constituted, no inquiry report is known to be tabled and the proceedings were based on verbal allegations. The party violated international inquiry standards wherein no one had any knowledge of such an inquiry committee being set up, and the Disciplinary Committee and Lokpal (the mandated authorities) were apparently excluded from the process.

The decision against Yadav and Bhushan was made without sound evidence. The NE, in that case, was the judge and jury both, in violation of division of responsibility framework applied globally on inquiries where the inquiry committee submits its report to a higher body for punishment. To quote directly: Were the provisions of Article IV.F.d.viii for settling internal disputes or provisions of xiii, xvi or xvii invoked for the Inquiry Committee? Can an Office Bearer of the Executive Committee be part of the Enquiry Committee according to Article XII.(i)?

The investigation findings and grounds for Manish Sisodia proposing resolution that Yadav and Bhushan be removed, and seconded by Sanjay Singh are unknown. Sisodia is quoted as having proposed in the NE meeting that both of them have lost faith

Is a party legally or morally bound to go by its own constitution and procedures or can they be violated because they are part of an inner consensus? of PAC, the National Convenor and Delhi Unit. What does “lost faith” mean? Is “Losing faith” a valid ground to move a motion for expulsion for two office bearers at the national level? The above is in violation of the AAP code of conduct and does not show transparency. It is in violation of Article VI B & VI.C of the constitution.

The grounds of expulsion from the party are welldefined. Should there be adequate evidence of misconduct against Yadav and Bhushan, voting would not have been necessary and dismissal could have been proposed on evidence.

Why was voting even necessary when there was enough evidence of “lost faith”? It is assumed that there was, in fact, not enough evidence and this was a desperate move towards expulsion without justified cause or real evidence.

The final prayer of the petitioners to the Lokpal states: “We petition before you, as duty-bound members and volunteers within AAP, for inquiry into the conduct of proceedings and resolutions passed in National Executive committee meeting of 4th march 2015, and related prior. We further petition to you to review the findings of the case, enforce corrective steps to ensure due process and justice, and place the entire Disciplinary and Lokpal conduct and judgment in public domain. We petition for upholding of AAP Constitution in letter and spirit of AAP ideology, and further refinement of the constitution in tune with the Core Ideology of AAP.” Assuming that, as the petitioners aver, the Lokpal finds due process was not followed, the principles of natural justice were violated, the charge and the findings of the inquiry remained secret and the whole process was a Star Chamber proceeding, is the high command duty-bound to obey the recommendations of the Lokpal? Probably not. But, as the petitioners conclude: “Should there be laxity, AAP would face global shame in compromising on its own constitutional provisions, ethics and ideology and will pay a price for the actions of a select few.”

editor@indialegalonline.com INDIA LEGAL April 15, 2015

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APRIL 15, 2015

VOLUME. VIII

ISSUE. 15

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Niti Singh Assistant Editor Somi Das Art Director Anthony Lawrence Senior Visualizer Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar Verma

LEAD

26

“One day, 2G will be my strength” Former Telecom Minister A Raja gives his side of the spectrum story, and discloses that a combination of monopolists and ruling politicians victimized him for standing up to them, in an exclusive interview to INDERJIT BADHWAR, RAMESH MENON and VISHWAS KUMAR

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari For advertising & subscription queries sales@indialegalonline.com

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April 15, 2015

SUPREME COURT

Free speech wins the day

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By knocking down the draconian Section 66-A, the apex court stresses that freedom of expression will remain an important cornerstone of our democracy. But SOMI DAS analyzes whether there are laws in place to stop internet bullying

Subjective answers The apex court has struck down reservations for Jats, but in doing so, has ignited a debate on what constitutes backwardness.

MEHA MATHUR reports EXCLUSIVE

Judge’s plea on Good Friday A Supreme Court judge expresses concern over a judges’ conference being held on Good Friday, a national holiday.

RAMESH MENON reports

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LEGAL EYE

Wounds reopened

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With a trial court acquitting all the accused constables in the Hashimpura carnage of 1987, victims stare at a dark future, writes SUTANU GURU STATES

Back to the battle?

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Masarat Bhat’s release has caused ripples in J&K. VISHWAS KUMAR describes what made him the face of Kashmiri rebels

AVIATION

Have money, will fly

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A recent survey of LCC preferences of Indian flyers shows their discerning power in making the right choices.

SHOBHA JOHN analyzes the trends OBITUARY

One man’s mission

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ALSO The slug-fest between the BJP and the Congress takes an ugly turn in the Vyapam Scam in MP.

By Rakesh Dixit...........38 The voting right that the poor enjoy can make arrogant politicians bite the dust.

By Scharada Dubey.....44

RAMESH MENON pays tribute to the departed Singaporean leader, Lee Kuan Yew, who single-mindedly transformed its fortunes HEALTH

Seeds of sorrow

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A spate of suicides by farmers in Vidarbha hasn’t moved the authorities to alleviate the misery of their families, writes AJITH PILLAI CORPORATE

Here today, gone tomorrow

RELIGION

It’s my choice

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Which faith I pursue, is my prerogative. Political parties and fringe outfits have no right to intrude into this sacred space, says BIKRAM VOHRA

There’s a need for prison reforms, where lakhs of prisoners are languishing in wretched conditions and no rehabilitation is possible.

By Swami Vishalanand.................62 The law is unable to control rampant copying of written work, photographs and paintings.

By Deepa Gupta...........71

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SHANTANU GUHA RAY describes how lakhs of investors lose their money as companies vanish without a trace from the market

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Don’t get swayed by its protein value.

DINESH SHARMA exposes the health risks posed by chicken fed on antibiotics

REGULARS

ECONOMY

Platterful of drugs

Quote-Unquote...........................................................................8 Ringside...................................................................................... 9 National Briefs...........................................................................15 Supreme Court..........................................................................18 Courts....................................................................................... 22 International Briefs.....................................................................25 Wordly-wise..............................................................................80 People....................................................................................... 82

Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA

INDIA LEGAL April 15, 2015

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QUOTE-UNQUOTE “We are living in a country with democratic values, where humans should be protected too and not just cows.”

“Since I’m God-gifted I fit well in everything.”

— Cardinal Basilios Cleemis, president of the Catholic Bishop Conference of India, on the attacks on churches and Christians in India, The Indian Express

— Prime Minister Narendra Modi, talking about his sense of style in The Modi Effect: Inside Narendra Modi’s Campaign to Transform India

“India’s image abroad isn’t damaged by documentary films, it’s damaged by photographs of cheating in exams.”

— Former J&K CM Omar Abdullah, on Twitter

“Request you to replace phenyl with Gaunyle.”

—Union Minister Maneka Gandhi, advising ministries to switch over to the surface cleaner made from cow urine, Deccan Chronicle

“It is not like they started consuming beef recently; this has always been part of their daily cuisine. How can I ban it?”

— Goa Chief Minister Laxmikant Parsekar, justifying his decision not to ban beef in the state, The Indian Express

“The World Cup is something that doesn’t really belong to anyone. We definitely took it from someone, so somebody took it from us.”

— Team India captain MS Dhoni, after losing to Australia in the World Cup 2015 semi-final

“The women of south are dark but they are as beautiful as their bodies.... We don’t see it here. They know dance (too).”

—JD(U) Chief Sharad Yadav, in the Rajya Sabha

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April 15, 2015

“Everyone says now that we have won Delhi we will win others as well.

Are we a Napoleon on the victory march?”

— Delhi CM Arvind Kejriwal, at Jindal Nature Care Institute, Bangalore

“A mosque is not a religious place. It is just a building and it can be demolished any time... I got this information from people of Saudi Arabia.”

— BJP leader Subramanian Swamy in Guwahati, The Indian Express

VERDICT “There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.”

—Charles de Montesquieu

INDIA LEGAL April 15, 2015

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Graphic: Amitava Sen

SUPREME COURT/ section 66a

by striking down this draconian section of the information technology act, the apex court has unshackled many online voices and given a new meaning to freedom of speech

By Somi Das

T

HE assault on free speech has been all-pervasive in recent times. From films to beef, the government seemed on a banning spree. Perhaps the last straw was the arrest of a Class XI student under the Juvenile Justice Act for criticizing Uttar Pradesh minister, Azam Khan, on Facebook. Suddenly, India seemed to have become a Ban-ana Republic.

However, thanks to the Supreme Court, India is back to being a democracy that thrives on free speech. After a sustained effort of over two years, a bunch of individuals and groups won a hard-fought battle against the draconian Section 66A of the Information Technology (IT) Act, 2000, as the Supreme Court struck it down saying it was unconstitutional.

This contentious clause wasn’t present in the law when it came into effect in October 2000. With the advent of the cyber boom, the need to have specific laws dealing with cyber crimes, online frauds and those related to e-commerce was felt. That led to the creation of the IT Act, 2000. But in 2009, hasty amendments were made to the Act, including the contentious Section 66A.

Here’s what Section 66A says: “Any person who sends, by means of a computer resource or a communication device — (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will persistently by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

“Governments may come and governments may go but Section 66A goes on forever….Section 66A must be judged on its own merits....”

— Supreme Court judgment

LANDMARK RULING The verdict by the Supreme Court bench of Justices J Chelameswar (left) and Rohinton F Nariman (above) offers insights into freedom of speech

INDIA LEGAL April 15, 2015

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SUPREME COURT/ section 66a

Cracking the Whip

Jadavpur University professor Ambikesh Mahapatra arrested for emailing cartoons of West Bengal Chief Minister Mamata Banerjee on Facebook in 2012.

Shaheen Dhada and Renu Srinivasan arrested in Palghar, in Thane, for an Facebook comment against Mumbai’s shutdown after Bal Thackeray’s death.

Activist Aseem Trivedi (left) held in 2012 for drawing cartoons of parliament and the constitution during the India Against Corruption Movement.

Air India employees Mayank Sharma and KV Rao arrested in Mumbai for allegedly posting offensive comments against politicians on Facebook.

Businessman Ravi Srinivasan charged in 2012 by Puducherry Police for allegedly tweeting against Karti Chidambaram.

Poet and writer Kanwal Bharti (left) arrested for posting a Facebook message criticizing the UP government for suspending IAS officer Durga Shakti Nagpal in August 2013.

A Class XI student arrested for a Facebook post on Azam Khan.

SHOWED THE WAY Shreya Singhal was the first to challenge Section 66(A) in the Supreme Court

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April 15, 2015

The law made it easy to crack down on any online comment deemed annoying or offensive. The first arrest under this section was on October 30, 2012, after a Puducherry-based businessman, Ravi Srinivasan, allegedly called Karti Chidambaram, then finance minister P Chidambaram’s son, “corrupt” in a tweet. Then came the arrest of Shaheen Dhada and Renu Srinivasan for a Facebook post complaining about the shutdown in Mumbai after the death of Bal Thackeray. Srinivasan was arrested for merely liking the post.

This caught the attention of a young law student, Shreya Singhal. Within 10 days, she filed a PIL challenging the constitutionality of Section 66A. Several other petitions by groups like the People’s Union of Civil Liberties (PUCL), Common Cause and Mouthshut.com

were clubbed with Singhal’s petition.

The petitioners had challenged the constitutionality of Section 66A on the grounds of vague terminology. It fails to define what exactly constitutes “offensive”, “inconvenience” or “annoyance”. They also contended that the law was a gross violation of Article 19 (1)a of the constitution that guarantees a citizen freedom of speech and expression. At the same time, the law isn’t consistent with 19(2) of the constitution that deals with eight specific circumstances under which the fundamental rights of a citizen can be suspended. A person’s freedom of speech in the offline world can be suspended only if it affects: (a) sovereignty and integrity of India, (b) the security of the state, (c) friendly relations with foreign states, (d) public order, decency or morality, (e) relation to contempt of court, (f) defamation or (g) incitement to an offence. On the other hand, in cyberspace, under Section 66A, a person’s fundamental rights can be breached merely for offending or annoying someone.

SILENT GOVERNMENT Various governments, too, have played a partisan role over this issue. In 2012, when the UPA government had cracked down on a series of Twitter accounts and other web pages by blocking them, Gujarat chief minister Narendra Modi was the first to raise his voice against such an undemocratic act. As a mark of protest, he changed his Twitter display picture to black and tweeted: “As a common man, I join the protest against crackdown on freedom of speech! Changed my DP. Sabko Samnati De Bhagwan (May God give wisdom to all).” But fast-forward to 2015, and the Modi government seemed no different from the UPA. It showed no inclination in amending or repealing the Act. During the two-month debate on the case, prior to the judgment, additional solicitor general Tushar Mehta argued that “the mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s right by using the internet as a tool to do so. Further vagueness is not a ground to declare a statute unconstitutional.”

Mehta also argued that censorship on the

internet should be more stringent than in the offline world. He said that the internet, unlike newspaper and films, is a technologically manipulative media as videos and photographs can be doctored. He also said that internet’s reach had no geographical boundaries.

Anonymity of cyber miscreants was another concern of the government as was the issue of invasion of privacy.

OUTSTANDING JUDGMENT However, none of these arguments made an impact as can be seen from the judgment delivered by Justices Rohinton Fali Nariman and J Chelameswar. It is an eye-opener in order to get an insight into the degree of freedom of speech guaranteed by our constitution.

It is one of the finest texts on the issue.

Not only does the judgment decimate every point made by the government in defending the constitutionality of Section 66A, it chides it for framing a shoddy and irresponsible law that caused inconvenience and annoyance to many people.

The court says: “The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said section has a chilling effect on the freedom of speech and expression. Also, right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet.”

The apex court also pointed out specific flaws in the Section that fail to make it a deterrent against reigning in rogue online elements who are a threat to communal harmony and national security. One example is the bulk SMSs and MMSs sent after the Kokrajhar riots in Assam to whip up communal violence, leading to exodus of people from the North-East.

The judgment says: “No distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent casual connection with public disorder, security of state etc.

“The section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require

Section 66A wasn’t present in the IT Act in October 2000. But in 2009, hasty amendments were made to the act, including the contentious section. that such message should have a clear tendency to disrupt public order.”

On the government’s assurance that the law would not be used against political dissent and would be only “administered in a reasonable manner”, the court displayed amazing foresight when it pronounced: “Governments may come and governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered.”

GAGGED BY LAW A tweet on Karti Chidambaram (below) led to the arrest of Ravi Srinivasan in 2012

UPHOLDING TWO CLAUSES However, the court did not yield to the petitioners’ demand for declaring null and void two other sections of the Act—Section 69A and Section 79. Section 69A deals with the powers vested on the designated authority appointed by the government to issue directions for blocking public access to any information (read web pages and sites) through any computer resource. And Section 79 deals with the provisions under which intermediaries like Facebook, Google, Twitter would not be liable for third-party information.

However, in the absence of due diligence, they could be punished for holding thirdparty material.

The apex court upheld the constitutionality of both these clauses on the ground that they weren’t vague like Section 66A and there were enough checks and balances to ensure safeguard of the interests of the intermediaries. This served as a huge setback to the activists.

INDIA LEGAL April 15, 2015

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SUPREME COURT/ section 66a

tion which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity, integrity, security or sovereignty for publishing or transmitting obscene material including depicting children in sexually explicit acts in electronic form.

What, however, remained uncovered and came under the ambit of Section 66A was threat to an individual by cyber bullies or cyber stalkers. How does a child safeguard himself against online bullying by classmates or seniors? Or how does a woman protect herself against a cyber stalker?

There was a specific case in 2013 in Jalandhar, where a harrowed Sikh man filed a complaint under Section 66A after being bombarded with racial jokes on WhatsApp despite his constant plea that the jokes hurt him. The complaint led to the immediate arrest of the accused, who got bail only after cooling his heels in jail for two weeks. In the absence of Section 66A, will cyber bullies now have a free run?

DRACONIAN LAW A Class XI student was jailed under Section 66A for comments against UP minister Azam Khan on Facebook

Supreme Court advocate Apar Gupta, who represented PUCL says: “It is a setback. But we have to constantly engage with the law.

Secondly, if a certain provision of the law is constitutional, it does not mean it is desirable.

In a constitutional challenge, the court is only looking at the threshold of the law which permits legislation. It is not looking at its moral desirability.”

TACKLING CYBER BULLIES A thorough reading of the Supreme Court judgment also leaves one with a sense that IT Act 2000, barring its few contentious clauses, is reasonably well-equipped to handle cyber crimes and takes care of concerns relating to online frauds, national security and child pornography. The judgment explains this: Under Section 66B, whoever dishonestly receives any stolen computer resource or communication device is punished with imprisonment.

Under Section 66C, whoever fraudulently or dishonestly makes use of any identification feature of another person is liable to punishment with imprisonment.

Under Section 66D, whoever cheats by personating becomes liable to punishment with imprisonment.

Section 66F again is a narrowly drawn sec-

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April 15, 2015

IPC DETERRANT Gupta allays such fears, saying there are specific provisions in the CrPC that can be invoked to counter such bullying or stalking. He says cyber stalking is squarely covered by the Criminal Amendment Act 2013 passed by parliament in the aftermath of the Nirbhaya gangrape case.

However, cyber expert Pawan Duggal doesn’t have much faith in general sections of the IPC in reigning cyber bullies. He says: “Whatever little deterrence that Section 66A exerted, now stands null and void. While there are general provisions in the IPC, they are not enough to tackle the menace of cyber bullying, the number one problem in Indian schools and colleges today.”

Duggal feels that it is high time the government gave a helping hand and provides effective legal remedies for victims of cyber bullying.

Meanwhile, flaws in existing laws, such as Section 66A, can be used as tools for political vendetta. With the Supreme Court setting a new precedent in interpreting such loose laws, government officials and lawmakers must exercise their mind when deciding what exactly constitutes online and offline freedom of speech before trying to curb it. IL

NATIONAL BRIEFS

Two bills clear RS bottleneck THE MODI government scored a major victory when the Rajya Sabha (RS) passed the Mines and Minerals Bill and Coal Mines Bill with 117 votes in favor and 69 votes against. The BJP cleared a major hurdle for one of its

major planks of economic development. Despite being in the minority in the RS, the BJP broke the opposition unity as the Trinamool Congress, Samajwadi Party, Bahujan Samaj Party and Nationalist Congress Party voted in favor of the bill. The Congress and the Left parties voted against it. The Mines Bill lays down a system of auction for mines supplying minerals while the Coal Bill ushers in commercial mining and auction.

More women in police force

Urdu journo’s case with CID THE MAHARASHTRA government has informed the Bombay High Court that it has transferred the case against Shirin Dalvi, Urdu journalist and former editor of Avadhnama to the state CID. Dalvi has been facing heat ever since she took the decision of publishing the controversial Charlie Hebdo cartoons in her newspaper.

Facing as many as five FIRs, Dalvi had moved the court seeking quashing of complains that she faces. The state government also assured the court that the police was agreeable to clubbing all the five FIRs against her and quashing the complaints. The high court, however, directed the state police not to take any coercive action against her. The court will hear the matter on April 15.

THE UNION cabinet has approved 33 percent reservation for women in the police forces in all Union Territories, in a move aimed at making the police force more gender sensitive. The posts range from constables to sub-inspectors. The quota came in due to a spate of rape cases and the apathy of the police in tackling the issue sensitively. Following the Nirbhaya rape, amendments to the IPC and Criminal

Procedure Code and Indian Evidence Act had mandated that statements in cases of crime against women and any other evidence, will be collected by women police officers only.

Ujjwal Nikam’s startler

ing terrorist Ajmal Kasab had never asked for biryani while in jail, has stunned everyone. A few years ago, Nikam had evoked strong nationalist reactions from the public when he claimed that Kasab had demanded biryani, and this was served to him. This later became a metaphor for luxuries that terrorists get in Indian jails at public cost. He disclosed that he told this lie to divert the media’s attention, which was overly soft with Kasab.

THE CONFESSION by Ujjwal Nikam, the public prosecutor in the 26/11 trials, that the only surviv-

Pak to pay legal costs THE HIGH Court of Justice in London ruled that Pakistan no longer enjoyed sovereign immunity over the State of Hyderabad’s funds containing 1,007,940 pound sterling and 9 shillings. The amount was transferred from the erstwhile state of Hyderabad’s bank account in National Westminster Bank in 1948. Popularly known as the “Hyderabad Funds Case”, the 67-year-old dispute over this sum involves India and Pakistan. The sum was transferred by an agent of the Nizam of Hyderabad to the Westminster Bank account of Habib Ibrahim Rahimtoola, the High Commissioner of the newly created Pakistan in the UK just two days after Hyderabad joined India.

Pakistan will have to pay legal costs to India, pegged at £150,000.

INDIA LEGAL April 15, 2015

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SUPREME COURT/ jat reservations

Backward and Forward

in striking down jats’ inclusion from the central list of OBCs, the apex court has rejected all the present paradigms of backwardness. but then, how do we define it?

By Meha Mathur

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HEY are ridiculed for their rustic ways. They are perceived to be patriarchal and are not known to throng institutes of higher learning, nor hold any clout in senior government cadres or the corporate world. But they own land in most states where they dominate, and enjoy enough political clout to swing electoral fortunes. It’s therefore open to question whether to call the Jats backward or not.

In its judgment on reservations for the Jat community under the OBC category, the Supreme Court recently ignited debate on who is a backward. It rejected the claim of this politically strong community for inclusion in the central list of OBCs, while claiming that newer criteria have to be evolved and newer forms of backwardness explored.

What was welcome was that the SC rejected caste and historical injustice as criteria for backwardness. Thus, said the SC, affirmative action for the third gender was a path finder, if not a path breaker. “It is the identification of these new emerging groups that must engage the attention of the State… rather than to enable groups and citizens to recover ‘lost ground’ in claiming preference and benefits on the basis of historical prejudice.”

It also rejected perceptions of backwardness as a criterion, both of the community about itself, and of others about a community.

But then it also ruled out any mathematical formulae for taking into account social, economic and educational indicators, which would enable some objectivity and uniformity. What’s more, it said backwardness has to be social, and educational and economic Photos: UNI

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April 15, 2015

SUMMER OF DISCONTENT (Facing page) Jats protest against the SC ruling in Lucknow

backwardness can’t be parameters for deciding social backwardness. How, then, does one decide who is “most distressed”?

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he Supreme Court passed its judgment on a notification published in the Gazette of India dated March 4, 2014, wherein the Jats had been included in the central list of backward classes for Bihar, Gujarat, Haryana, Himachal, Madhya Pradesh, Delhi, Uttar Pradesh, Uttarakhand, and Bharatpur and Dhaulpur districts of Rajasthan. The center had done so after rejecting the advice tendered by the National Commission for Backward Classes (NCBC), a statutory body. (The SC, in its ruling said NCBC’s advices are binding on the government). The Union Cabinet meeting to have the notification issued was held on March 3, a Sunday and the notification issued the next day, a day before the general elections were announced. In their appeal to the SC, the complainants asked what was the hurry to have the meeting on a Sunday?

Formed in 1993 in the wake of Mandal Commission Report, the NCBC first submitted its opinion on the inclusion of Jats in November 1997, and recommended it only in Rajasthan, and that too excluding Bharatpur and Dhaulpur. But following the National Commission for Backward Classes (Power to Review Advice) Rules, 2011, and numerous representations from Jats, the need was felt to review earlier recommendations.

In a meeting in June 2011, NCBC decided to defer the matter till the finalization of Socio-Economic Caste Census (SSC), 2011, which was being conducted by the Registrar General of India. But then, in July 2011, it decided to approach the Indian Council of Social Science Research (ICSSR) for a fullfledged survey in the concerned states for Jats. And in October 2012, in another flip-flop, it decided to curtail the scope of the survey to 2 percent of the Jat population.

But in the midst of this, the UPA government instituted a Group of Ministers (GoM) under the finance minister to look into the demand of Jats for reservation and to monitor the survey of NCBC and ICSSR. In its December 2013 meeting, the GoM decided that NCBC and ICSSR, rather than carrying

(left) A rail roko movement by Dangars who are also clamoring for reservation

out fresh survey, come at a conclusion based on existing literature and material available.

Thus, the ICSSR, relying on reports of various state commissions submitted to the respective state governments, and books, some of which were outdated, arrived at conclusions for each state under question.

Thus, in the case of Haryana, ICSSR stated that “Jats are a land-owning community.

Their share in Class I and II government service is close to their population share but they lag behind in both school and higher education enrolment.” In Rajasthan, they are “better off with respect to ownership of land but somewhat lag behind with respect to literacy rate, enrolment in graduation and representation in government service.”

After receiving ICSSR’s report on states, NCBC did a few public hearings to hear the views of stakeholders, examined the literature on which the ICSSR analysis was based, and arrived at its own conclusion, which it submitted on February 26, 2014. It observed that merely belonging to an agricultural community doesn’t qualify Jats for backward status, and called for non-caste criteria. It said that Jats were not socially or educationally backward, nor did they have inadequate representation in public employment, or in the Armed Forces.

It also claimed that the literature on which the ICSSR based its research was in some cases flawed or outdated and cited reasons on a case-to-case basis. The NCBC recommendations were, in turn, rejected by the Union Cabinet in its March 3 meeting.

In its judgment, the SC laid stress on affirmative action only to the most deserving.

“New practices, methods and yardsticks have to be continuously evolved,” it ruled. But in a country where polity thrives on identity, that’s easier said than done. IL

The Supreme Court ruled that new practices, methods and yardsticks have to be evolved to assist the most distressed groups.

INDIA LEGAL April 15, 2015

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SUPREME COURT

UGC guidelines mandatory ven those having MPhil and PhD qualifications will have to clear the National Eligibility Test (NET) or State Eligibility Test (SLET) to be eligible for appointment as lecturers or for their career advancement in colleges, the apex court concluded in a significant judgment.

The verdict went with the regulations of University Grants Commission (UGC).

The court struck down the 2012 verdict of the Allahabad

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High Court which ruled that those who received their MPhil and PhD degrees before December 31, 2009, did not fall under the UGC regulations. It also dismissed appeals against the verdicts of the high courts of Delhi, Madras and Rajasthan on the matter.

The court observed that UGC regulations of 2009/2010 were important to maintain excellence in teaching standards in its colleges and even the center felt the same as a matter of policy.

Illustrations: UdayShankar

Spare educational institutions he apex court recently ruled that extra income earned by educational institutions can’t be taxed as providing education doesn’t fall in the category of profit-making activity.

Upholding a clutch of petitions of an educational society that was taxed by the IT Department on its additional income of `7 lakh, a two-judge bench struck down the department’s argument that an educational institution couldn’t reap tax benefits for undertak-

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ing scholastic activity if it earned high profits. It allowed the institution to enjoy tax exemption.

The Uttarakhand High Court had upheld the IT department’s move.

However, the court asked the government to keep a close tab as to whether educational institutions were deviating from their primary purpose of providing education and pursuing profits. It gave a go-ahead for tax exemption to be lifted from such institutions.

UP slammed for false affidavit he Uttar Pradesh government found itself in an embarrassing situation before the apex court when it was revealed that its affidavit stating planting of 15,000 trees in the Taj Trapezium Zone (TTZ) was incorrect. The TTZ is a 10,400 sq km area comprising over 40 protected monuments, including Taj, Agra Fort and Fatehpur Sikri.

The trees had to be planted for saving Taj Mahal from pollution. The truth came out when a central-empowered committee revealed the truth before the apex court, after physical verification.

The apex court had asked the state government to plant 2.58 lakh saplings in 790 hectares of land, but the report

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April 15, 2015

claimed that not a single sapling had been planted. The court was furious that the state government had defied its orders, made false claims, and felt that the money earmarked for compensatory afforestation was “eaten away” by the concerned officials.

Falling short of ordering a CBI enquiry after an apology was issued by the state government, the court asked it to find out the officials responsible and initiate legal proceedings against them. It also ordered the government to make arrangements for vacant land for planting trees after being told that no land was available.

The UP government will have to file a detailed actiontaken and progress report on the matter, which will be taken up on April 27.

Bhagavad Gita can’t get precedence three-judge bench of the Supreme Court had to deal with references to the Bhagavad Gita which were reeled off in Sanskrit recently by two advocates. While one of them wanted the court to adopt the role of Lord Krishna and proactively provide quick justice to the Christian community with regard to attacks on churches and the rape of a nun, the

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other wanted the Hindu scripture to be made a national text.

The apex court asked the first advocate to file a petition so that suo motu cognizance could be taken on the matter. Rejecting the plea of the second advocate, it said that other religions in India also had sacred texts and it was not possible to consider which one was better.

CCMAA hauled up hreatening that its office bearers would be sent to Tihar Jail for contempt of court, the highest court of the land ordered the Cine Costume Make-up Artists and Hair Dressers Association (CCMAA) to grant membership to make-up artist Charu Khurana. The court had, in November 2014, declared null and void the CCMAA rule that women make-up artists and hairdressers could not become its members and join the film industry in Mumbai.

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Acting on a complaint by Khurana that CCMAA still refused to take her cheques and issue a membership certificate, a two-judge bench ordered the association not to differentiate between men and women, and directed CCMAA to give the membership certificate to either Khurana or her representative. Khurana will also get the membership for `5,000 as per the bylaws of CCMAA. It had allegedly increased the fee arbitrarily to `1 lakh from last November.

Victim’s testimony not enough Lawyers to clarify estimony of the rape victim is no doubt the ultimate evidence to pronounce a man guilty of rape, but that can’t be the sole ground in case her statement seems doubtful after scrutiny. In that case, there is a need to also look into direct or circumstantial evidence and rely on medical reports, before arriving at the final judgment.

This was the reason cited by the apex court while turning down the ruling of the trial court and the Delhi High Court, which had sentenced a man to 10 years imprisonment for rape and kidnapping after relying on the testimony of the alleged rape survivor.

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aking up the petition of the Supreme Court Lawyers Association against the comments made by advocates ML Sharma and AP Singh in the documentary, India’s Daughter, the apex court asked them to respond.

The lawyers interviewed by British filmmaker Leslee Udwin, who has directed the documentary, had made derogatory comments against women. They were defending the death row convicts in the Nirbhaya rape case. The association wanted the court to seek an apology from the lawyers and ban their entry into the apex court for their “inhumane, scandalous and outrageous” viewpoints. The court gave them two weeks to respond.

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SUPREME COURT

Aadhaar card not binding overnment departments who are found flouting its orders on Aadhaar card must be prepared to face action, the apex court ruled. It took strict cognizance of some government departments making Aadhaar cards compulsory for civil rights and social welfare benefits, despite court orders to the contrary.

In 2013, the apex court had

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ruled that no person would face problems for not having this card.

While cautioning the center and state governments, the court asked the petitioners questioning the constitutional validity of the card to report cases of government authorities making Aadhaar card binding for several services and benefits.

The court will make an appraisal of the scenario on April 27.

For prisonersâ&#x20AC;&#x2122;sake cting on a PIL, the apex court sought to know from the center what was being done for jailinmates serving imprisonment because they could not arrange for bail amounts sanctioned by the court. The court sought comprehensive information on such prisoners as well as Indian prisoners lodged in foreign jails from the center and the states.

The PIL highlighted the poor state of affairs in prisons across India as well as the pathetic conditions of prisoners.

The center assured the court that all details will be provided within six weeks.

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Teesta arrest postponed two-judge bench of the apex court hearing the bail plea of social activist Teesta Setalvad and her husband Javed Anand extended her stay on arrest and referred the matter to a three-judge bench.

The couple was accused of misusing funds meant to be used for the 2002 Gujarat riots and the Gujarat police wanted to arrest and grill her in police custody.

The bench ruled that it needed to be seen whether anticipatory bail could be granted to the couple considering there were issues of liberty of human beings and fair and effective investigation to be dealt with.

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â&#x20AC;&#x201D; Compiled by Prabir Biswas

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April 15, 2015

SUPREME COURT/ conference on religious holiday

Judge’s plea on Good Friday a supreme court judge expresses concern over a judges’ conference being held on good friday, a national holiday

By Ramesh Menon

jsstudio

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“What worries me is that instances like this would mar the secular image of the country.”

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— SC judge Kurian Joseph

Chief Justice of India HL Dattu

judge of the Supreme Court has in an anguished letter to chief justices of all the high courts expressed his concern about how a major event like the prestigious All India Chief Justices Conference is being organized on April 3, 2015, which falls on Good Friday.

In his letter, he said that this should not be done by a constitutional authority as the Supreme Court must respect the concept of why the national holiday was given. He even had a one-on-one meeting with the Chief Justice of India, HL Dattu.

Good Friday holds great religious importance to Christians and is observed as a day of mourning as it is the day Jesus Christ was crucified. It is considered a very important day of the Christian calendar.

The chief justice of India had clarified that as the date of the conference was fixed a long time ago, it would not be possible to change it as a large number of dignitaries like chief ministers from various parts of the country were participating in the conference.

Justice Dattu himself will inaugurate the two-day event.

Christian leaders like Father Dominic Emmanuel of the Delhi Catholic Archdiocese voiced unease about this. He told India Legal: “In a secular country, all religions have to be respected. It is not a question about a minority religion. It is about the Indian constitution which talks about respect to all religions. The death of Jesus Christ is a universally accepted fact and Good Friday is a remembrance of that day. It is a universally known fact. It would be in the

“Why cannot we work on Good Friday? In America, with 98 percent Christians, it is a working day.”

— Retired SC judge KT Thomas

order of things if this is corrected.”

Supreme Court judge Kurian Joseph told India Legal: “What worries me is that instances like this would mar the secular image of the country. What really matters is the message something like this is sending.”

In 2014, the government had faced a lot of flak from minority leaders when they turned Christmas into Good Governance Day. Retired Supreme Court judge KT Thomas, however, had a different take. He told India Legal: “Why cannot we work on Good Friday? In America, where 98 percent are Christians, Good Friday is a working day.

Christians can attend church service and go to work. But in India, we are obsessed with a holiday culture. I am totally opposed to this holiday mania that we suffer from.”

Some of the chief justices at the conference will present papers dealing with the financial autonomy of the judiciary and the computerization and strengthening of the Judicial Academy. IL INDIA LEGAL April 15, 2015

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Release ads for Bengal daily iting landmark verdicts by the Supreme Court, the Calcutta High Court ruled that the West Bengal government could not refuse government advertisements to Bengali daily Ganashakti just because it was the organ of the CPM. The newspaper had appealed to the court pleading that the Mamata Banerjee government’s decision was against the policy of

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the Directorate of Advertising & Visual Publicity.

While asking the state government to release advertisements to the newspaper as it did for other dailies, the court ruled that advertisements formed a major source of revenue for a newspaper, and without them the newspaper’s cost price would escalate, thereby affecting its circulation.

Illustrations: UdayShankar

Being judgmental hile sentencing a woman to life imprisonment for conspiring with her lover to get her husband killed, an additional sessions judge of a Delhi court commented that societal sanction is indispensable for any relationship and those which do not subscribe to that yardstick are “illicit” and often meet with unfortunate consequences.

The judgment assumed importance as it sought to define what was an illicit relationship, brought in the moral aspect, and supported restrictions enforced on people by society.

The court also sentenced the woman’s lover and two others who were hired by her lover to shoot her husband.

All the four accused were also fined by the court.

The judgment later came in for wide criticism.

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Railways to fine for littering ny person caught throwing waste on platforms and tracks will be fined `5,000, the country’s green court ruled recently.

This was one of the significant measures taken by the National Green Tribunal (NGT) to maintain cleanliness in Indian Railways.

Pulling up the transport behemoth for its apathetic attitude towards keeping platforms and tracks clean, the NGT asked the rail authorities

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April 15, 2015

and municipal corporations to instal mobile toilets and place dustbins at proper locations in slum areas around railway tracks in the capital. It also asked them to take all the waste generated to treatment plants instead of discharging it into the sewer system.

The NGT had earlier issued directives to the Railways on waste management for people staying close to the railway lines, but no action was taken by it.

Aseem not guilty of sedition he Bombay High Court waived off sedition charges against political cartoonist and anti-corruption and Internet freedom crusader Aseem Trivedi. The court felt that as the cartoons did not disrupt public order while criticizing the government for corruption, Trivedi could not be held guilty of sedition. It also upheld his right to condemn the state machinery and censured the state police for being reckless while slapping sedition charges. The court directed it to follow guidelines set by the Maharashtra government to avoid its wrongful use.

Trivedi was arrested by Mumbai Police under sedition and other charges in 2012 and later granted bail.

His cartoons had parodied India’s national symbols and were distributed at an anti-corruption rally in Mumbai during the nationwide Anna Hazare movement in 2011.

The court was hearing a PIL against Trivedi’s arrest.

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Shuttling between prison, hospital ormer Bihar chief minister and a convict in the fodder scam, Jagannath Mishra, surrendered before the special CBI court. Mishra was sentenced to four years rigorous imprisonment in October 2013 after being convicted in September by the court in the case. He acted in accordance with the Jharkhand High Court order, which had granted him interim bail as he suffered from various ailments and needed hospitalization.

On surrender, Mishra was sent to Birsa Munda Central Jail in Ranchi, but later again sent to Rajendra Institute of Medical Sciences on the orders of the court as he still needed medical attention. The high court is yet to hear his plea for regular bail.

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Verdict on AGI stayed he Delhi High Court stayed till April 27 the verdict earlier given by its single-judge bench that the office of the Attorney General of India (AGI) was bound to disclose information under the RTI Act. The court felt that the matter needed a re-look. The single-judge bench had based its ruling on the premise that as a lawyer for the government, the attorney general discharged public functions and

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was a constitutional authority. It struck down the 2012 Central Information Commission (CIC) verdict that the office of the AGI was not a public authority under Section 2(h) of the RTI Act. While upholding the plea of two RTI activists against the CIC order and denial by AGI to furnish information sought under RTI by one of the petitioners, the court had asked AGI to again take up the application. It also didn’t accept the center’s argument that AGI had classified information which could not be shared with the public.

INDIA LEGAL April 15, 2015

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COURTS

Respect for living and dead he Delhi High Court severely criticized the state government for the way dead bodies were being treated in mortuaries of state hospitals and lack of proper medical treatment to prisoners locked in Tihar Jail in Delhi. Pointing out that there was neither respect for the dead nor the living, the court asked the govern-

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Schools to sell healthy food he Delhi Court accepted the guidelines issued by the Food Safety & Standards Authority (FSSAI) to curb the sale of High Fat, Sugar and Salt (HFSS) foods in and around schools all over India. It also asked FSSAI and the center to frame laws on the basis of the guidelines and implement them within three months.

The court, however, declined to ban HFSS foods altogether in schools and also did not heed to the petitioner Uday Foundation’s request to incorporate the term “junk food” in the guidelines and

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ban them exclusively. The norms for making children aware about eating healthy, nutritious and hygienic food and making it available to children were drawn up by a committee appointed by court under FSSAI. The Delhi government was also asked to create laws based on FSSAI for schools to follow.

As per court’s order, students, parents and teachers can file a complaint if the guidelines were not followed in their schools.

The ruling came in response to a PIL in 2010 seeking a ban on junk foods being sold in schools.

Bail to Maruti workers

Interim bail for Pachauri

eventy seven workers of Maruti Suzuki India Limited (MSIL), out of the 145, were granted bail by the Gurgaon district court recently as there was no evidence to prove their involvement in the violence that rocked the auto-maker’s Manesar plant in 2012. A total of 147 workers were taken into custody after a senior human resource official of the company was killed and other executives received injuries in the violence. The apex court had already released two workers on bail.

ismissing the plea of Delhi Police that custodial interrogation was needed after he comes out of hospital, a Delhi court granted anticipatory bail to RK Pachauri, director-general of TERI (on leave) in the sexual harassment case. The court had earlier granted him protection from arrest till March 27, 2015, and took up the matter a week prior to the actual hearing date.

Rubbishing the Delhi Police’s argument that Pachauri was influ-

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ment, all the municipal corporations and NDMC to submit a report on the facilities at hospitals and mortuaries. It also asked the government to clarify the poor state of affairs.

The court took a grim view of the entire matter considering reports that 29 bodies had been put away carelessly on the road in one of the city’s mortuaries.

encing witnesses and abusing freedom, the court held that the investigating agency did not serve any notice to him for joining the probe, so he could be given interim bail.

The court, however, made it clear that the TERI director would have to cooperate fully with the investigating agency, not enter the TERI office, maintain no contact with the alleged victim and witnesses, and refrain from travelling abroad without its approval.

— Compiled by Prabir Biswas

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April 15, 2015

INTERNATIONAL BRIEFS

Women’s reservation in Germany THE GERMAN PARLIAMENT has passed a new law providing for 30 percent reservation for women on supervisory boards in corporate companies. This will bring within its ambit more than 100 listed companies which have employee representation on their boards. Another 3,500 companies will be required to fix their own quotas, though not as high as 30 percent. This, the lawmakers feel, will have an impact on decisions on working conditions in companies. The need for the law, which got a major push from the leftist Social Democrats (SPD), was felt because of poor representation of women in the decisionmaking process. According to a survey published in the Handelsblatt newspaper, 59 percent of mid-size companies don’t have a single woman in a leadership position.

Brazil tackles femicide

Greece back to old ways

YET ANOTHER BRIC country is faced with the gender discrimination problem. Brazil, where, a woman is killed every two hours, is bringing in a new law to severely punish those who murder women and girls. While there will be a jail term of 12 to 30 years for those convicted, in case of murder of pregnant women, disabled women, girls under 14 and women over 60, there will be a longer jail term. According to government data, the number of murdered women has risen by 230 percent from 1980 to 2010.

GREECE, UNDER PRIME MINISTER Alexis Tsipras (left), has passed a series of social measures worth €200m in defiance of European Union’s warning, reports the BBC. In doing so, the prime minister has fulfilled one of his electoral promises. The measures pertain to food stamps and free electricity to the poor, among others.

Tsipras defended the decision in his speech in the parliament, where he criticized the highhandedness of the EU. “If they’re doing it to frighten us, the answer is: We will not be frightened. What else can one say to those who have the audacity to say that dealing with a humanitarian crisis is a unilateral action?” he asked.

Tanzania makes it tough for foreigners A NEW TANZANIAN LAW— Non-Citizens Employment Regulation Bill—will make it difficult for foreigners to gain employment in the country. It puts the onus on the employer to prove that there was no suitable local contender for a given job. This was reported by the BBC. There is increasing resentment in the country towards foreigners, especially Chinese, taking up many skilled and semi-skilled jobs. There is also influx from neighboring Kenya and Zambia.

A step closer to euthanasia A NEW FRENCH LAW will allow terminally ill patients to cease treatment so that they could enter “deep sleep” and die with dignity. A bill to this effect got overwhelming support in the country’s parliament. This was reported by The Guardian.

The law, however, stops short of euthanasia, which is assisted suicide.

It will allow for deep, continuous sedation until death in case of terminally ill patients. Following the law, French citizens can make “living wills” wherein they can declare that they do not want to be kept artificially alive.

If and when such a situation arises, when they are no more in a position to decide, this declaration should act as their consent.

But President Francois Holland’s critics claim that his government has stopped short of fulfilling the election promise of legalizing euthanasia.

INDIA LEGAL April 15, 2015

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LEAD/ interview/a raja

“One day, 2G will be my strength.... I was victimized for breaking the monopolies” The 2G scam, which was variously estimated as running into lakhs of crores of rupees, shook the entire nation. Corruption seemed to be India’s biggest problem and became a hot election issue.

It brought down a government that had been in power for a decade. The central figure in the controversy was A RAJA, the blue-eyed boy of DMK patriarch Karunanidhi, whose party was part of the UPA coalition. He spent a long time in judicial custody and the case is presently being heard in court. In an exclusive free-wheeling and candid interview with INDERJIT BADHWAR, RAMESH MENON and VISHWAS KUMAR, Raja breaks his silence about what the case meant and how he will be vindicated as he did nothing wrong. Dressed in a white, starched cotton shirt, he sits relaxed in his Gulmohar Park residence with not a furrow on his forehead. He is in a combative mood, wanting to take on the telecom powers that ganged up against him because he says he wanted to bust their monopoly.

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April 15, 2015

You spent 15 months in Tihar Jail. Did it help you to introspect and see life from a different perspective? What was the experience like?

Perhaps it was a different experience.

Having spent about 13 years as an MP and a cabinet minister, Tihar did offer a different perspective. Apart from the accompanying trauma, I read lots of books. As far as the charges against me were concerned, my conscience was very clear. Life in Tihar actually made me stronger to fight the case legally. I decided to use this negative opportunity to positively establish my achievements in the telecom sector.

Have you become more spiritual?

I am an atheist and never hesitate to say so.

However, I do not have any problem with spirituality if it acts as a social force or as a self-searching exercise, provided it is not accompanied by irrational assumptions.

Being a lawyer, did you offer legal assistance to inmates?

Some inmates did discuss their cases with me. I found that many inmates had both factual and legal justifications for the crime they were alleged to have committed.

Giving them legal advice gave me satisfaction.

Photos: Anil Shakya

INDIA LEGAL April 15, 2015

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LEAD/ interview/a raja

You quit as minister and were sent to jail. How did you keep up your morale?

I had to keep myself physically and mentally fit. And because of that, I know 2G will be my strength.

What was your routine in Tihar?

We are told you read a lot.

I was very busy dealing with the Himalayan charge-sheet that is over a lakh pages! Apart from my routine physical exercises and badminton, I spent most of my time with books.

They were my friends and helped me to deal with my loneliness. Some of the books were: Off the Bench by VR Krishna Iyer; Breaking India by Rajiv Malhotra; Sources of Indian Tradition edited by Stephen Hay; India since 1950 by Christopher Jaferelot; A History of God by Karen Armstrong; Judicial Activism in India by SP Sathe; Hinduism and Law by Timothy Lubian & others and Law and Justice by Soli Sorabjee. I once again read my leader’s famous book, Nenjukku Neethi (Justice for Conscious), which always gives me strength to cross hurdles and injustice.

Are you planning to write about your days in jail?

I am writing a book to be published by Penguin, but it is not just about my days in jail. It will talk about why I was put there and how I was charged with corruption as I had allegedly abused power. The truth is that I waged a war against monopoly, cartelization and surreptitious exploitation of a natural source. I am not the only person who was charged for a crime I did not commit. I was charged because I stopped the telecom monopoly from committing fraud and crime. Truth will prevail. History will absolve me.

It is unusual for a politician when charged not to apply for bail even after one year. Why did you not ask for bail?

As the matter is sub-judice, I do intend

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April 15, 2015

During my argument, I submitted that CAG is a “legal illiterate” and acted with malice. to share something without prejudice to the proceedings of the court. On the basis of media reports, the Central Vigilance Commissioner (CVC) sent a report to the CBI, which in turn, filed an FIR against unknown officials and others. It claimed a loss of `22,000 crore to the exchequer on the ground of dilution of shares by M/s Swan and M/s Unitech. CAG gave its report to parliament, which calculated the presumptive exchequer loss to the tune of `1.76 lakh crore on the basis of 3G auction price. Upon the direction of the Hon’ble Supreme Court, the CBI investigated the matter by treating the CVC and CAG report as prima facie evidence and filed the chargesheet which claimed that `30,000 crore could have accrued to the exchequer on the basis of Adjusted Gross Revenue (AGR). However, the trial court, having heard the preliminary argument on the charges levelled, did not rely on any one of the theories of the CVC, CAG or the CBI. Instead, it went by the procedural aspect of abuse of official position

and favors to some companies.

Initially, when the matter was heard by the Supreme Court, it made oral observations that the figure of `1.76 lakh crore was “mindboggling” and I am told it even wanted to vet the chargesheet. That is unknown in criminal jurisprudence. The media and the opposition called it the biggest monumental scam ever heard. CAG works under Article 149 of the constitution as an auditor and its report is meant only for parliament, created under Article 79. The Apex Court exercised its power under Article 142 and observed that the CAG report has to be treated as a basis for a CBI investigation. The CBI filed an FIR in October 2009 based on reference from the CVC. Both these organizations are created under statutes, namely the Delhi Special Police Establishment Act and CVC Act respectively enacted by parliament.

When the charges were framed, the trial court did not rely on any figure for exchequer loss as mentioned in either the CVC or the CAG report. However, bail applications filed by other accused were earlier dismissed by respective courts referring to the enormity of the offence, i.e., exchequer loss.

Constitutional bodies like CAG should uphold the constitution equally with others. Some provisions of the constitution are made on the basis of the presumption that the “King can do no wrong”. Unfortunately, there is no remedial provision when this presumption became predilections. There is a Saxon maxim: “High and Extraordinary Justice is Injustice.” So, the reason why I didn’t file for bail is simple—I was waiting for justice.

How did you feel when your own colleagues criticized you?

In parliament, one AIADMK MP called me Spectrum King. I stubbornly replied: ‘I am a proud Spectrum Raja as call rates were reduced by me and now people are using 3G on their mobiles, which I introduced.’

Did you feel let down by the prime minister and the finance minister?

I have stated that I was denied my rights because of their silence. Now they are paying the price.

In what way?

The investigation is wrong. CAG is wrong. The honorable Supreme Court clearly said the CAG report would be the basis of prosecution, but now the CBI admits it did not go by the CAG report. It conducted a so-called independent investigation. We cannot have it both ways.

Prima facie, is the CAG report correct or not? The order passed by the Supreme Court must be honored. How can a constitutional authority not be obeyed by the CBI? What must be the riddle behind it?

Did you not yourself violate the norms?

I followed the law and the legacy as laid down by TRAI. I was just following the legacy laid down and that is

my duty. Under our constitution, the business of government is allotted to ministers and then, the transaction of business rules is prescribed. For the Telecom Ministry, there is a regulator which has to decide certain issues, including the entry fee. This was discussed with the finance minister directly and by the exchange of letters.

Were you ready for an independent investigation?

Both I and my party wanted to have a JPC probe or even a Special Investigation Team (SIT) to be appointed to investigate 2G. But some people in the Congress turned down this demand and convinced their leaders. On this score, the parliament was

stalled for 45 days. This was one of the reasons why the Supreme Court had to take a high moral ground. If there was a JPC, I would have had the opportunity to explain everything. I was ready for the JPC. They had an irrational phobia.

I do not know why.

I wanted to break the cartel. I disclosed how much spectrum was available. To maintain a level playing field, we did not assign a cost. But those who got it free earlier, wanted to stop new players. Established monopoly players like Bharti had a free run until 2007.

There had never been an auction before and because I wanted a level playing field for new players, we did not go in for an auction. It was also the statutory recommendation of TRAI.

I was surprised that the letters from the PMO were nothing but representation from the COAI and Bharti Airtel. Their complaint to the PMO was simply forwarded to my office with a request to clarify....

INDIA LEGAL April 15, 2015

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2G in a Nutshell STATUS The first stage in the 2G scam trial, which involves former telecom minister A Raja and 16 others, has entered final hearing.

CBI’s Special Judge OP Saini, who has been hearing the case since January 2011, will pronounce his final judgment and it may take 2-3 months. Incidentally, recording of evidence against the accused started on November 11, 2011.

WHAT IS 2G 2G means “Second-Generation Wireless Telephone Technology”. Telecom Minister A Raja issued 2G licenses in 2008. It was reported by the media that there were irregularities while awarding these licenses. These were confirmed when the Comptroller & Auditor General (CAG) after a special audit, alleged that the Telecom Ministry caused a loss to the public exchequer to the tune of `1,76,379 crore ($38.27 billion).

What added fuel to these allegations was the leak of corporate lobbyist Niira Radia’s tapes from the Income Tax Department. Several PILs were filed, which led the Supreme Court to start monitoring the CBI probe. Later, on

So these established monopolies went running to the PM even though they already had got 10 megahertz free. The PM sent me a note with an unsigned annexure. Have you ever heard of such a thing? In the letter, he told me not to proceed without consulting him, so he trapped himself in legal issues. So I wrote back telling him what I did. Now that is being produced as evidence in the court and that is why he is being called to depose by the Opposition.

I still stand by every decision I took.

Investigations by the ED and other agencies could find no evidence of bribes and there is no case of Disproportionate Assets against me.

Do you feel let down by anyone?

Whom do you blame for your current plight?

Having emerged as a politician from the grassroots and having struggled, I

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April 15, 2015

February 2, 2012, it cancelled all 122 licenses awarded during Raja’s tenure. The court also directed that a Special Court be set up to conduct day-to-day hearings in the case; OP Saini was made Special Judge for this case. For the last four years, the court has been conducting the trial, non-stop.

NAMES OF ACCUSED A Raja; Kanimozhi (DMK chief Karunanidhi’s daughter, below left); former telecom secretary Siddharth Behura; Raja’s erstwhile private secretary RK Chandolia; Swan Telecom promoters Shahid Usman Balwa and Vinod Goenka; Unitech Ltd MD Sanjay Chandra; three top executives of Reliance Anil Dhirubhai Ambani Group (ADAG),Gautam Doshi, Surendra Pipara and Hari Nair; directors of Kusegaon Fruits and Vegetables Pvt Ltd, Asif Balwa and Rajiv Agarwal; Kalaignar TV director Sharad Kumar, and Bollywood producer Karim Morani (left).

Besides these 14, three telecom firms—Swan Telecom Pvt

did not take it in that way. I reiterate that I intended to revolutionize the telecom sector in terms of tariff and tele-density. I am happy that this objective was achieved despite my personal liberty and reputation suffering.

As far as my personal liberty goes, I see it as the price I paid for the revolution which brought down the ARPU (Average Revenue Per User) from `350 to `100 per month and boosted telephone connections from 300 million to 800 million within a couple of years.

But I have to state with regret, that our institutions are working at cross-purposes. Earlier, when I spoke to The Hindu, I said it’s an institutional aberration and it has to be resolved. My feelings remain the same. The entire 2G case rests upon the institutional difference between CAG, CVC, Planning Commission, Union cabinet, Telecom Commission, TRAI and others. These

differences are fueled by cartels and magnified by the media and therefore, will not stand before the Rule of Law. When I personally advanced my arguments before the trial court, I challenged the CBI to get the statement of the PM, the FM and the law minister to corroborate their chargesheet where it has been mentioned that the advice of all three was ignored. They did not do that. The silence maintained by them backfired on them individually and institutionally. More importantly, being a student of the Dravidian school of thought and a true follower of my party, the DMK and my leader, Dr Kalaignar, I will not call it a plight but a challenge.

How do you cope with the stress?

I have been brought up within the Dravidian culture, where we are taught

Ltd (STPL), Reliance Telecom Ltd and Unitech Wireless (Tamil Nadu) Ltd—are also facing trial in the case.

CAG WARNINGS Cheap telecom licenses: Entry fee for spectrum licenses in 2008 was pegged at 2001 prices. During the same period, the mobile subscriber base had shot up from 4 million in 2001 to 350 million in 2008.

No procedures followed: Rules were changed with impunity.

Cut-off dates for spectrum license applications were advanced by a week; licenses were issued on a firstcome-first-served basis; no proper auction process was followed; no bids were invited. Raja allegedly ignored the advice of TRAI and the Law and Finance ministries. TRAI had recommended auctioning of spectrum at market rates.

defense. Among those whose statements were recorded were Reliance ADAG chairman Anil Ambani (below left), his wife Tina (third from left) and Radia (below).

RAJA CASE’S STATUS The charges against him are criminal breach of trust by a public servant (Section 409 of the IPC), criminal conspiracy (Section 120-B), cheating (Section 420) and forgery (Sections 468 and 471). He has also been booked under the Prevention of Corruption Act for accepting illegal gratification. Raja was arrested by the CBI on February 2, 2011, and applied for bail on May 9, 2012. It was granted on May 15, 2012.

CBI CHARGESHEET The agency alleged that there was a loss of `30,984 crore to the exchequer in the allocation of 122 licenses for the 2G spectrum. This was the actual loss figure, as compared to CAG’s figure of `1.76 lakh crore, which was notional.

The Special Judge examined 153 witnesses, while the accused called 29 witnesses in their

to face hurdles and fight back. But my family was really affected. I told them that it will take time to prove that it is a bogus case and that it won’t stand scrutiny in a court of law.

Do you think the CBI/CAG has been unfair in conducting the investigation in the 2G case?

As a student of law, I respect institutions created under the constitution and by statutes. Institutions are more important than individuals. However, I have grievances about the manner in which the CBI/CAG carried out investigations. Simply put, investigations in the 2G case were done in a hasty and arbitrary manner without fully scrutinizing relevant documents and without weighing the legacy of the issue. It is evident from a simple question why the CBI in its chargesheet did not rely on the figure of `1.76 lakh crore as loss to

the exchequer. In turn, the trial court did not rely on the CBI theory that the exchequer had lost `30,000 crore.

What does it mean legally? During my argument, I submitted that CAG is a “legal illiterate” and acted with malice.

Documents now coming in the public domain establish that CAG’s action seemed motivated by extraneous consideration. Now, it has also been proved that Mr Vinod Rai was rewarded by the present government by accommodating him as an advisor in the Railway Ministry.

How did you feel about the judgment of the Supreme Court on cancellation of licenses issued during your tenure?

I did feel aggrieved by the order of the Hon’ble Supreme Court on the grounds of violation of natural justice as I was not heard before being condemned.

RAJA’S POLITICAL CAREER: He was four-time DMK MP from Nilgiris in Tamil Nadu. He was a Union minister of state for rural development (1999), health and family welfare (2003), Union minister for environment and forests (2004), and minister for communication and information technology (2007 and 2009).

COMPANIES INVOLVED Reliance Group (ADAG) DB Realty and DB Etisalat (Swan Telecom) Dynamix Group Videocon Group Essar Group

However, the Court made it clear that the judgment should not influence the proceedings of the trial court and so I am bound to abide by it. Nevertheless, with due respect to the judiciary, my humble opinion is that the assessment of facts and interpretation of the law in this regard were not properly placed before the Hon’ble Supreme Court by either parties to the proceedings.

The New Telecom Policy, 1999, (NTP’99) is a document which created the revenue regime by giving up the spectrum/license auction on the ground of level-playing field to promote tele-density at an affordable cost.

It is extremely strange to hold that NTP’99 means spectrum auction. As a student of law, my reading on this issue is that unless and until NTP’99 is amended suitably or reversed, the 2G spectrum auction will not be legally sustainable, since this policy INDIA LEGAL April 15, 2015

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LEAD/ interview/a raja

was designed by the cabinet and approved in parliament. More so, the TRAI, a statutory regulatory body created to fulfill the objectives of NTP’99, has maintained consistently that 2G spectrum should not be auctioned.

I am fully aware that the order of the Hon’ble Supreme Court is the law of the land. Even then, NTP’99 has to be amended to implement the Hon’ble Supreme Court’s order and in the absence of it, there will be a legal anomaly in the harmonious relationship between constitutional institutions.

What was your relationship with Sonia Gandhi?

Sonia was okay, but she was also completely misguided. After my release from jail, she incidentally met me in the parliament and said: “Rajaji, how are you?”

Mr Shashi Tharoor was there at that time. A few minutes later, he told me: “The language used by Madam was to give you solace.”

Did you meet her after you got implicated?

No. I was a minister doing my duty. I do not get into personal relationships or exploit it for my advantage.

What do you feel about the case after your release on bail?

I am pleading for righteousness and justice. The Supreme Court ordered that the report of CAG, a constitutional authority, should be taken as a basis to investigate the case. But the CBI said that they are doing their own investigations and did not want to consider it as they knew it was wrong. They have committed contempt of court.

My simple and honest question to

The Supreme Court ordered that the report of CAG should be taken as a basis to investigate the case. But the CBI said that they are doing their own investigations They have committed contempt of court.

the intellectual class of this country, which consists of lawyers, politicians, bureaucrats, media persons and others is: Is it not an unfair, dubious and deliberate attempt to misguide the country by still relying on the `1.76 crore figure of exchequer loss when the figure of CAG has been discarded by both the CBI for investigation and by the Court for framing of the charge?

Is it not a fit case to probe the veracity of the CAG report and personal integrity of CAG when its report is not endorsed by PAC, and there were internal disputes in CAG about the arrival of the figure?

Despite CBI raids on all my family members and friends in more than 10 places, and enquiries by the Enforcement Directorate and Income Tax department, has any ill-gotten wealth been found with me?

I started the telecom revolution and for that, got branded as a criminal.

To my knowledge, this is the first time in judicial history that the CAG report was taken into criminal investigation, when otherwise it is meant only for parliament. Having taken the CAG report as prima facie evidence, I wanted to call the CAG into the witness box.

However, for reasons best known to the CBI, the investigating officer deposed that the CBI did not rely upon the CAG report for its investigation.

It may not be fair to refer to the proceedings or the deposition made in the trial court when the case is pending.

Yet, it has been my stand from day one, that I have been charged for “murder” but the person who was allegedly murdered by me is still alive. So I am pleading only for righteousness and justice.

There is an allegation that the finance ministry was not consulted

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before deciding the entry fees for new telecom players?

In our parliamentary democracy, a cabinet minister takes the oath under the constitution and is governed to work under the Allocation of Business Rules and Allocation of Transaction Rules.

The Allocation Rules set out a ministry’s area of work, while Business Rules give the frame-work for carrying a ministry’s day-to-day activities. While some ministries have specific regulators like Telecom and Power to decide different set of issues including pricing, most do not have any such mechanism and depend on cabinet decisions. These regulatory bodies have been created by a parliamentary statute and as such have a solid legal status.

In case of the Telecom Ministry, the regulator is TRAI (Telecom Regulatory Authority of India). At that time, it was headed by retired IAS and former telecom secretary Nripendra Misra (presently principal secretary to Prime Minister Narendra Modi). It was unanimously decided in the ministry to accept the recommendations of TRAI wherein the entry fee had to be kept as it is, without any change.

However, the finance secretary (this ministry was headed by Congress leader P Chidambaram) wrote a letter to the telecom secretary (ministry headed by me) as to why the ministry was not consulted before deciding the entry fees. And the same was replied suitably by the telecom secretary quoting TRAI recommendations and cabinet decisions of 2003.

Later, this letter of the finance secretary was held against me to allege that I did not consult the finance ministry. Did I not take an oath under the constitution? Am I a student who does not know anything? I followed the rule book, which says only to consult TRAI as far as the entry fee is concerned which was duly informed to the finance ministry.

Whom do you blame for your 15

Existing telecom players led by Sunil Mittal played a bigger role in defaming and leveling insinuations about wrong-doings in awarding new telecom licenses. months in jail?

Let me first explain the background of the then existing telecom business.

There were groups of existing telecom players who already had first mover advantages, primarily because they got free spectrums. Among the biggest beneficiaries of the “free spectrum” policy was the country’s biggest telecom player, Bharti Airtel owned by Sunil Bharti Mittal. At that time, he also headed the most powerful telecom lobby, COAI (Cellular Operators Association of India). From 1999-2007, existing telecom companies got free spectrums which went up to 10 megahertz. However in 2007, COAI started opposing the entry of new telecom companies and getting free spectrums up to 4.4 megahertz to start their initial operation.

COAI’s arguments were against

TRAI’s recommendation, which said that there could be no level playing fields for new telecom players vis-à-vis existing players (Airtel and others) if new players were not given some free spectrums. So, in the interests of customers and the telecom department, I went by TRAI’s recommendations.

In the meantime, I was receiving letters every day from different ministries asking for clarifications on my impending decision to bring fresh telecom players to break the monopoly of existing players. I was surprised that the letters from the PMO were nothing but representation from the COAI and Bharti Airtel (a kind of copy and paste job with a small note from the PMO).

Their complaint to the PMO was simply forwarded to my office with a request to clarify, without any application of mind whether it deserved any response. But keeping in view my high regard for the PM, I patiently replied and answered all queries to his satisfaction.

Under these circumstances, I have no hesitation in saying that existing telecom players led by Sunil Mittal played a bigger role in defaming and leveling insinuations about wrongdoings in awarding new telecom licenses. But I have faith in the judiciary, more specifically in trial courts which took cognizance of the entirety of the case and I will prove my case and come out stronger.

What is your future plan?

Now, I am busy with my trial. You cannot come across any instance when a minister or a politician who has been charged for a corruption case with such media hype prefers to step into the witness box and offers himself for cross examination by the CBI. But I did it for 12 days. I never felt that I was trapped.

My book will detail my honest efforts in the telecom sector and the dubious attitude of various individuals and institutions will be correctly exposed through this book. IL INDIA LEGAL April 15, 2015

33

LEGAL EYE/ hashimpura killings

Photo: Praveen Jain/Indian Express/Wikimedia

THE HORROR HAUNTS AGAIN in 1987, 42 muslims were massacred by UP cops. the families of those killed waited 28 years for justice to be delivered. sadly, it was not to be as a trial court in delhi recently acquitted all 16 accused

By Sutanu Guru

I

N 2002, India was awash with horror stories emerging from riots that ravaged Gujarat. But in Hashimpura, a sleepy hamlet in Meerut, Shakeela and Zaibun had other concerns. Both had been widowed during the notorious Maliana massacre in 1987 and 15 years later, in 2002, they were awaiting a Supreme Court decision regarding their quest for justice.

However, it was not to be.

While communal riots have flared up in

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April 15, 2015

various parts of India time and again, justice for the relatives of the victims, quite like the Gujarat and Muzaffarnagar riots, is slow and tedious in coming. And as the trial court judgment on March 21 proved, justice delayed is justice denied. The case of these two widows demonstrates that.

In 1987, Shakeela was 48 years, while Zaibun, 28, was expecting her first child.

Meerut was in the throes of communal riots when armed cops belonging to the Provincial

WOUNDS REOPENED (Facing page) The Army ordered all residents of Hashimpura to come out of their homes for search operations (Left) Victims of the 1987 violence show marks of violence on their body

The trial started in 2006, 19 years after the crime.

By then, the main accused, Surinder Pal, had passed away.

Armed Constabulary (PAC) raided Hashimpura and picked up about 50 Muslim men and boys and drove them away in trucks. Subsequent reports revealed that they were taken near irrigation canals and shot dead. Among the 42 dead were the husbands of Shakeela and Zaibun.

CASE MEANDERS ON In September 2002, the Supreme Court (SC) ordered that the trial against the PAC cops, which had started in a Ghaziabad court nine years after the massacre, be shifted to a special court in Delhi. There was a glimmer of hope for Shakeela and Zaibun. But reality set in as the trial meandered here too. All hopes for justice were finally crushed cruelly on March 21, 2015, when the Additional Sessions Judge Sanjay Jindal acquitted all the accused for want of evidence.

The court agreed that the killing took place. But that was no consolation for the family members of those killed, who crawled through the maze of the Indian legal system for 28 years.

The origins of the Meerut carnage AS is almost always the case, last fortnight’s bloody communal carnage in Meerut began with an insignificant event. On May 16, Ajay Sharma, a resident of Kotwali, was gunned down in a land dispute— something hardly unusual in that area. A case was registered and the police rounded up four people.

Following the leads they provided, a police posse, with some back-up from the Provincial Armed Constabulary (PAC), went on the night of May 18 to arrest Yameen from Hashimpura.

The resistance to the arrest was stiff, particularly since it was the Ramzan period and the police had ill-timed their entry to reach around Iftar.... The police tried to force their way in, and in the melee three PAC men were dragged into the lane and their rifles snatched. Initially, it was only a fight between the police and the Muslims. But the affair soon assumed communal colour as a roadside stall—owned by a Muslim, but rented by a Hindu— was set ablaze and a shop owner nearby, Shashi Bhushan was stabbed to death.

In the confusion during the melee, somebody came onto the

loudspeakers of the Imiliyan mosque calling all “believers of the faith” to come out and protect their religion.

Predictably, this brought not just the Muslims out but also the Hindus.

According to District Magistrate Radhey Shyam Kaushik, echoes of this announcement were heard from masjids in neighbouring localities too, and soon it was a free-for-all....

In that first round alone, 15 people were killed and more than 350 shops and three petrol pumps reduced to ashes. Indefinite curfew was clamped in the area and the army conducted a flag march.... Yet the arson had spread. By the next day the rioting had affected nearly every part of the city.

What had turned one of the busiest and most frenetic towns in north India into a ghost town, that resounded day and night to the rumbling of police trucks and the tramping of military boots, was the unprecedented communal frenzy in which more than 150 people died and 1,000 were wounded.

— An extract from Inderjit Badhwar’s story, “The Agony of Meerut” in India Today, June 15, 1987

INDIA LEGAL April 15, 2015

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LEGAL EYE/ hashimpura killings

The victims were confident that justice would finally be delivered because the evidence so painstakingly presented in front of the court was overwhelming.

LOST CAUSE Akbar Abdi, lawyer of the victims

WINNING SIDE Salar M Khan (above) and LD Maul (below) lawyers for the accused

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April 15, 2015

In many ways, the Hashimpura case is a telling indictment of the judicial system in India and how the powerful can evade justice for decades. The wheels of justice have turned very slowly in this case. The massacre took place in 1987. The UP government ordered a CID enquiry in 1988. The report was submitted in 1994. A trial against 19 PAC cops started in a Ghaziabad court in 1996.

Till 2000, 23 bailable and 14 non-bailable warrants were issued against the accused to appear before the court. But to no avail.

Finally, the 19 surrendered, managed to get bail and went back to their jobs.

In 2001, family members of the victims filed a petition in the SC and the case was transferred to special court in Delhi in September 2002.

NO PUNISHMENT An RTI application filed in 2006 revealed that all the accused continued to be in service and none of them had any adverse remarks in their annual confidential reports. Some were even given promotions. Unfortunately, even in the special court, the case could not start because the UP government failed to appoint a special prosecutor till 2004. The trial eventually started in 2006, 19 years after the crime. By then, the main accused, Surinder Pal, who allegedly led the PAC cops during the massacre had passed away, as had a few of his colleagues. It was revealed during the early stages of the trial that the rifles allegedly used during the massacre were redistributed among PAC personnel.

However, scores of human rights activists and lawyers kept up the pressure, as did an intrepid cop called Vibhuti Narain Rai, who was SP of Meerut at that time. Often going against the system and many of his colleagues, Rai doggedly pursued the case even after retiring from service. He even wrote a book on the subject—Hashimpura: The

SIGH OF RELIEF Head constable Niranjan, one of the acquitted

Massacre Everyone Forgot—where he writes: “The story beyond this is a sordid saga of the relations between the Indian State and the minorities, the unprofessional attitude of police and a frustratingly sluggish judicial system. The offences I lodged... met with many obstacles during the last 23 years and are still struggling in various courts to reach their logical conclusion.”

Then, there was a well-known lawyer from Meerut, Asim Ali Sabzwari, who studied the Meerut riots and compiled a 900page report. Sabzwari says that he had to pay heavily for his professional honesty because the Meerut police started treating him as a gangster and he was even denied a passport.

Special prosecutor, Satish Tamta, and family members of the 42 victims seemed confident that justice would finally be delivered because the evidence so painstakingly presented in front of the court appeared to be overwhelming. But that was not to be.

There is palpable shock and anger in Hashimpura now. Incredibly, there still flickers some hope that an appeal in higher courts might help. Perhaps, it is the same kind of despair and hope that sustains widows of the 1984 Sikhs riots in Delhi.

It is obvious there is an urgent need to overhaul, revamp and reform the judicial system, so that people like Shakeela and Zaibun can still believe in it. IL

STATES/ madhya pradesh/vyapam scam

Imaging: Anthony Lawrence

Hell hath no fury like a paranoid CM

E

the ugly, political fistfight in the state over the exam scam has now embroiled digvijaya singh, as cm chouhan digs up an old probe report on illegal appointments supposedly made by singh

By Rakesh Dixit

VEN as Madhya Pradesh (MP) is enmeshed in a huge exam and recruitment scam involving Governor Ram Naresh Yadav and Chief Minister Shivraj Singh Chouhan, deep schisms have formed between the BJP and the Congress in the state. Attempts are being made by the state government to implicate former Congress chief minister (CM) Digvijaya Singh in some illegal appointments.

Attempts by Chouhan to embroil Digvijaya

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April 15, 2015

make him look revengeful and paranoid. His government has dug out a nine-year-old judicial probe report on illegal appointments supposedly made by Digvijaya as CM. Incidentally, Digvijaya had earlier moved the MP High Court to seek direction for a CBI probe into the exam scam. This move followed submission of evidence to a special investigation team by the Congress leader against Chouhan.

The Professional Examination Board (PEB) scam surfaced for the first time in Indore in July

Governor’s son dies in Lucknow MP Governor Ram Naresh Yadav’s son Shailesh Yadav died under “questionable circumstances” in Lucknow recently. He was also an accused in the Vyapam scam.

According to his family, Shailesh was found dead at his residence on the morning of March 25. It was not clear whether he committed suicide or died due to medical problems. It is believed he was diabetic with high blood pressure and was being treated for neurological problems. As per the STF, he is the seventh scam suspect to have died in the case.

2013. India Legal covered this story in its March 31, 2015, issue. The scam led to the government cancelling over 1,000 bogus admissions in medical colleges, arresting 1,800 people and filing 155 FIRs. The opposition Congress wanted a CBI probe and kept pressure on the Chouhan government through dharnas and boycotts of the assembly. And on February 16, Congress leaders Kamal Nath, Jyotiraditya Scindia and others joined Digvijaya in holding a press conference in Bhopal, where they accused Chouhan of tampering with evidence in the scam to save his skin. The party even suspects him and his wife, Sadhna, of being directly involved in it.

HITTING OUT On February 28, officials of the state assembly lodged an FIR against Digvijaya and former speaker Sri Niwas Tiwari. The basis of it was the findings of the Justice Shachindra Dwivedi Committee, which was constituted by the BJP government nine years back to probe irregularities in appointments in the state assembly secretariat. The panel found over 70 bogus appointments. Justice Dwivedi said that the then CM, Digvijaya, threw rules to the wind to accommodate those recommended by the speaker. This did not faze Digvijaya, who has dared Chouhan to hand over the case against him, along with the PEB scam, to the CBI. On March 14, the BJP unfolded another plan to implicate Digvijaya. At a press confer-

ence, state BJP unit president Nand-kumar Singh Chauhan presented documents which he claimed were from the Income Tax Appellate Tribunal and showed evidence of huge payments made to Digvijaya by a Bhopalbased builder. “Income Tax department officials conducted searches in May 2008 at the premises of a local builder and confiscated three diaries with entries of crores of rupees being paid to the then CM Digvijaya. Even the builder had admitted during investigations that the entries were made by him,” Nandkumar claimed. On March 15, a BJP delegation met the income tax commissioner and urged him to take action against Digvijaya on the basis of the diary entries.

However, state Congress chief spokes-man, KK Mishra, claimed that after Chou-han’s name surfaced in the exam scam, he has been feeling insecure and this was an attempt to blackmail Congress leaders.

INSECURE LEADERS That insecurity, to some extent, seems true. On March 17, the state cabinet approved a bill, called the Tang Karne Wali Mukad-amabazi Nivaran Vidheyak (Prevention of Irritating Legal Practice Bill, 2015), seeking immunity to the CM and ministers against “vexatious and unnecessary” lawsuits which public-spirited individuals, RTI activists and NGOs often file against the government’s wrongdoings. The bill empowers the state’s advocate general to raise objection to any litigation against the CM or a minister if he feels it is intended to harass the government or its functionaries. If the advocate general manages to convince the court, the petition will be dismissed immediately.

However, legal experts slammed the bill.

Senior advocate KTS Tulsi said: “They cannot put the government on a higher pedestal than others and hide their sins behind such a law.”

SC Bar Association president and senior counsel Dushyant Dave said: “It’s against constitutional morality. No court will be able to sustain such a law.” A day after the state cabinet approved the bill, a Congress delegation met PM Modi in New Delhi and sought his intervention in the exam scam probe.

Uneasy lies the head that wears the crown in MP. IL

The state BJP showed documents, saying they were from the IT department, which showed that a Bhopal builder had made payments to Digvijaya when he was CM.

STF gets four months for probe The Supreme Court recently set a new deadline (July 15, 2015) for the Special Task Force (STF) investigating the Vyapam scam to complete its job. A bench headed by Chief Justice HL Dattu rejected the STF’s plea for another six months.

The court had in November 2014 set March 15 as the deadline for the job.

INDIA LEGAL April 15, 2015

39

STATES/ j&k / masarat release

SPELLING TROUBLE? the separatist leaderâ&#x20AC;&#x2122;s release from jail by the state government stirred a hornetâ&#x20AC;&#x2122;s nest. will he continue with his earlier stone-pelting tactics and foment trouble in the valley again?

By Vishwas Kumar

PAIN FOR GOVERNMENT Masarat was the face of the 2010 Kashmir agitation, where mobs pelted stones on security forces

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April 15, 2015

I

N 2010, at the peak of unrest in the Kashmir Valley, security agencies intercepted a conversation between Pakistan-based Syed Salahuddin, supreme commander of terror-outfit Hizbul Mujahideen (HM) and a resident. Salahuddin was pouring his heart out to his former colleague, a surrendered HM militant, about feeling hurt over his effigies being burnt because he had called for moderation in the strikes paralyzing the Valley.

Salahuddin blamed Masarat Alam Bhat, the mastermind behind the unrest, for the strikes. Masarat belonged to the Muslim League (ML) faction of the separatist Hurriyat Conference. He called Masarat “immature” and “ungrateful” and divulged that he was “paid a stipend of `30,000 per month by HM for two years between 2006 and 2008”.

Salahuddin felt that prolonged strikes could be counter-productive and these should be eased so that people don’t get disillusioned with the present leaders.

THE MAN IN CHARGE Masarat (third from right) with friends and associates in Kashmir

CLOSE WATCH Home ministry advisory to J&K government:

All 27 criminal cases against Masarat Alam Bhat will be pursued vigorously and steps taken as per law to challenge the orders pertaining to grant of bail to him in such cases.

DIVIDED HOUSE This conversation showed the bitter rivalry, jealousy and oneupmanship among separatist leaders in the Valley as they did a balancing act between India and Pakistan and various parties in J&K, such as the National Conference (NC) and the PDP. In addition, they have to contend with important Pakistan-based terror groups—the HM and the LeT (Lashkar-e-Toiba).

It is no wonder that Masarat learnt to survive by exploiting rival stakeholders to nurture his political ambitions and emerge as a top secessionist leader in the Valley. The 2010 stone-pelting incidents also created the first cracks in the

Close surveillance must be ensured of such activities of Masarat and his other associates which are detrimental to public order or the unity and integrity of the country and J&K in particular. Appropriate action must be taken immediately in such cases.

The surveillance and monitoring should be in close tandem with the central government security and intelligence agencies.

UNI

INDIA LEGAL April 15, 2015

41

STATES/ j&k / masarat release

DO IT LEGALLY Major points in Union Home Minister Rajnath Singh’s statement to both houses of parliament regarding Masarat:

There are 27 criminal cases against Masarat Alam Bhat. He was booked eight times since February 2010 under Section 8 of the Jammu & Kashmir Public Safety Act of 1978. The last such detention order was issued by the District Magistrate (DM), Jammu, on September 15, 2014.

February 4, 2015, that the detention order dated September 5, 2014, ceased to remain in force but a fresh order for detention could be issued after following the procedure prescribed in the Public Safety Act and directions of the Supreme Court.

The state government has informed that there were no fresh grounds for detention as verified from the DM, Jammu.

The Supreme Court had, in March 2013, observed that if any fresh detention order is issued by the J&K government regarding Masarat, the same shall not come into force for a period of one week to enable him to pursue appropriate legal remedy.

The state government wrote to the DM, Jammu, on

BREACH OF TRUST (Below) Rajnath Singh wants Masarat to be kept on a tight leash, while Mufti Mohammad Sayeed seems to be pursuing his own agenda

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April 15, 2015

Thereafter, the detenue was released on March 7, 2015.

The state government also informed that a proper system was in place for effective surveillance of Masarat. As and when anything adverse surfaces, appropriate action as envisaged by law would be taken. The intelligence apparatus and local police are working in tandem for planning of advance deployment in areas likely to be visited by Masarat and other separatist elements.

NC-Congress coalition government of Omar Abdullah. Huge media coverage of the highly successful unrest showed the Abdullah government’s weakness, misgovernance and corruption and helped pave the ground for the return of the PDP, seen as more of a sympathizer for the separatists’ cause. It also helped the BJP increase its hold in the Jammu region.

Under these circumstances, the newly elected PDP-BJP coalition government of Mufti Mohammad Sayeed sensed a political opportunity to facilitate the release of Masarat, who was arrested in November 2010 by the previous government and kept in detention under the controver-

sial Public Safety Act (PSA). The J&K government had a legal excuse to release him as it had become legally untenable to keep him in jail without invoking fresh grounds for bringing in PSA. Mufti, a former Union home minister and a veteran politician, played his cards well by releasing Masarat and thereby trying to win the confidence and goodwill of the separatists, especially the hardliner faction of the Hurriyat Conference lead by Syed Ali Shah Geelani. It was not a coincidence that the Modi government in the same week announced re-starting of the stalled IndoPak foreign secretary-level talks.

Ironically, some six months back, India had suspended the talks, miffed

The letter of the district magistrate, Jammu, to senior superintendent of police, Jammu, refers to another letter from the J&K home department, saying Masarat’s preventive detention order had not been approved by the government.

The letter wanted him to be released in case it had not already been done.

kanals of forest land to the Shri Amarnath Shrine Board for constructing facilities for pilgrimages. This led to separatists protesting and countering the BJP and other affiliated Hindu organizations in Jammu.

The prolonged unrest over this highly emotive issued helped Masarat become a cult figure in the Valley, where Muslims dominate.

Similarly, the BJP gained immensely in Hindu-domiover the Pakistan High Commissioner meeting separatists on the eve of scheduled foreign secretary-level talks. The decision was timed keeping in view the impending J&K elections, where the BJP was trying to foist its own chief minister. Mufti’s decision to release Masarat triggered reactions along expected lines, with the BJP, Congress and NC lambasting it.

CULT FIGURE The two-decade-old separatist movement in the Valley has been dominated by rival factions of the Hurriyat Conference led by Geelani and Mirwaiz Umar Farooq and proindependence leader Mohammad Yasin Malik. The rise of Masarat began in 2008 in the wake of the Amarnath land row. He was appointed spokesman of the coordination committee formed by rival factions of the Hurriyat. The row was triggered over the J&K government’s decision to hand over 800

nated Jammu.

Two years later, Masarat got another chance to foment trouble over the lack of governance under Omar Abdullah’s chief ministership. As head of the Muslim League, he organized a structured “protest calendar” to paralyze the government. As the agitation grew violent, protesters brazenly attacked security forces by pelting stones. It led to the loss of over 120 civilian lives, but made him a very popular leader, even ahead of Geelani.

Incidentally, Masarat is married to a sister of a former militant and is a science graduate from Srinagar’s Sri Pratap College. He received his early education from the elite Tyndale Biscoe School in Srinagar. A major part of the 44-year-old’s life has been spent in jail. Between October 1990 and July 2005, he was in jail for a total of nine years, till he got arrested again in 2010.

Will his release be the beginning of troubled times for the Valley? IL INDIA LEGAL April 15, 2015

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POLITICS/ the changing voter

THE POOR PULL NO PUNCHES

votes are the only weapons in their armory. and they have been using it to the hilt to give a resounding answer to political parties who become greedy and arrogant, as the delhi polls showed

By Scharada Dubey

UNI

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April 15, 2015

T

HE results of elections are often immediately seen on the streets of India. In March 2012, when the Samajwadi Party led by its youthful and energetic leader Akhilesh Yadav swept to power in Uttar Pradesh, I was a single, elderly resident of Lucknow. Overnight, SUVs packed with muscular men in white clothes and with red and green Samajwadi party flags fluttering from bonnets would edge my car off the main road. The men would stare insolently at me, as if to ask: “What’s the matter, lady? Don’t you know it’s no longer Behenji who rules this state?”

As the dust settles on any election campaign, psephologists analyze the results— was it the caste factor that swung the votes, what is the vote percentage of each party, etc.

But the general elections of May 2014 changed things. Marginalized sympathizers of the BJP were vocal and empowered and their in-your-face patriotism urged us to redefine our own ideas of nationhood. When the BJP and NaMo bhakts gobbled up the collective space that we were unwilling to cede, many of us wondered at the might of the Hindu nationalist right and the plight of a decimated Congress.

from a post-poll survey by Lokniti showed that 66 percent of people from jhuggi-jhopdi clusters voted for the AAP and only 22 percent of them voted for the BJP. Among lower-income groups, the AAP secured 59 percent of the votes to the BJP’s 34 percent.

It was only among upper class voters that the BJP narrowed the gap by securing 43 percent of the votes, just four points behind the AAP. Clearly, the poor have stood up to be counted, despite Prime Minister Narendra Modi’s face staring down at them from huge hoardings and the front pages of all major newspapers day after day. The Delhi verdict acted as a shot of adrenalin, after months of disquiet over the pronouncements and posturings of sadhvis and maharajs in the BJP entourage. After months of facing “streetlevel” fighting which permeated cyberspace and the aggression of NaMo bhakts who cowed all opposition into submission, we now had reason to remember the words of poet ‘Rahat’ Indori: “Sabhi ka khoon hai shaamil yahan ki mitti mein,/Kisi ke baap ka Hindostan thodi hai! (The blood of every

PARADIGM SHIFT (Facing page top) AAP’s emphatic victory in Delhi showed the power of the poor voters (Facing page below) The have-nots have woken up to the value of each vote

SHOW OF STRENGTH However, the Delhi assembly elections, where the AAP won 67 of the 70 seats, checked the ambitious surge of the BJP and threw up a new factor—the poor. Figures

UNI

The poorest neighborhoods in our cities see nearly 80 or 90 percent voting in election after election, while affluent voters hardly come out to vote.

Anil Shakya

INDIA LEGAL April 15, 2015

45

POLITICS/ the changing voter

The poor have stood up to be counted, despite Narendra Modi’s face staring down at them from huge hoardings and the front pages of all major newspapers.

LOSING RELEVANCE? (Right) RSS chief Mohan Bhagwat (extreme left) at the World Hindu Congress 2014

citizen is mingled in this soil. After all, Hindustan is not the private property of anyone…or their dad!)”

The stinging defeat of the BJP in Delhi suddenly made us forget Sakshi Maharaj and Sambit Patra, Amit Shah and Mohan Bhagwat. In spite of live telecasts of RSS chief Mohan Bhagwat’s Vijaya Dashami address and clean chits to Amit Shah by the CBI court, India’s great democracy still had space for electoral rejection of what was undoubtedly its most powerful political party.

EMOTIONAL FACTOR When factors other than vote bank and politicians’ calculations emerge in election results, it shows a maturing of the electorate, in spite of the weakening of other institutions of a democracy. A swing away from a party that people had overwhelming-

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April 15, 2015

ly voted for just nine months earlier showed that voters did not evaluate candidates and parties based on their electoral promises. Rather, it was unexpressed emotional considerations, such as sizing up the arrogance factor of relative campaigns that also played a part.

It seemed as if the vast number of urban poor may have a more direct connection with civil rights and liberties in a democracy than we cared to acknowledge. Ever since we gained Independence and became a republic, elections have been treated as the most visible proof of our being a democracy. Free and fair elections and the inconvenient results they often threw up for seasoned political players have been the most reassuring sign of our being different from our neighbors.

While elections do not end injustice or disparity, there has been a growing awareness among the population of the dangers of being election-focused. And this has expressed itself through growing impatience with electoral promises.

The questioning of these promises probably began for the first time when the India Against Corruption movement spilled onto the streets of Indian cities and towns between 2010 and 2012.

People started questioning what had happened to institutions, processes and those responsible for ensuring that these delivered justice. An impatience for change, for delivery of electoral promises, for development that would include the most marginalized and neglected began to seep in at a national level. It was as if voters, long taken for granted on the basis of vote-bank calculations, had woken up to the value of each vote and were determined to extract the most mileage for their support from parties and politicians.

Psephologists scrambled to decipher these messages as they began appearing, whether in Bihar in 2010, UP in 2012 or during the 2004 and 2009 general elections.

Anil Shakya

Pre-poll surveys and exit polls became the subject of hot debates because no matter how sophisticated their arithmetic, voters were still delivering surprises.

AMMA’S DEBACLE This was especially seen in Tamil Nadu, where all the traditional factors and calculations were upturned by voter behavior that defied explanation. I was a resident of Chennai when Jayalalithaa in her second term as chief minister (starting from 2001) had been doing exemplary work, which benefited common people.

One of the government’s success stories was the mandatory rainwater harvesting initiative, which had been enforced successfully for over a year.

It was said that Amma had learnt the right lessons from her party’s debacle in the 1996 elections, when, following an ostentatious wedding for her foster son, she had been unable to win even her own seat. There was no visible dissatisfaction with her party or governance now. Yet, people voted for the DMK headed by M Karunanidhi, who came to power in 2006. When I questioned poor voters why Amma had been unable

FICKLE AND MYSTERIOUS (Above) Despite all the good work, the poor in Tamil Nadu voted out Jayalalithaa’s AIADMK and elected Karunanidhi’s DMK in 2006

(Below left) Amit Shah’s towering presence after BJP’s Lok Sabha victory could no longer translate into votes in Delhi

Photos: UNI

INDIA LEGAL April 15, 2015

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POLITICS/ the changing voter

It is the poor who need the delivery of economic and social justice from elected governments, the most. And they have the power to change the fortunes of candidates across the political spectrum through the might of sheer numbers. It is no wonder that the slum clusters are cultivated as vote banks by politicians.

UNI

POWER OF THE MASSES The poor have the power to change the fortunes of candidates fighting elections

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April 15, 2015

to retain power in spite of having done good work, they gave ambiguous replies, such as “Kalaignar (Karunanidhi) is getting very old.

This may be his last chance, so we voted for him”. Or that “Amma did good work, but this change will do her good, just as the last time (1996) did”.

Strange are the fickle and mysterious ways of the poor. But the logic of these decisions is clear to those who come out in huge numbers to vote, clutching their voter ID cards, ration cards or other acceptable proofs of citizenship. They deliver change because they believe it is healthy in the long run.

I have seen first-hand how the poorest neighborhoods in our cities see nearly 80 or 90 percent voting in election after election, while more affluent voters have other things to do on voting day. As a volunteer helping to find voter names in the dense neighborhood of ramshackle houses in Bopodi in Pune in April 2014, I saw great determination to vote in every family, every household of the poor.

There was great voter engagement, be it in the crowds going to polling booths, those clustered around our table searching for their names on the voter list or those who had come back home from other parts to see their votes did not go waste.

LESSON LEARNT? The reversal of BJP fortunes in Delhi has made the party more organized and combative. A series of bans, from eating beef in Maharashtra to the BBC documentary India’s Daughter, has shown a tightening by the government in all walks of life.

As people groan about these new restrictions, I remember jurist MC Chagla’s pithy comments in his autobiography Roses in December: “With certain notable exceptions the ones who accepted the Emergency—the most contemptible—were the intelligentsia and the industrialists. The failure of the intelligentsia to stand up the government was the biggest blot in the history of the 20 months. Artists, writers and actors climbed on the bandwagon of Mrs. Gandhi and lustily cheered the slogan ‘India was Indira and Indira was India’…. The industrialists, of course, thought of their profits and were grateful to government for permitting them to make a quick buck with no questions asked, provided they subscribed to the party funds which they did with lavish generosity. They had no money to pay their poor workers but they could not or would not resist the demands of the Congress leaders.”

It is obvious that what applied then to Mrs Gandhi can also be applied to Modi and those fawning over him.

So if the evil designs of monopolists and manipulators, of those propped up by the rich and those given free rein by the media stand checked and chastised, giving us hope for a stronger democracy, we have the poorest of the poor to thank for. Hail their wisdom. IL

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ECONOMY/ agriculture/vidarbha suicides

Gone in a f luff while the deaths of cotton farmers have often made news, an rti shows that most of their families donâ&#x20AC;&#x2122;t get the compensation promised by the government on one pretext or the other

By Ajith Pillai

50

April 15, 2015

W

HEN you are in the hustle and bustle of Nagpur, the tragedy of the Vidarbha region that it presides over does not hit you. The booming real estate business, the IT hub and the orange trade is what Nagpurians prefer to talk about.

Their city is Maharashtraâ&#x20AC;&#x2122;s second capital and the 13th largest urban agglomeration in India, ahead of Kochi, Coimbatore and Ghaziabad. On the political map too, this city, which is at the geographical center of India, has an important place. It is the seat of

the winter session of the Maharashtra assembly, the headquarters of the RSS and has an important place in the Dalit Buddhist movement. But drive out of Nagpur into rural Vidarbha and the stories that you are told are grim and foreboding. For well over a decade, the growing number of farmer suicides (activists cite an average of 1,000 a year since 2000) stand in sharp contrast to the “shining Nagpur” stories you hear.

NO COMPENSATION In Vidarbha’s suicide zone—it virtually includes all the 11 districts in the region— there are many twists to the debt-ridden farmer taking his life. The most shocking is the compensation promised to his family by the state. A query put to the government under the RTI Act by Mumbai-based activist Jitendra Ghadge recently revealed that of the 5,698 “registered” suicides in Vidarbha and Marathwada regions since 2011, as many as 2,731 victims were found ineligible for compensation. Reason: they did not leave behind documentation to prove that they had taken a bank loan to cultivate a particular piece of land or because of lacunae in the police records pertaining to their suicides.

The number of accounted suicides does

When rains broke their back It poured devastation for farmers across India as their standing crops were destroyed due to an unprecedented spell of rains and thundershowers this March. Unable to stand their labor and investment being washed away, a large number of them committed suicide or died of shock. Many had taken loans from banks or moneylenders for seeds and fertilizers and had hoped to repay after the harvest.

Reports of farmer deaths are pouring in from Maharashtra, UP, Rajasthan and other states. It’s time serious thought is given to agricultural distress, too.

not reflect the actual number since many are categorized as death caused by disease, alcoholism or malnutrition. But the fact that almost 50 percent of the registered suicides were found ineligible for compensation tells another story about the government not having put in place a system that takes into account loans taken from moneylenders who do not provide documentation. And to think that all this red tape is for the release of a mere `1 lakh to a victim’s family—`30,000 in cash and `70,000 by cheque. The authorities, activists say, use every rule in the book to deny compensation rather than facilitate it.

Ghadge’s RTI query, publicized in a national daily, has had one positive outcome.

On February 17, 2015, the National Human Rights Commission (NHRC) took suo

SEEDS OF SORROW (Facing page) A Vidarbha farmer tends to his cotton crop (Below left) A farmer’s suicide note (Below right) The last resort of a farmer, to bail out his family

Vidarbha Times

INDIA LEGAL April 15, 2015

51

ECONOMY/ agriculture/vidarbha suicides

UNI

“In the Indian situation, the causes (of farmer suicides) are multi-factorial, cumulative, repetitive and progressive, leading an individual to a state of helplessness... and hopelessness.”

—Indian Journal of Psychiatry

GROWERS’ PLIGHT (L-R) A push to BT Cotton, much to the anguish of farmers A child at a cotton processing unit

moto cognizance of the media report and issued a notice to Maharashtra chief secretary asking for a report on the matter within two weeks. The NHRC, in its notice, has observed that the media report, if true, raises “a serious issue of violation of human rights of the families of farmers who committed suicides in Maharashtra”.

WHAT A JOKE The red tape in relief packages for farmers is nothing new. A few years ago when journalist P Sainath toured Vidarbha, he reported about how compensation for families of suicide victims had become a cruel joke. In one village, he was told that farmers in distress could not even take their own lives in peace.

They had to first study the 40 clauses in the form that their families would have to fill up before any compensation is paid. Were they eligible? Did they have the right papers for their spouses to prove their husbands are farmers...?

A BPL card, land in the deceased person’s

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April 15, 2015

name and several other proofs are required before a compensation claim is okayed.

Legally speaking, a person who does not own land is not a farmer. But many rural farmers cultivate on land belonging to other members of their family or take it on lease from landowners. There is no contract signed in such informal arrangements. Neither are there any records—it’s ridiculous to presume there will be documentary proof which can have legal validity when money is borrowed from a loan shark.

VICIOUS CIRCLE According to a report on farmer suicides in the Indian Journal of Psychiatry, the incidence of farmers taking their own lives in Vidarbha has “hit epidemic proportions”. The study notes that these suicides “should not be viewed as only a mental health problem, which is a common notion.” The various factors cited in the report include: chronic indebtedness and inability to pay interest accumulated over the years; rising costs of agricultural inputs and falling prices of agricultural produce; economic decline leading to complications and family disputes, depression, alcoholism and the hope that compensation following suicide will help family to repay debt.

Thus, “in the Indian situation, the causes are multi-factorial, cumulative, repetitive and progressive, leading an individual to a

ANY SUCCOR FOR FARMERS? Legally speaking, a person who does not own land is not a farmer! But many cultivate on land belonging to others or even family members

state of helplessness, worthlessness and hopelessness, obviously influenced by his social strengths and weaknesses along with his mental health status.”

Cotton has traditionally been the cash crop of Vidarbha. Eight of the 11 districts in the region are primarily cotton growing. A section of agriculture experts and activists link the distress among farmers in the last two decades to the introduction of BT Cotton in the region. Their reasoning is that the genetically modified seeds cost twice as much as the traditionally cultivated ones, forcing farmers to take larger loans. This has not only increased input costs but forced the farmers to sell their products cheap during harvest time to the very same money lenders who came to them to recover interest or repayment of previous loans. Other experts say there are several other socio-economic factors that are more responsible.

While BT Cotton is a contentious issue, the question of paying compensation to families of farmers who have committed suicide poses several questions, including providing a framework that will make it easy for claims to be processed. District-level committees which evaluate claims must take up individual cases and see if a family deserves com-

An RTI query revealed that of the 5,698 “registered” suicides in Vidarbha and Marathwada since 2011, 2,731 victims were found ineligible for compensation. pensation. A flexible set of rules is required, which makes allowance for those who take loans from money lenders.

Activists speak of political interference in the payment of compensation. This also happened when the farm loan waiver scheme was announced by the UPA government in its first term. Many farmers were kept out of the loop, while undeserving ones were given the benefit of the scheme. The implementation of such schemes as well as compensations must be transparent and subject to scrutiny to prevent misuse.

One hopes that NHRC’s intervention will ensure that the families of the 2,731 farmers who committed suicide since 2011 get their just dues. That done, the government must urgently address the larger problems faced by the farming community nationwide. This will prevent our kisans from resorting to desperate measures. IL INDIA LEGAL April 15, 2015

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CORPORATE/ dubious firms

54

THE CASE OF THE VA

April 15, 2015

itâ&#x20AC;&#x2122;s a mystery that would stump even agatha christie. some 900 companies disappeared from the markets with cash totaling `1,00,000 crore. even as 45 lakh investors wring their hands in despair, the government has little clue what to do

By Shantanu Guha Ray in New Delhi & Mumbai

I

N a significant decision that mainstream media missed, a judge in the Allahabad High Court asked the central government in early January to probe cases of vanishing companies, saying the numbers were causing alarm. The judge also wanted the center (read the Mumbai-based Securities and Exchange Board of India or SEBI) to ensure compensation for those who had lost their cash.

The judge, his name not so important in the context, said he was shocked to see how companies were mushrooming by the hundreds, operating like fly-by-night-operators and disappearing with cash from the markets.

The judge noted that a Joint Parliamentary Committee (JPC) had raised this issue way back in 2002 and written to parliament: â&#x20AC;&#x153;What the committee is seriously concerned about is how the investors may get their money back from the vanishing companies. The committee urges that SEBI, the (then) Department of Corporate Affairs (MCA), Company Law Board (CLB) and the Reserve Bank of India (RBI) work seriously towards achieving this objective and take all necessary steps, including

NISHING COMPANIES Illustration: Anthony Lawrence

INDIA LEGAL April 15, 2015

55

CORPORATE/ dubious firms

EASY WAY OUT? More than 1,000 vanishing companies did not file balance sheets in 2012-13 but were listed on the Bombay Stock Exchange

The issue of vanishing companies has been raised in the Lok Sabha and Rajya Sabha over 150 times, but data offered by the government then has been the same. attachment of properties of directors of vanishing companies.”

STUMPED GOVERNMENT Worse, the case of vanishing companies has been raised during Question Hour in the Lok Sabha and the Rajya Sabha over 150 times.

What is surprising is that the data offered by the government then has been the same. As per parliament records, the issue was raised for the first time on December 20, 1996 in Lok Sabha by Capt Jagat Vir Singh Drona, the MP from Kanpur. He got no reply.

On July 11, 2014, Nirmala Sitharaman, the minister of state for finance and corporate affairs, raised an un-starred question on the same issue in the Lok Sabha, and in the Rajya Sabha on December 9, 2014. The replies by Arun Jaitley, then minister of cor-

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April 15, 2015

porate affairs, revealed virtually nothing.

Naturally, the judge was alarmed. “How come these companies get a chance to enter the market, who values them, and how come banks certify these companies,” he asked on seeing the plight of investors, numbering more than 45 lakh. The government lawyers had no answer.

Interestingly, the hearing was part of a PIL filed in the court to recover a whopping `1,00,000 crore—equivalent to New Delhi’s Digital India Program—from companies that raised cash from the markets but disappeared within a year without citing any reasons to the market regulator.

As per Indian law, companies are classified as “vanishing” if they cease to file their balance sheets and other documents after raising capital, their office is closed and their directors become untraceable.

Now, how big is the crisis?

DEVASTATING CRISIS Mumbai-based stock market analyst Hemen Kapadia says the issue is alarming, ostensibly because there is no ray of hope for investors who parked their cash in listed companies

that disappeared over the years. Their figure is a little over 900, the largest-ever case of corporate disappearances in India. This figure was garnered after a detailed analysis of the data available on the website of the corporate affairs ministry and data collated from some regional stock exchanges. It is no wonder that SP Tulsian, one of the top stock analysts, asks in a telephonic interview: “So what happened to all these companies?”

The investors have waited for almost 15 years without any reprieve. In most cases, the owners of these companies conveniently downed shutters, avoided notices from SEBI and courts, and even cops, and left India to settle abroad, mainly in South East Asian nations. What is galling is that there is no one to give succor. “I seriously doubt if someone in the government or SEBI is tracking these missing companies. In fact, the ministry of

corporate affairs may not even be fully aware of the number of companies which have vanished after raising cash from (gullible) investors,” said Kapadia.

Taking a serious note of the crisis, the court also directed the center to set up a joint co-ordination and monitoring committee (CMC) to identify these companies. “Owners or promoters of companies which disappeared after raising money from public issues must be traced and money recovered from them,” the judge categorically said.

SERIOUS DISCREPANCY Surprisingly, the ministry of corporate affairs has records of only 87 companies—listed in 2014 on the ministry’s website—that were “vanishing companies” as against 900, and FIRs were lodged against them. Of these 87, 26 were from Gujarat, followed by Andhra

While the corporate affairs ministry claims no new instances of vanishing companies in the last two decades, its internal memo says the number of such companies has gone up significantly.

KEEPING UNDER WRAPS? As corporate affairs minister, Arun Jaitley had nothing important to offer on vanishing companies UNI

INDIA LEGAL April 15, 2015

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CORPORATE/ dubious firms

“Eventually, with a little over 50 percent of the companies vanishing, the actual number of vanishing companies in India could be a little over 1,800.”

—Virendra Jain, founder of Midas Touch, in Money Life

LITTLE KNOWLEDGE Minister of State for Finance and Corporate Affairs Nirmala Sitharaman has sought clarity on vanishing companies from her government

Pradesh with 13 and Tamil Nadu with 10.

Gujarat’s presence on this list and the number of vanishing companies from there (nearly one-third) is worrying considering this state is the country’s industrial hub. Most were agro-based or pharmaceutical companies, as per records with the government.

But experts claim that filing mere prosecution notes against these companies and their promoters and directors won’t help.

Even if the ministry of company affairs issues instructions to the Registrar of Companies (RoC) to scrutinize the balance sheets and other records of companies that raise money through public issue so as to monitor the utilization of such funds, there is little that can be recovered, says Kapadia. Strangely, no one in the government is keen to do either.

Now, consider the catch here.

While the corporate affairs ministry’s CMC—which has representatives from the government, SEBI and RBI— monitoring the situation claims there are no new instances of vanishing companies in the last two decades, an internal memo of CMC says there are “enough chances of the number of such companies going up significantly, mainly from regional stock exchanges”.

NO DUE DILIGENCE As per the CMC note, as many as 2,397 companies defaulted in filing their balance sheets to the RoC during 2012-13.

Of these, 1,012

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April 15, 2015

were listed on the Bombay Stock Exchange (BSE), while the rest (1,385) were from regional bourses. Worse, more than half the companies listed on either the National Stock Exchange or the BSE could be “vanishing” because the companies were already de-listed and 508 entities appeared to be dubious.

“The chances of these companies turning as vanishing companies were very high,” said the note. In regional bourses, the CMC noted, the number of vanishing companies could come up to an alarming 700 or even higher.

Consider this one. In 2012, the market regulator asked all exchanges that did not meet the criteria of `100 crore minimum net worth and `1,000 crore volumes of trade to close down by May 2014. These exchanges were asked by CMC to provide information on companies listed on them before exiting.

And what surfaced was mind-boggling: As many as 3,669 companies listed in 11 regional bourses were not compliant with the listing agreement. The 11 stock exchanges that applied for exit licenses included Chennai, Ahmedabad, Delhi, Jaipur, Kochi, Vadodara, Pune, Madhya Pradesh, Ludhiana, Uttar Pradesh and Bhubaneswar. Worse, the list excluded eight existing regional exchanges for which data on non-compliant companies were not even available.

In an interesting note posted in Money Life, an online magazine dealing with market issues, Virendra Jain, founder of Midas Touch, an investor association registered by SEBI, says a significant number of India’s non-compliant companies are likely to fall in the “vanishing” category. “Eventually, with a little over 50 percent of the companies vanishing, the actual number of vanishing companies in India could be a little over 1,800.”

Jain wrote that he had tried hard to stem the rot, having written to the market regulator on the defaulting companies and their dubious activities, but nothing came out of it.

He reckons that even by a moderate estimate, the total capitalization (aggregate valuation of companies based on their current share price and number of outstanding stocks) of 4,644 companies listed at regional stock exchanges would be a little over `2,00,000 crore.

Someone needs to answer this. IL

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RELIGION/ conversions

For the love of god the far right is hell-bent on raking up memories of centuries’ old humiliation. By pandering to its line of thought, we risk damaging india’s unique social fabric

By Bikram Vohra

Anthony Lawrence

I

HAVE always thought religion is a private affair and not flung in anyone’s face. It is between you and your God and if it does not trespass on your neighbor’s freedoms and rights, so be it, you find your comfort zone and revel in it. Whether it is ritual or song, faith or festival, enjoy yourself.

Which is why I am loath to understand who these people are who have found it incumbent upon themselves to go about the place exploiting poverty. No one is so naïve as

60

April 15, 2015

to see these start-up conversions in India of Christians and Muslims to Hinduism as anything more in-depth than bribing truckloads of villagers with a free lunch and a currency note to vote for a specific political party. Same difference.

There is no great or profound revelation here or some incandescent awakening. Which is exactly what makes it so tawdry. I imagine that poverty in its extreme form, when you have absolutely nothing, makes religion a luxury. And if someone mouths shibboleths with

the lure of calories then, oh let’s just fill our rumbling stomachs and worry about piety’s many garbs later.

The frightening absence of sincerity in the whole procedure is hardly edifying to the vast majority of Hindus who have not engaged in this practice of shepherding people into their fold until now. I just find it cruel to those it is being imposed upon and unfair on me as a Hindu because I would not force you because of your financial weakness to bend or break.

We would have to be extremely gullible to conclude that each Mus-lim (they do not even have the option to convert) or Christian has changed internally and actually embraced Hinduism in their hearts because they had an epiphany.

So, why are these handful of zealots from the Hindutva fringe groups being allowed to mount their monstrous campaign? Haven’t we, through the past sixty odd years, witnessed incidents where these very people have righteously condemned the conversion of Hindus to other faiths? Do I forget the Graham Staines’ gruesome murder along with his sons in a station wagon by a Bajrang Dal activist, Dara Singh who accused Staines of preaching Christianity in Odisha? And did we not once have some hordes of hooligans burn churches and desecrate houses of worship? Have we not culled out many a day to fight the “good” fight in Babri Masjid, do the ghosts of Godhra not haunt our banquets so many years later, have we forgotten the riots of Ahmedabad and Mumbai, a litany of human stupidity that stains the pages of our post-independence history? Even today, 44 years later, Bhiwandi conjures up images of chilling violence.

B

ut enough of the past and the pointless regurgitation of facts and stats, all of which amount to a whistle in the wind and only paid media copy. The over-riding feature is that this is a return match. In their minds the shrill Hindu elements are spurred by a desire to get their own back for the slights of the past. Back to Mohammed of Ghazni in 738 if they can. Because hypocrisy comes in the package deal of 21st century India, even the more liberal middle class Hindu feels a tiny little thrill of achievement:

We would have to be extremely gullible to conclude that each Muslim or Christian has embraced Hinduism in their hearts because they had an epiphany.

Ah, now it is our turn to bat. That it is happening in Prime Minister Modi’s state only makes it that much more riveting.

Prime Minister’s Manmohan Singh-like silence adds malice and mystique to the mix.

It gets more volatile by the minute. Forgotten in this religious roar are the common enemies of our nation: disease, poverty, homelessness, unemployment, hunger and other such jolly stuff. Instead, we are off on our steeds, quixotically chasing windmills of a twisted mind.

The refusal to accept this premise of pressing “like” to the ugliness and not factor it into whatever remedial options are available is a grave threat to the writhing, shriveled sloughed off skin of our secularism. Hindus are being told to recall the Mughal empire, revisit the Mongols, remember the bloody battles as they dominated India for 700 years, shake history rudely awake and relive it through today’s prism. Why not just directly tear at the fabric of the nation’s unity and stop with the pretence?

Half-truths are always insidious. Of course, you start with the tribals. They are easy picking. And then you keep talking about how it’s time to get even and you move up the social ladder to the unemployed, the frustrated, the millions of marginalized Indians in their many not-so-wondrous forms, until you insidiously enter the drawing rooms of the privileged whose canapes and conversations are already shifting tectonically towards instant “wisdom”—after all they did it to us for centuries so though we don’t like it, we can sort of understand it. And before you know it, the far right joins you when dinner is served.

It is just a start for now, the first little cracks in the iceberg. If we don’t do something to stop warming to the idea and tolerate it in that casual fashion of the brute majority we could find the future floating away. IL INDIA LEGAL April 15, 2015

61

MY SPACE/ prison reforms/swami vishalanand

Save those souls!

T our prisons have more security staff and negligible correctional ones. no wonder prisoners come out more hardened and dangerous. it is important to treat them psychologically and spiritually

62

April 15, 2015

HE two recent incidents of crime against women —the Uber rape case and the controversy over India’s Daughter —raise more questions than usually debated on frantic news channels which miss out on momentous points in their rush to break news. Both cases have created a need to look deeper into things which could have been corrected had systems been in place.

The Uber cab driver raped a 27-year-old woman when she hired him to go back home. The discovery that he was acquitted in another rape case shows that much was missed when he committed his first offence. The BBC documentary, India’s Daughter, puts the government in much difficulty. There was an uproar

about whether it was right to go public with the mindset of a rapist who showed no remorse when he committed the gruesome crime, leading to the death of the victim.

Many said it was an attempt by BBC and its international affiliates to malign a fastadvancing India’s image globally. This opinion may be right as BBC only focused on India while turning a blind eye to the alarming rate of rape in other countries, including the UK and the US, which leaves India far behind. The producers of the film should have done a comparative study of different countries and zeroed in on the psychological reasons for people developing such a mindset. Further, the film could have given solutions to correcting this evil. However, it merely aimed to emphasize that Indian men are rapists. It didn’t bother to refer to the problem globally, nor did it treat it as an issue that needs to be studied psychologically.

However, what debaters missed on both occasions was to analyse and dredge out the causes for such crimes and offer solutions. In my view, what has a grave impact on society

Indian jails have no policy for advanced mental health services, no plan for civil society groups’ services and no investment in training and sensitization of staff. in such cases is the worrisome failure of correctional methods and the judicial system.

Shiv Kumar Yadav, the Uber cab driver, a resident of Ramnagar village under Elau police station in Mainpuri, UP, was arrested in 2013 for allegedly raping a girl from neighboring Nagla Saar village. He was also involved in more than half-a-dozen other crimes, including molestation. The Goonda Act and Arms Act were imposed on him at separate police stations, including Elau and Kisni of Kanpur district. Superintendent of police Shrikant Singh had reportedly said: “His name entered the police records for the first time in 2003, when he was just 21, for allegedly molesting and assaulting a minor girl from his village.”

NO SIGN OF REPENTANCE Prisoners like Shiv Kumar Yadav (left) and Mukesh Singh (above) have shown no remorse for their crime despite being in jail

UNI

INDIA LEGAL April 15, 2015

63

MY SPACE/ prison reforms / swami vishalanand

To have set a person with such antecedents free was the first faultline. He should have been convicted and put behind bars to preclude him from furthering his criminal acts. Further, not all those convicted die in jails. Unless they are on death row, they come back into society. Merely putting people in jails will serve no purpose without first ensuring that they don’t return as criminals once their incarceration is over.

N

irbhaya’s offender, Mukesh, who is in jail for the last two years, shows no repentance for what he did while remorselessly taking away a woman’s dignity and life. Or for how he left a family to face a lifelong ordeal. He didn’t even seem aware of what his own family was facing because of his deeds. This shows that he was simply kept and fed in jail and no intervention was made to treat the affliction in his mind, which may have been due to his surroundings, bad company, mass media, defective grooming and observing offensive incidents in childhood.

With almost 15 lakh people going in and out of prisons every year and around 3.5 lakh living in 1,400 jails of India, it is high time

An integrated approach for providing spiritual and psychological services to prisoners during their jail terms is obligatory.

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April 15, 2015

that prisons and correctional homes are developed as hospitals and schools treating diseased mindsets.

However, after independence not much has changed in prisons in India. Even the prison manual of Asia’s biggest jail—Tihar— includes only prison rules, administration, admission and release of prisoners, guarding of prisoners, discipline of prisons, privileges of prisoners, treatment of prisoners, control of establishment and miscellaneous other sundry regulations.

Treatment of prisoners at Tihar only includes treatment of convicts sentenced to simple imprisonment; life imprisonment; death; female prisoners; young prisoners; leper prisoners; lunatic prisoners; transfer of prisoners; labor and jail industries; food and clothing for prisoners and sanitation. There are no attempts made to change mindsets, thought processes and the behaviour of inmates during incarceration.

Today, our prisons have more security staff and negligible correctional staff. There is no policy to get advanced mental health services in jails. No strategy is worked out to forge a partnership among jail administra-

UNI

tion and civil society organizations that are willing to offer services in jails. On various occasions, civil society faces a hard time with authorities and jail staff in pushing their agenda of reformation and rehabilitation.

There is no investment in training, motivation and sensitization of jail staff towards taking a correctional approach.

T

here exists a closed jacket approach in running and managing prisons. If the person posted at the top is proreforms, he will introduce them, but it doesnâ&#x20AC;&#x2122;t work in sync with the system and always remains at risk of being suspended by his successors.

Having worked for 20 years with the Antarkranti Program of Divya Jyoti Jagrati Sansthan, a leading agency in prisoner reformation, rehabilitation and reintegration, I learnt that in view of the large number of prisoners being released from jails every day, it is important to bring about behavioural transformation in them. That will ensure that they donâ&#x20AC;&#x2122;t return as hardened criminals but join society productively and responsibly.

An integrated approach for providing spiritual and psychological services to pris-

A study of factors seeding criminal and offensive behaviour can lead to social interventions, preventing people from getting into conflict with the law. oners during incarceration is obligatory. This will ensure that prisons serve as correctional and development centres with proper systems to assess what has gone wrong with the convict and how that can be corrected.

Proper data-keeping of behavioural patterns can lead to correctional interventions. The study of factors that seed criminal and offensive behaviour can lead to social interventions, preventing people from getting into conflict with the law. They will then abide by the human moral order. A spiritual discipline can forge compassion and empathy in inmates. This can help the administration to overcome the present correctional deficit. IL

POSITIVE VIBES (Above) Games and sports within prison confines have helped convicts to reform and get back to normal life

â&#x20AC;&#x201D;The writer works with Antarkranti Program of Divya Jyoti Jagrati Sansthan, an agency in prisoner reformation, rehabilitation and reintegration INDIA LEGAL April 15, 2015

65

AVIATION/ survey/low-cost carriers

Off to a f lying start a recent survey among apac countries finds that indian flyers are practical and discerning. unlike other nationalities, theyâ&#x20AC;&#x2122;re unwilling to forgo bathroom privileges, legroom and free checked luggage in order to save money

By Shobha John 66

April 15, 2015

Anthony Lawrence

O

VER the last decade, aviation in India saw many somersaults and turbulences. As the sector got used to the concept of low-cost carriers (LCCs) with the start of Air Deccan in 2003, its clientele too changed. From government servants availing of leave travel concessions, defense personnel and rich businessman who could afford to fly, one saw the entry of people who travelled by trains in LCCs. Air travel became a necessity and according to the Directorate General of Civil Aviation, in January 2015, domestic airlines carried 62.45 lakh passengers as compared to 51.47 lakh in 2014. Of this, more than 60 percent market share was of LCCs, confirming their popularity with the Indian masses.

Globally, LCC growth led to a boom in air traffic, be it Ryan Air, South West Airlines or

Air Asia. For passengers, it was a win-win situation as far as costs go.

Even on international routes, LCCs gained ground. A survey done last year by Martin Consulting LLC, an Asia-based aviation consulting firm, found that on flights between India and the UAE, Indigo had garnered 8 percent share of the route market.

Compare this with 7 percent for Jet Airways and AI Express and 4 percent for SpiceJet. As for weekly flights between both India and Dubai, Indigo had 56. Though nowhere close to the 113 for AI, it is better than Jetâ&#x20AC;&#x2122;s 49. Not bad for a Johnny-come-lately.

And this preference for LCCs was illustrated in a recent survey among Asia-Pacific travelers, where it was found that over the last one year, 51 percent of the flights Indians took within Asia were on LCCs. Across the Asia-Pacific, Malaysians were most likely to use LCCs. The survey was done by Northstar, a consulting firm, for Expedia, one of the largest travel companies. The survey was conducted among approximately 3,200 travelers across countries in the APAC region, and included India, Australia, New Zealand, Japan, South Korea, Malaysia, Philippines, Singapore, Thailand and Taiwan. It was done to study the trade-offs between fares and frills.

AGE MATTERS The survey found that the most important parameter for Indian flyers was an airlineâ&#x20AC;&#x2122;s safety record, followed by saving money. Men were more willing to sacrifice amenities to save money as compared to women. Also, those under 35 years have taken more LCCs flights (53%) than full-service carriers (FSCs, at 47%). However, those over 55 took fewer LCCs than their younger counterparts (36% vs 47%). While those under 35 years were more likely to give up legroom and carry-on luggage while flying, those above 55 were more willing to give up full-meal service.

The survey found that over the last two years, Indians ranked second highest after Malaysia among APAC countries for those most likely to have flown an LCC. In fact, 92 percent of Indians surveyed said they had flown on an LCC. While SpiceJet and

Thrifty Flyers As per the survey, this is the percentage of flyers willing to give up amenities to save money: In-flight Entertainment Full-Meal Service Pillows and Blankets Snacks and Beverages Booking Seat in Advance Free Checked Luggage Legroom Bathroom Privileges Carry-on Luggage

56 49 48 47 44 22 21 19 17

INDIA LEGAL April 15, 2015

67

AVIATION/ survey/low-cost carriers

68

April 15, 2015

NO SACRIFICIAL LAMBS Mark D Martin, CEO, Martin Consulting LLC, says that in India, air travel, even by its conservative figures, has grown nearly twice in comparison to its peers in Europe, Africa and the US. “The Indian traveler is discerning and knows what service he wants, be it from FSCs or LCCs. He is not willing to pay for something he doesn’t need and that goes for his meals. His needs are clearly defined by his lifestyle. And that’s the reason we see rising sales of business class seats as well as economy,” says Martin. The practicality of Indians can be seen from the fact that 20 years back, they would lug around suitcases weighing 20 kg. “Today, flyers sport tote bags, backpacks and overnighters that collectively weigh just about 10 kg.”

0.15 Vistara

0

0.81 Air Asia

5

5.53 Go Air

IndiGo were equally popular, among international LCCs, Air Asia was popular, with 37 percent of Indians having flown it over the last two years. Air Asia’s Tony Fernandes deserves a big “thank you” for that.

11.65 Air India

10

5.87 SpiceJet

SHAKE-UP IN THE SKIES (Clockwise from above) Among international LCCs, Air Asia is the most popular; Indigo is going great guns in India as evident from the graphics; SpiceJet is slowly getting back into the groove; LCCs are being increasingly used by passengers in India

15

2.78 Jet Lite

UNI

Passengers Carried (figures in lakhs)

20

22.76 IndiGo

Passengers carried by domestic airlines in January 2015 12.25 Jet Airways

25

And it is this discerning power that came out in the survey, where, after Australians, Indians were least willing to make sacrifices to save money while flying. Bathroom privileges (18%), legroom (19%) and free checked luggage (23%) were the things they couldn’t forgo. However, they were willing to let go inflight entertainment (52%), full-meal service (50%), pillows and blankets (45%), being able to choose a seat in advance (46%) and snacks and beverages (43%).

Much of the preferences for certain things among various nationalities comes from their cultural ethos and LCCs the world over customize their services and products for the local market. So while LCCs such as Lion Air, Air Asia, Ryan Air and EasyJet charge for

Photos: UNI

Market share of domestic airlines in January 2015 8.9

9.4

Go Air

SpiceJet

36

4.5

Indigo

19.6

0

2.5

Jet Airways

Others (Air Costa, AirAsia, Vistara)

18.7

Air India

OTP at four metro airports

OTP (On-Time Performance) in %

Market Share in %

Jet Lite

73.3 IndiGo 65.8 Go Air 63.7 Jet Airways, Jet Lite 52.1 Air India (Dom) 49.6 SpiceJet 10

20

30

40

50

60

70

80

Shackled by Rules EVEN as Malaysian LCC Air Asia is flying high the world over, it hit a rough patch in India over an obsolete rule called the 5/20 rule. This rule, instituted a few years ago, made it mandatory for new airlines in India to fly five years domestically and have 20 planes before flying overseas.

However, the government is set to scrap the 5/20 rule with another confusing rule. While the civil aviation ministry is likely to reduce the number of years an airline needs to fly domestically to around two-and-a-half years from the earlier five years, a system of flying credits has been introduced to improve regional connectivity. New airlines will need at least 300 domestic flying credits to fly international. And if they want to operate international routes less than six hours away, they would need to earn 600 credits.

The move has been lambasted by analysts, who say this increases the obstacles for new carriers and could hit tourism. While foreign airlines are allowed to fly into India, airlines here are restricted from flying overseas.

Ajay Singh, SpiceJet promoter, reportedly said such rules were one of the reasons for Indian carriers not being able to make money.

Source: DGCA

water, in India, a glass of water is complimentary and charging for this basic requirement goes against our culture, says Martin.

In FastJet, an African LCC, flight attendants take Polaroid pictures of passengers and charge $5 for them. In India, taking pictures isn’t even allowed during flights.

However, when it came to customer service, FSCs won hands down, with 78 percent Indian fliers saying they would receive better service here. Only 7 percent thought that

they would get better service on LCCs. But at the same time, 58 percent Indians said they would be willing to accept a slightly lower level of customer service to save money. This part of the survey is along expected lines as FSCs are known for their service, be it hot towels, warm meals or beverages. But don’t forget, every little privilege and fancy frill on an FSC is billed into your ticket. At the same time, FSCs could learn a few things from LCCs—how to ensure quick turnarounds INDIA LEGAL April 15, 2015

69

AVIATION/ survey/low-cost carriers

“The priority for LCCs is to give the traveler what he paid for, which is travel, while for FSCs, it’s to give the traveler an experience he’d love so that he keeps coming back.”

Mark D Martin, CEO, Martin Consulting LLC ENOUGH REASON TO SMILE Air-hostesses from Indigo Airlines, which has the highest market share among domestic airlines

70

April 15, 2015

of their planes while maintaining a squeaky clean aircraft cabin, which is mainly due to less cargo load and fewer beverages.

CHUGGING ALONG? And what are the reasons for Indian fliers opting for LCCs? The topmost reason is to replace a train journey (67%). That’s the highest for any APAC country and is not surprising considering the condition of Indian trains. The second reason is to replace a bus journey (46%), for trips with at least three family members (45%), for a trip with friends (44%) and for trips to visit family and friends (45%).

However, they are least likely to consider LCCs for a honeymoon trip (9%) or a longhaul flight (15%).

What’s also significant is the time factor.

Indians (41%) preferred LCCs for flights up to three hours, but if it approaches five hours, that figure drops to 27 percent, and tumbles thereafter. As for 8-hour flights, a mere 9 percent of Indians would opt for an LCC, and for 16-hour flights, the figure dropped to a dismal 2 percent. In general, younger flyers were more willing to fly longer on an LCC, with 35 percent under 35 years willing to fly more than three hours compared to 27 percent among those 55 and older.

Often, hotel and flight bookings were done together. In fact, 41 percent of Indians often or always booked these together as a package. They were the third nationality to do so after Taiwan (53%) and South Korea (45%). Also, 45 percent of Indians agreed that when booking a flight on an LCC, they splurged on the hotel.

All the nationalities ranked their carryons as more important than bathroom privileges. But those from Japan were most fastidious about bathroom privileges and gave it the highest priority, with only 2 percent willing to sacrifice them to save money.

Malaysians were at the opposite end of this spectrum and deemed toilet facilities least important, with nearly half (47 percent) saying they would give up an airplane bathroom to save money.

As for customer service, 76 percent fliers were willing to accept a slightly lower level of it in order to save money. Travelers in Thailand were most agreeable to this tradeoff (93%), followed by those in Hong Kong (91%). But travelers in the Philippines were least likely to sacrifice this service to save (56%), followed by India (59%).

“At the end of the day, the priority for LCCs,” says Martin, “is to give the traveler what he paid for, and that is travel, nothing else, while for FSCs, it is to give the traveler an experience he’d love so that he keeps coming back for it.”

And that’s exactly why FSCs and LCCs will thrive together. It all depends on the type of traveler you are. IL

SPECIAL STORY/ copyright violation

HALL OF INFAMY (L-R) While Kaavya Vishwanathan’s book How Opal Mehta Got Kissed, Got Wild and Got a Life was recalled following plagiarism charge, Pulitzer Prize winner author Dorris Kearns Goodwin was put to shame for copying from other books and Boston Globe columnist Mike Barnicle was accused of creating fictional characters in his column

BY ANY OTHER I NAME... IT’S

STEALING

posting content online is an attractive proposition. but beware of those who will swipe it off and pass it as their own. can copyright laws be made more stringent?

By Deepa Gupta

N a recent case of copyright violation by a satellite radio provider in California, a US court pronounced its verdict in favor of the plaintiff, music band The Turtles. The radio provider had infringed upon copyright by airing the band’s pre-1972 songs without paying royalties.

Copyright violation is a serious issue in India too. However, the common man is never exposed to copyright laws. Even the basic essentials are not taught at school or college levels.

Most people confronted with related issues have a half-baked understanding of the subject.

LIMITED IPR KNOWLEDGE However, with social media gaining popularity, posting content—stories, poetry, blog content, pictures, thoughts, or for that matter, just about anything online—is the name of the game. Most people feel unthreatened by an act of copyright violation, since it seems an unlikely thing to happen to them or for them to be held guilty of. Awareness and knowledge of Intellectual Property Rights (IPR) is INDIA LEGAL April 15, 2015

71

SPECIAL STORY/ copyright violation

Law and copyright THE main feature of copyright laws is that they seek to protect and preserve copyright and connected Intellectual Property Rights (IPR) of creators of original literary, dramatic, cinematograph, musical or artistic works. The Copyright Act allows the holder of the copyright various rights.

Nevertheless, these rights continue being violated in India. Says Pavan Duggal, advocate, Supreme Court: “In the context of Internet and cyberspace, most Indians believe copyright laws are not directly applicable.

Hence, cut-and-paste is the norm.

Consequently, we find copyright laws being violated in the context of the electronic ecosystem and also the internet. Further, employees often carry their company’s data, violating copyright laws.”

And with the advent of smart phones and camera-enabled phones,

“ On several sites I have seen my work posted by someone else as his own.”

—Kamaljeet Singh, artist 72

April 15, 2015

it has become even easier.

If the said copyright is violated intentionally, the person “could be exposed to civil and criminal liability,” Duggal adds. Civil liability could be in the form of injunction and damages.

There is also criminal liability, as copyright violation is an offense punishable by imprisonment, which may extend to three years and a fine between the range of `50,000 and `2 lakh.

Apart from this, violation of copyright has been covered under various provisions of the Indian Information Technology Act, 2000. In the context of the electronic ecosystem, if the copyright of a particular person is violated, he can seek damages up to `5,00,00,000 by way of compensation under Section 43.

After all, we really do not have the right to copy someone else’s original work, do we?

limited. Sometimes both the victim and the culprit are equally unaware that a law has been violated. With social media gaining prominence, people post stuff mindlessly, caring little about copyright violations.

But then, there are artists, writers, bloggers, photographers and the like, for whom social networking sites are an important means to make their work accessible to people across the world in order to increase their clientele. Says calligraphy artist Kamaljeet Singh from Ludhiana: “As an artist, I post pictures of my work in progress as well as the final creations.

Sometimes, I also put up pictures of my workshops and exhibitions. Updates about media coverage and my experiences with the world of calligraphy are available on Facebook, Flickr, Redbubble and Twitter.”

Despite being aware of copyright laws, Singh has been victim to instances of theft.

“Each work I post online has my signature. But I have often come across sites where I have seen my work posted by someone else as his own. The culprit cleverly removes my signature. Once, someone created a fake FB account in my name and put up my artwork as his profile picture! I had to report the matter to FB

after which the fake profile was deleted. My clients can be misled by all this,” she says.

BLATANT COPYING Ditto for Saurabh Dua, fashion and advertising photographer, New Delhi, who posts images on social media portals and websites that are related to his field. Though he does not know copyright laws per se, he has learnt from experience.

“Images definitely get misused many a time,” he complains, “and there is little one can do.”

Says a Delhi-based journalist who does not wish to be named: “I am a travel writer and was once extremely disappointed to see my travel piece put up on a website in the name of a foreigner. They had copied it word for word.”

Ashwini Wagle, associate professor and director, Didactic Program in Dietetics (DPD), Department of Nutrition, Food Science and Packaging, San Jose State University (SJSU), California, usually posts pictures of her runs and hikes on FB so that they can inspire people to be more physically active and also give them various options to explore. “Being a professor of nutrition, I feel I need to be a good role model for my students and show them that staying physically active is a choice and can be done despite a busy lifestyle. I do post some workrelated photos or messages, but most are usually poster presentations or students’ works that need a wider audience,” she says. All her work-related posts on FB are tagged to SJSU. The author and SJSU carry the copyright of all intellectual property.

Being aware of copyright laws in the US, she says: “I post personal writings or poems once in a while to a limited audience on a social networking site. Although I haven’t sought copyright for the writings formally, I have ensured copyright using a poor man’s method, emailing my writings to myself. I am in the process of seeking formal copyright for all my work from the US Copyright Office.”

She did come across a couple of incidents where some close friends had plagiarized her poems for their own purposes at social events, in her words, “without my permission, but did inform me after the fact. These incidents occurred outside of the US and mostly, I would like to believe, due to lack of knowledge regarding plagiarism on the users’ part.”

Siddharth Jain, co-founder, Playsimple

Games, Bangalore, has studied copyright laws at business school and it is this awareness that makes him understand the implications of posting content online. “I know how to secure my site against abuse and hence, have really not had any trouble with posting text or pictures online,” he says.

It is this deep understanding and thorough knowledge along with technical know-how that can keep content theft at bay.

LEGAL LACUNAE “In India, copyright laws are so weak that one could copy Tagore, changing names, places, paraphrasing the sentences and never be caught,” rues Mariam Karim Ahlawat, author and playwright.

She herself has faced a situation where an author and well-known publisher copied her first novel so closely and cleverly that she was taken aback. “I showed the two novels to an intellectual property lawyer and it was identified as ‘altered copying’. So close was the copying that if my protagonist has palpitations, hers had too. If my character gets trees from Bengal to plant in UP, hers brings trees from UP into Bengal. If my character has a bald head and hairy ears, she has a replica. In fact, some sentences have been copied verbatim. In some paragraphs, you can pick out the sets of words used and know it’s the same paragraph—to the extent that she has even copied a mistake I made in my novel—bael fruit being consumed during the monsoons.”

Yet, Ahlawat has not slapped a case against her. “For one, it’s too expensive, too long-drawn out and I have little moral support from people in the publishing circle,” she says matter-offactly. “Besides, her book has been widely translated. It is also annoying that my precious work has been so ill-used. I hope someday she is exposed and also that copyright laws improve to include punishing altered content and copied characters.”

FREE FOR ALL Bloggers too have faced problems with all content being available online for the audience to read. Taniya Sahni, food blogger and photographer, says: “I am very particular about putting up pictures with my signature. Yet, they might have been misused, though I have yet to come

“In India, copyright laws are so weak that one could copy Rabindranath Tagore and never be caught.”

—Mariam Karim Ahlawat, author and playwright across such an instance. Content, of course, gets stolen all the time.”

Dolly Singh, founder of Delhi Poetry Festival, has poetry, prose, short stories and articles on her blog and on FB. Even though she is aware of copyright and IPR, she says: “I haven’t got around to using them. Copyright infringement has become a menace. As the co-founder of a poetry group, I keep getting complaints from poets facing this threat. I’m afraid this may discourage poets and writers from posting their work online.”

“It is not possible for artists and photographers not to share their works online. We need to stay connected and updated,” says Singh. “I would advise all artists to use prominent water marks on all the work they upload on the internet. Do not post high-resolution images. Try posting side angles instead of direct shots of the complete artwork. Keep browsing to check if your work is being used somewhere else. If you come across a theft, connect with the admin of the site immediately and request removal of the picture or send a legal notice.” IL INDIA LEGAL April 15, 2015

73

OBITUARY/ lee kuan yew

THE GREAT

MENTOR L

EE KUAN YEW, 91, the architect of modern Singapore, was the stuff legends were made of. It almost seems like a dream if you consider what all he did to ensure that Singa-pore, a dot on the map, got a place in the sun despite stiff opposition. He passionately worked on the strategy of building Singapore into one of the wealthiest countries in the world.

Many called him a dictator who did not care for civil liberty and human rights, but he did care. He knew some of these had to be sacrificed if his country had to spiral the way he wanted. When he started, the annual per capita income in Singapore was about $400. Years later, he had the joy of seeing it cross $50,000. He will be criticized for his strict controls over the press, public protests and political opponents. But commoners in Singapore will vouch that he did the right thing and often cite India as an example of how democracy may not the best thing.

If Singaporeans felt their heart miss a beat when his death was announced on March 24, they had good reason to do so. They had seen a quality of life that they never ever imagined in their poor surroundings.

Singapore was just another insignificant port and a British colonial backwater before Lee came in.

Today, it is a teeming global trade and financial center. Shipping companies love berthing there as it is so organized and fast. They wait their turn not for days to unload cargo, but hours. Compare that with Mumbai and you will see the genius that was Lee. Singapore today is the

74

April 15, 2015

this legendary leader strategically transformed his tiny nation into one of the most developed and wealthiest countries of the world. can india learn lessons from his pragmatism and discipline?

By Ramesh Menon

world’s largest container airport. In a tribute, David Cameron, the prime minister of the UK, said: “Lee personally shaped Singapore in a way that few people have any nation. He made his country into one of the great success stories of our modern world.”

He also created a sense of pride in his people, which showed in the clean, litter-free city-state, disciplined driving, good parking, speedy public services, et al. You will hardly ever hear blaring horns on the busy streets where speed limits are high as driving is disciplined. You will hardly ever see a police officer; but they are everywhere watching.

There is no eve-teasing as punishment is severe. It is safe for girls to walk or travel unescorted. No taxi driver cheats as there is fear of the law. Buses and the Metro work like clockwork.

This did not come easy as Lee had to impose very strict laws and punishment for those who did anything that went against the country’s ethos of being a nation on the move. He believed that only strict fines or punishment would stop crime.

In 1960, Lee set up Singapore’s Housing and Development Board to replace slums and squatter settlements with apartments.

Amazingly, nearly 80 percent of the resident population lives in government-subsidized housing. Military training was compulsory as Lee saw how it inculcated a sense of discipline and kept the country prepared for any emergency. Srinath Keshavan, chief executive, Trade Risk Consulting, Singapore, says: “Lee was known for his farsighted vision, clarity and resolve to get things done. I feel privileged to find a place in this country.”

L

ee took the long tough road to ensure that Singapore beat a new path very different from its stagnant neighbors.

He focused on building ties with the powerful. He was not being populist but was pragmatic and made sure that leaders were chosen carefully as they determined the future of the country. United Nations SecretaryGeneral Ban Ki-moon declared: “Lee was a legendary figure in Asia.”

For three decades, Lee was at the helm, ruling with an authority few world leaders

When Lee entered politics, the annual per capita income in Singapore was about $400. Years later, he had the joy of seeing it cross $50,000. ever had. At a rally in Singapore nearly 35 years ago, he said: “Whoever governs Singapore must have that iron in him. Or give it up. This is not a game of cards. This is your life and mine. I’ve spent a whole lifetime building this and as long as I am in charge, nobody is going to knock it down.” Transpose this with what is happening in India. What one government does, the other gets busy demolishing and running it down.

Of India, Lee once said: “If ministers and top bureaucrats were like Infosys’s Narayana Murthy—hardworking, tough taskmasters, hard negotiators, but forward-looking, India in one generation would become a firstworld country.”

Lee was a British educated lawyer and was one of the founders of the People’s Action Party, which ruled the city from 1959.

It led the newly-born country when it was separated from Malaysia in 1965. Lee never looked back. He did not need to. He had made Singapore into one of the most regulated societies. Critics, however, feel that all the prosperity and growth has come at the cost of personal freedom. This is something that future generations may want to change. IL

DREAM REALIZED The iconic skyline of Singapore, made possible by one man’s vision

INDIA LEGAL April 15, 2015

75

HEALTH/ veterinary medicine / antibiotic use

DONâ&#x20AC;&#x2122;T COUNT ON YOUR CHICKENS the increasing use of antibiotics in poultry is making people resistant to these medicines and could lead to superbugs. fortunately, the food regulator has notified a new order on drugs in the veterinary sector

By Dinesh C Sharma

F

OR all those who love their chicken, here is alarming news. Scientists have found a high presence of antibiotic residues in chicken, resulting in changes in food safety law. The story started from Narayana Hrudayalaya, the heart hospital in Bangalore, founded by noted cardiac surgeon Dr Devi Prasad Shetty. He gets patients from all socio-economic backgrounds, including rural areas, as the hospital offers cost-effective care and runs an insurance scheme for the underprivileged. Most such patients come to Bangalore for heart surgery.

DANGEROUS LIFESTYLE In the past few years, Dr Shetty and his team noticed a rather disturbing trend among many such patientsâ&#x20AC;&#x201D;they were often resistant to frontline antibiotics. This was surprising and rather

76

April 15, 2015

McD’s bold step Mc’Donald’s has announced that it will serve only those chickens that have not been fed with antibiotics, reports The New York Times. This will create pressure on poultry farmers to change their habits, as it’s one of the largest buyers of chicken in the US. CHICKENS COME HOME TO ROOST (Left) Poultry owners feed antibiotics to chicken brazenly, without considering health hazards (Below) Chicken has become a staple food of many Indian homes as a protein source, hence the rush to increase output

worrying because these patients had no history of high antibiotic administration, which, in normal course, would have rendered them resistant to powerful antibiotics. This forced doctors to probe for other possible causes.

Detailed enquiries into their lifestyles and dietary habits made Dr Shetty conclude that meat and poultry consumed by rural people could be a probable reason for them becoming resistant to antibiotics because these products are known to contain drug residues.

Dr Shetty then alerted the Centre for Science and Environment (CSE) in New Delhi, because it had done a study on the presence of antibiotics in honey in 2010. CSE took up INDIA LEGAL April 15, 2015

77

HEALTH/ veterinary medicine / antibiotic use

Heed that feed!

The Food Safety and Standards Authority of India (FSSAI) came out with a new order in January 2015 on drugs and growth promoters for the veterinary sector. The draft order will come into effect on July 1, 2015. Here are its salient points: FSSAI is in the process of approving maximum tolerance levels for residues of veterinary drugs, including antibiotics in meat and poultry products, and withdrawal period of veterinary drugs and antibiotics in animal-based organic food products.

It has issued a new order recognizing antibiotic overuse and misuse in food-producing animals as a problem under the provisions of the Food Safety and Standards Act 2006.

State Food Safety Commissioners have been asked to enforce advisories circulated by the Department of Animal Husbandry, Dairying and Fisheries in 2014 about the use of antibiotics in the veterinary sector.

The advisories restrict the use of antibiotics as growth promoters in feed and feed supplements.

All food operators are supposed to ensure proper supervision of overall antibiotic use and only registered users will be allowed to procure licensed antibiotics. Authorities are supposed to institute a system of tracking antibiotic use, and explore alternatives.

Cardiac Surgeon Dr Devi Prasad Shetty surmised that intake of meat and poultry products, which had residues of drugs, had made his patients resistant to antibiotics.

the challenge and collected chicken samples from Delhi NCR and analyzed them for antibiotic traces. It revealed that out of 70 chicken samples tested for six commonly used antibiotics, 40 percent had varying amounts of antibiotic residue. In 17 percent of the samples, more than one antibiotic was found.

This can be dangerous, as small amounts of antibiotics ingested as part of food over a period of time can make gut bacteria resistant to them. In addition, chicken itself may carry resistant genes or infection agents which are drug-resistant, although the CSE study was not designed to look for this.

CORRECTIVE MEASURES The poultry and meat industry contested the results of this analysis, but the expose has forced the food regulator—the Food Safety and Standards Authority of India (FSSAI)—to

78

April 15, 2015

notify a new order on drugs and growth promoters used in the veterinary sector. The draft order, published in January 2015, will come into effect on July 1, 2015. The authority is also in the process of fixing maximum permissible limits for drug (including antibiotic) residues in animal products.

Till now, the Ministry of Health, the Ministry of Agriculture and the Ministry of Animal Husbandry only had advisories on responsible use of drugs in animals. In December 2014, the Ministry of Agriculture wrote to states pointing out that “overuse of antibiotics over a period of time leads to local bacterial populations becoming resistant to certain antibiotics.” The letter mentioned that “residues of antibiotics like oxytetracycline, chlortetracycline, doxycycline, enrofloxacin, ciprofloxacin and neomycin have been detected in the marketed poultry muscle, liver and kidney”.

Though these levels are below the permissible limits prescribed by international agencies, the letter said, there are “gaps in structured and focused approach to combat anti-microbial resistance in livestock production”.

Since food-producing animals are a major source of protein for the Indian population, people fed with such drug-laden animal food may develop resistance to antibiotics. WHO recommends that antibiotics that are critical for human use should not be used in animals.

European countries have standards for antibiotics in food commodities.

The problem of antibiotic resistance has to do with their poor regulation in India, for both human and animal use. People pop antibiotics at their own sweet will, pharmacies dispense them without prescriptions and doctors prescribe them even for coughs and colds. All this leads to their indiscriminate use, making the disease-causing organisms resistant to drugs.

SUPERBUG RESISTANCE Drug resistance could spread through enzymes like the so-called superbug, New Delhi Metallo-beta-lactamase (NDM-1), which caused an uproar in August 2010. Superbugs are not monstrous organisms, but tiny free-floating genetic material which can render diseasecausing bugs untreatable to most drugs. These superbugs can’t be treated with any available antibiotics, making even treatable ailments hard to treat. In response to the NDM-1 controversy, the Ministry of Health and Family Welfare has formulated a strategy to contain overuse and misuse of antibiotics. A new schedule of antibiotics, which can be sold only through prescription, has been notified under the drug rules.

UNI

Small amounts of antibiotics ingested as part of food over a period of time can make gut bacteria resistant to them. Chicken itself may carry drug-resistant genes.

However, the use of antibiotics in the veterinary sector remains unregulated. One can buy antibiotics by weight just like one buys atta or maida in the wholesale drug market, Bhagirath Palace in Delhi and in agricultural belts of Punjab and Haryana. Many of these drugs are being imported from China and are of questionable quality.

Hopefully, the new order by FSSAI would be enforced strictly once it comes into effect. It has been suggested that the industry should look for safer alternatives for feed to prevent infections as well as for herbal growth promoters. It is not just the health of chicken-eaters which is at stake, but also of vegetarian consumers, as resistance can spread to them as well via touch or through other environmental routes.

There’s no chickening out of this problem. IL

GRAVY TRAIN? Even as chicken enthusiasts worry about acquiring bird flu, they are unaware of the other peril—drug resistance

INDIA LEGAL April 15, 2015

79

W

1. Which one is wrong?

A: A shoal of fish B: A swarm of flies C: A chain of locusts D: A bundle of hay 2. The … of leaves.

A: crackling B: rustling C: creaking D: babbling 3. Dog’s breakfast.

A: Mess B: Bones C: Cat D: Bread 4. Wrong rhyming.

A: Artsy-fartsy B: Fag-hag C: Hilly-billy D: Mish-mosh 5. Coup de grace.

A. Quick glance B. Finishing stroke C. Surprise attack D. Masterstroke 6. Carpenter is known by his ….

A: hammer B: saw C: chips D: pencil 7. Sprog.

A: Trainee B: Swimmer

have fun with english. get the right answers. play better scrabble.

By Mahesh Trivedi

C: Criminal D: Acrobat 8. The Ancient of Days.

A: Fossil B: God C: Grandfather D: January 1 9. God’s acre.

A: Graveyard B: Paradise C: Church D: Slum 10. King of terrors.

A: Osama B: Ghost C: Poison D: Death 11. Do the honors.

A: Act as host B: Perform last rites C: Win medal D: Finish studies 12. To stand pat.

A: Support B: Criticize C: Obstruct D: Resist change 13. Bag of bones.

A: Dogfood B: Very thin C: Graveyard D: Doctor’s bag 14. Vestige.

A: Storm B: Evidence C: Bandage D: Antique 15. Every man jack.

A: All-rounder B: Expert C: All D: Captain 16. War of elements.

A: Anger B: Fire C: Adventure D: Great storm 17. Mind one’s Ps and Qs. A: Dress properly B: Be careful C: Complete details D: Do not mind 18. Get stuffed!

A: Steal and run!

B: Get fat!

C: Go away!

D: Use your brain!

19. Fancy-schmancy.

A: Twins B: Sisters C: Very fancy D: No such word 20. Near the knuckle.

A: Offensive B: Nearby C: Almost rich D: Almost broke

ANSWERS

1. A chain of locusts 2. rustling 3. Mess 4. Hilly-billy 5. Finishing stroke 6. chips 7. Trainee 8. God 9. Slum 10. Death 11. Act as host 12. Resist change 13. Very thin 14. Evidence 15. All 16. Great storm 17. Be careful 18. Go away!

19. Very fancy 20. Offensive

Y L D R WO ISE

SCORES

0 to 7 correct—You need to do this more often.

8 to 12 correct—Good, get the scrabble board out.

Above 12—Bravo!

Keep it up! textdoctor2@gmail.com

80

April 15, 2015

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PEOPLE / art works HANDY MESSAGE An artist shows her hands after painting on a wall, as part of a campaign for coexistence and renouncement of violence, in Sanaa, Yemen DIFFERENT STROKES Belgian artist Ben Henine paints a model with chocolate colored paint during an exhibition in Hong Kong

FRAMING JUXTAPOSITION Princess Caroline of Hanover looks at a creation by artist Daniel Steegmann Mangrane as part of Construire une Collection (Construct a Collection) exhibition at Villa Paloma, in Monaco

EMBRACING TRADITION A woman makes an intricate rangoli with rice paste in her courtyard on the occasion of Makar Sankranti, at Lankamura, ten kilometres away from Agartala

SCULPTED APPEAL British sculptor Anish Kapoor poses with his untitled silicon artwork at the Lisson Gallery in London Photos: UNI Compiled by Kh Manglembi Devi

RNI No. UPENG/2007/25763

Postal Regd. No. UP/GBD-197/2014-16 3ULQWHG RQ HYHU\ PRQWK 3RVWHG DW 6XE 3RVW 2IÃ&#x20AC;FH 6HFWRU 1RLGD

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