India legal 15 december 2015 by India Legal

Never-told-before explosive story of the CBI’s complicity with Lalu Yadav’s political enemies to nail him in the fodder scam By AP DURAI

NDIA EGAL I L

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December 15, 2015

STORIES THAT COUNT

THE PARIS

EFFECT SMRUTI Endemic intolerance

Inderjit Badhwar examines the Indian legal tangle on snooping France caught in a web of confusion Is Belgium the new terror theatre? US ponders efficacy of mass surveillance 08

CONSTITUTION DEBATE Modi’s balm 54

MURALI KRISHNAN Taslima Nasreen’s exclusive interview

AJITH PILLAI Indrani’s mess gets messier

DECEMBER 15, 2015

ISSUE. 07

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar

LEAD

The Paris Effect INDERJIT BADHWAR compares the American experience of mass surveillance in the Indian legal context

December 15, 2015

In an interview to MURALI KRISHNAN, Taslima Nasreen worries about the rapidly shrinking space for freethinkers, be it in Bangladesh or in India BOOKS

In defense of Lalu

A new book by top cop AP DURAI tells the inside story of how CBI conspired with his political opponents to nail the RJD supremo in the infamous fodder scam case. An excerpt

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Modi’s refusal to take a stand on the repeated instances of hate crime has fuelled fears that India is fast turning into a bigoted and narrow-minded country. SMRUTI stresses the need to fight back

“Let good sense prevail”

Circulation Manager RS Tiwari

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India under attack

INTERVIEW

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma

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SOCIETY

Paris is burning France takes stock of its options post 13/11 while the clamor for closing the doors on Syrian refugees grows. A report by Stratfor

The Belgium connection The trail of those wanted in the Paris attacks leads the police to Belgium, which has emerged as Europe's hotbed of Islamic terrorism, observes SEBASTIAN ROTELLA from ProPublica

Does this spying help? Analysis shows that when it comes to gleaning intelligence about attacks and tracking down jihadis, mass surveillance may not be a very effective tool. LAUREN KIRCHNER reports for ProPublica

14 16 22

DIPLOMACY

The dazzle of Koh-i-Noor With the legal route being used to bring this priceless gem back to India, will Britain give up its claim on it? SAJEDA MOMIN reports from London HERITAGE

Haunting memories

Ghost town Kuldhara, near Jaisalmer, was abandoned 200 years ago. It is now being restored and turned into a tourist hotspot, reports PRAKASH BHANDARI from Jaipur

STATES

POLITICS

Modi’s calming effect The two-day Constitution Debate in parliament was marked by acrimony and bitter mudslinging till Prime Minister Modi calmed ruffled feathers, says AJITH PILLAI

PROBE

Follow the money trail

54 56

Was the murder of Sheena Bora linked to the Rs 900 crore siphoned off by Indrani Mukerjea and her husband abroad? AJITH PILLAI reports

Farmers’ fight in Gujarat Amravati’s new awakening Farming out God’s estate

REGULARS

VOLUME. IX

60 64 68

Quote-Unquote...........................................................6 Ringside......................................................................7 National Briefs.............................................................25 Supreme Court............................................................28 Courts......................................................................... 30 International Briefs.......................................................45 Campus Update..........................................................78 Figure It Out.................................................................80 Wordly Wise.................................................................81 People......................................................................... 82

Cover Design: ANTHONY LAWRENCE

INDIA LEGAL December 15, 2015

QUOTE-UNQUOTE

“They (Indian Muslims) are free to go anywhere. They can stay here (in India). If they want to go to Bangladesh or Pakistan, they are free to go. Many of them have gone to Pakistan. But if they are persecuted there… Taslima Nasreen was persecuted there, she came here. If they come, we will give them shelter.” —Assam Governor PB Acharya, on the issue of

“Economic policy has no sense of direction and this is largely because Planning Commission, with all its deficiencies....was a positive dynamic instrument of steering the country’s economy.”

Indian Muslims facing persecution, The Indian

—Former PM Manmohan Singh, at a national convention in New Delhi

Express

“Almost 95 percent beef traders are Hindus. Still a man was lynched in Dadri because he ate beef...Eating habits have nothing to do with religion.” —Justice Rajinder Sachar, former chief justice of Delhi High Court, who headed a panel that recommended quota for Muslims in 2006, at a conference on world security and radical Islam

“It’s a new start for India and Nitish should now start making preparations to come to Delhi and become the prime minister and we will extend our full support to him for that.” —National Conference chief Farooq Abdullah to TV channels before attending Nitish’s swearing-in ceremony in Patna

“Of course, it is not joyous to make blood flow. But, from time to time, it is pleasant to see the blood of disbelievers.” —Abdelhamid Abaaoud, the suspected mastermind of Paris attacks, to a French-language recruiting video for ISIS, released shortly before his supposed death, The New York Times

“France would be unforgiving with the barbarians from Daesh.”

“There’s a lot more to be done, before our people feel secure enough to celebrate.”

—French President François Hollande, after the terror strikes in Paris

—Aung San Suu Kyi, NLD leader, on Myanmar’s recently concluded democratic elections, to BBC

December 15, 2015

Aruna

VERDICT Laws are spider webs through which the big flies pass and the little ones get caught. Honore de Balzac

INDIA LEGAL December 15, 2015

LEAD/ LETTER FROM THE EDITOR

INDERJIT BADHWAR

THE EFFICACY AND LEGALITY OF MASS SNOOPING Amitava Sen

URING this period of unusual national turbulence over the primacy of the constitution over partisan politics, we tackle two separate but related stories, across two continents and the huge security tribulations created in our world by mass terrorist attacks like the recent carnage in Paris. We all know this was not one of a kind. Ever since 9/11, terrorism has been ubiquitous. It has become worse and widespread notwithstanding the use of an ever widening range of deadly weapons. One bludgeon in this armamentarium has been the sharpening of intelligence gathering through snooping and surveillance and the preventive arrest and prolonged interrogation of suspects. But are these methods which, arguably, impinge on human rights and privacy, effective? The jury is still out on that one, but there is a raging debate in India and other democratic countries on how much freedom can be sacrificed at the altar of building a wall of impenetrable security. In fact, there is considerable debate in the US about the efficacy of mass surveillance. Lauren Kirchner recently reported in ProPu-

December 15, 2015

blica that government officials have been pointing to the terror attacks in Paris as justification for mass surveillance programs. CIA Director John Brennan accused privacy advocates of “hand-wringing” that has made “our ability collectively internationally to find these terrorists much more challenging”. Former National Security Agency and CIA director Michael Hayden said: “In the wake of Paris, a big stack of metadata doesn’t seem to be the scariest thing in the room.” But evidence, according to Kirchner, points to the startling conclusion that these programs may indeed have limited value in unearthing useful information. The word “useful” was defined by the US’s FBI general counsel as “those leads that made a substantive contribution to identifying a terrorist, or identifying a potential confidential informant”. An internal review of the Bush administration’s warrantless program—called Stellar Wind—reports Kirchner “found it resulted in few useful leads from 2001-2004, and none after that. In 2006, says ProPublica, she conducted a comprehensive study of all the leads generated from the content basket of Stellar Wind between March 2004 and January 2006 and discovered that

zero of those had been useful. Wrote The New York Times reporter Charlie Savage: “The program was generating numerous tips to the FBI about suspicious phone numbers and e-mail addresses, and it was the job of the FBI field offices to pursue those leads and scrutinize the people behind them. (The tips were so frequent and such a waste of time that the field offices reported back, in frustration, “You’re sending us garbage.”)

everal other intelligence gathering programs under review by reporters created no more than garbage. They included the US National Security Agency’s (NSA) bulk collection of phone records or were disguised as intelligence “intercepts” when, in fact, they were gathered from online databases. In 2014, New America Foundation echoed those conclusions, says Kirchner. It described the government claims about the success of surveillance programs in the wake of the 9/11 attacks as “overblown and even misleading”. An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged

in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods such as the use of informants, tips from local communities and targeted intelligence operations provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal. Edward Snowden’s leaks about the scope of NSA’s surveillance system in the summer of 2013 put government officials on the defensive. Many politicians and media outlets echoed the agency’s claim that it had successfully thwarted more than 50 terror attacks. ProPublica examined the claim and found “no evidence that the oft-cited figure is accurate”. Like in all functioning democracies, the debate over privacy versus security is also robust and a matter to which our justice system, particularly the Supreme Court, have paid much-needed attention. The matters to which I shall now refer may not be related directly to terrorism or security, but have often been cited as tools which will help prevent attacks and track down culprits. One significant and wellpublicized case that comes to mind is Justice K.S. Puttaswamy (Retd)…vs Union of India

Are methods like sharpening of intelligence gathering through snooping and surveillance and the preventive arrest and prolonged interrogation of suspects which, arguably, impinge on human rights and privacy, effective?

INDIA LEGAL December 15, 2015

LEAD/ LETTER FROM THE EDITOR

POLICY FAULTLINES (Right) A series of attacks by ISIS, including in Paris, has raised doubts about government surveillance

UNI

Like in all functioning democracies, the debate over privacy versus security is also robust and a matter to which our justice system, particularly the Supreme Court, have paid much needed attention.

December 15, 2015

(August 2015). It was ruled on by Justices J Chelameswar, SA Bobde and C Nagappan. I discuss this important issue in this article because not all readers are familiar with its implications and concerns for the basic concept of the right of citizens to be protected against gratuitous intrusions on their rights and liberties. The initial order in this case, points to the compassionate involvement of our judicial system in ensuring that “law and order” and the exigencies of “data gathering” cannot be used indiscriminately to curtail the rights of people living in this land. The Puttaswamy case relates to the government of India collecting and compiling both the demographic and biometric data of residents of this country (Aadhaar card) to be used for various purposes. The petitioners argued that the very collection of such biometric data is violative of the “right to privacy”. Some of the petitioners asserted that the right to privacy is implied under Article 21 of the constitution of India while other petitioners assert that such a right emanates not only from the Article but also from various other articles embodying the fundamental rights guaranteed under Part-III of the constitution of India. Contrarily, Attorney-General Mukul

Rohatgi submitted that in view of the judgments of the apex court in M.P. Sharma & Others v. Satish Chandra & Others—AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295—(decided by eight and six judges respectively), the legal position regarding the existence of the fundamental right to privacy is doubtful. He also submitted that in several subsequent decisions, the Supreme Court referred to “right to privacy”, contrary to the judgments in the above mentioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions.

he state argued: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. [See: M.P. Singh & Others v. Satish

Chandra & Others, AIR 1954 SC 300, page 306 para 18] “… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.” The contrarians submitted that world over where Anglo-Saxon jurisprudence is followed, “privacy” is recognized as an important aspect of the liberty of human beings. Additionally, they said, it was too late in the day for the Union of India to argue that the constitution of India does not recognize privacy as an aspect of the liberty under Article 21. At least to the extent that the right of a person to be secure in his house and not to be disturbed unreasonably by the State or its officers is expressly recognized and protected in Kharak Singh (supra) though the majority did not describe that aspect of the liberty as a right of privacy, “it is nothing but the right of privacy”. The judges opined: “We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigor and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent

The judges opined: “We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21...” unresolved contradiction in the law declared by this Court. “Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength. “We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.”

LANDMARK VERDICT (Above L-R) Justices J Chelameswar, SA Bobde and C Nagappan of the Supreme Court

n the interim, the Court instructed the government to give publicity in the electronic and print media, including radio and television networks, that it is not mandatory for a citizen to obtain an Aadhaar card. Additionally, the Court held that the Unique Identification Number of the Aadhaar card “will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The INDIA LEGAL December 15, 2015

LEAD/ LETTER FROM THE EDITOR

“Right to freedom of speech and expression is guaranteed under Article 19 (1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression...” —Supreme Court

December 15, 2015

HUMANE APPROACH The Supreme Court gave precedence to personal liberty and privacy while giving its ruling on Aadhaar cards

Aadhaar card may also be used for the purpose of the LPG Distribution Scheme…The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.”

ow seriously the Court takes matters of personal liberty and privacy is evident in some of the footnotes and citations in the judgment. One reads: “The right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21…The right to privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephones in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversa-

tion in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. “Right to freedom of speech and expression is guaranteed under Article 19 (1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.” To come back to the American experience of mass surveillance, ProPublica reports that local police departments have also acknowledged the limitations of this technique. Boston Police Commissioner Ed Davis admitted that federal authorities had received Russian intelligence reports about bomber Tamerlan Tsarnaev before the Boston Marathon bombings, but had not shared this information with local law agencies. Davis observed: “There’s no computer that’s going to spit out a terrorist’s name. It’s the community being involved in the conversation and being appropriately open to communicating with law enforcement when something awry is identified. That really needs to happen and should be our first step.”

editor@indialegalonline.com

LEAD/ Terrorism/Paris Horror/Aftermath

After Paris, France Con templates a Reckoning

Details are still emerging A GRIEVING COUNTRY as to precisely who was Parisians pay responsible for the tribute to 13/11 victims at one of Nov. 13 Paris attacks. the attack sites Sorting through the jumble of misinformation and disinformation will be challenging for French authorities, and for outside observers such as Stratfor. While the Islamic State has claimed credit for the attack, it is still uncertain to what degree the Islamic State core ANALYSIS French President Francois Hollande publicly organization was placed responsibility for the November 13 responsible for attack on the Islamic State, declaring it an act planning, funding or of war. This French response to the Paris attacks is markedly different from that of the directing it. It’s not clear Spanish Government following the March whether the attackers 2004 Madrid train bombings. Instead of were grassroots pulling back from the global coalition working against jihadism, it appears that the French operatives encouraged will renew and perhaps expand their efforts to by the organization like pursue revenge for the most recent assault. Paris Kosher Deli The precise nature of this response will be determined by who is ultimately found to be gunman Ahmed the author of the November 13 attack. Coulibaly, if the To date, there has been something akin to a division of labor in the anti-jihadist effort, with operatives were the French heavily focused on the Sahel region professional terrorist of Africa. The French have also supported coalicadres dispatched by tion efforts in Iraq and Syria, stationing six the core group or if the Dassault Rafale jets in the United Arab Emirates and six Mirage jets in Jordan. On attack was some November 4, Paris announced it was sending combination of the two the nuclear-powered aircraft carrier Charles de Gaulle to enhance ongoing airstrikes against

December 15, 2015

the Islamic State in Syria and Iraq. To date, French aircraft have flown more than 1,285 missions against Islamic State targets in Iraq, and only two sorties in Syria. France has numerous options for retaliation at its disposal, but its response will be conditioned by who was ultimately responsible. If it is found that the Islamic State core group was indeed behind the November 13 attack, France will likely ramp up its Syrian air operations. The skies over Syria, however, are already congested with coalition and Russian aircraft. With this in mind, the French may choose to retaliate by focusing instead on the Islamic State in Iraq, or perhaps even other Islamic State provinces in places such as Libya. Another option would be to increase French programs to train and support antiIslamic State forces in Iraq and Syria, or even to conduct commando strikes against key leadership nodes. France also has the option of deploying an expeditionary force like it did in the Sahel, although that would probably require outside airlift capacity from NATO allies, especially the United States.

EUROPEAN RAMIFICATIONS The Paris attacks occurred during a Europewide political crisis over migrant flows from the Middle East, Asia and Africa. A Syrian passport was found near the body of one of the Paris attackers, prompting a Greek official to say November 14 that the name on the document belonged to a person who passed though Greece in October. This news means that a number of politicians critical of the European Union's response to the immigrant crisis will amplify their disapproval. In particular, advocates who want to end the Schengen agreement, which eliminated border controls in Europe, will use Paris to support their cause. This has already begun. Poland became the first country to link the Paris attacks to the uptick in immigration. On November 14, Polish Minister for European Affairsdesignate Konrad Szymanski said the Paris attacks make impossible the implementation of an EU plan to distribute asylum seekers across the Continental bloc. As expected, France's National Front party also demanded the end of the Schengen agreement. In a televised speech, party leader Marine Le Pen said France has to “recapture control of its borders.” In Germany, Bavarian Prime Minister Horst Seehofer said the Paris attack demonstrates that border controls are more necessary than ever. Seehofer has been very critical of the German government's handling of the refugee crisis, demanding permanent border controls as well as faster repatriation of asylum seekers. The Paris attack will likely strengthen his position and further weaken the government of Chancellor Angela Merkel, which was already facing internal dissent because of the migration crisis. In recent weeks Germany has seen an increase in antiimmigrant violence, including arson attacks against refugee shelters. The November 13 attacks may encourage more extremist groups across Europe to attack asylum seekers. The anti-Schengen camp will feel vindicat-

Photos: UNI

ed by a parallel event that took place in southern Germany last week, when a Montenegrin citizen was arrested while allegedly driving to Paris with several weapons. While German police have not established a direct connection between this incident and the November 13 attacks, they have said that a link cannot be ruled out. The fact that this man was from Montenegro—a country in the Western Balkans—and made it to Germany in his car will strengthen the demands for stricter border controls along the so-called Balkan route of migration, which connects Greece to Northern Europe. The Paris attacks will therefore improve the popularity of anti-immigration parties in many European countries, and continue to weaken popular support for the Schengen agreement. Several countries, including Germany, Sweden, Slovenia and Hungary had already re-established border controls because of the immigration crisis. Hungary and Slovenia have gone as far as building fences along their borders. After the November 13 attacks, most EU governments will find it hard to justify a policy of open borders. IL

Courtesy Stratfor

THE CRACKDOWN Police patrol a spot near Eiffel Tower the morning after the November 13 attacks

The Paris attacks will improve the popularity of anti-immigration parties in many European countries, and continue to weaken popular support for the Schengen agreement.

INDIA LEGAL December 15, 2015

LEAD/ Terrorism/Paris Horror/The Clues

Trail of Paris Atta ckers Winds to Terrorism’s Long time Outpost

As a pre-dawn raid on November 18 outside Paris targets suspected mastermind of November 13 attack, his roots point to the shadow Belgium casts over the terror threat in Europe by Sebastian Rotella

Update, Nov. 19, 2015: Paris prosecutors confirmed today that Abaaoud had been "formally identified" as one of the dead at the scene of the police raid and gun battle Wednesday in the suburb of St. Denis. His corpse had been disfigured by bullets and shrapnel from a bomb explosion, prosecutors said. Police were still hunting for fugitive Salah Abdeslam, who allegedly took part in the attacks and oversaw the rental of cars, safe houses and other logistics. Belgian police conducted new searches in the Brussels area today as part of a massive investigation. Abdeslam fled to Belgium after last Friday's attacks with the help of two accomplices who are under arrest. "We believe Salah is here," a senior Belgian counterterror official said today. "He is our top concern."

ARIS — Before a SWAT team stormed a tenement in the Belgian city of Verviers in January, police used listening devices to monitor their targets inside: Belgian jihadis who had returned from Syria to attack a local police station in the name of the Islamic State. Police gunned down two suspects during the pre-dawn firefight, foiling the plot. But a chilling detail stuck with the Belgian counter-terror investigators who tracked down the plotters with help from French and U.S.

December 15, 2015

The leading role of Belgians in the Paris massacre highlights the large shadow cast by Belgium on the map of terror in Europe during the past two decades.

Mastermind dead

Photos: UNI

intelligence. As investigators listened, the militants responded to the police assault with a ferocity forged in the battlegrounds of the Middle East. “They were talking about their plans to commit violence here,” a senior Belgian counterterror official recalled in a recent interview. “The police flashbang grenade goes off. And immediately these two start firing their AK-47s. No hesitation, no panic. These are guys with combat experience. They were ready to fight and die.” As the fast-paced investigation of the rampage in Paris that left at least 129 people

dead unfolded, elite tactical teams carried out another pre-dawn raid Wednesday on suspected terrorists holed up in an apartment outside the French capital. The target was the accused Belgian mastermind of the thwarted effort to attack the police station in Belgium in January who is also believed to have played a central role in directing the Paris attacks last week: Abdelhamid Abaaoud. Two suspects died in the gunfight this morning, one of them a woman who detonated a bomb vest, authorities said. Five SWAT officers were wounded. Police arrested five

suspects. The target of the raid was Abaaoud, who investigators now believe may have made a daring return from the Islamic State’s stronghold in Syria to lead the Paris attacks in person. Authorities had not yet announced Wednesday morning whether he was among those killed or captured, or if he remained at large. (Update: Police later confirmed that Abaaoud died in the raid.) Abaaoud, 27, was a stick-up man-turnedterror kingpin from the tough Brussels suburb of Molenbeek, which has been raided repeatedly by Belgian counterterrorism investigators in the days since the attack.

NO ROOM FOR TERROR Policewomen search residents of Molenbeek, a Brussels suburb, on way to a memorial gathering for the Paris attack victims

INDIA LEGAL December 15, 2015

LEAD/ Terrorism/Paris Horror/The Clues

UNI

ON THEIR TOES NOW Cops track movement of vehicles near Paris's Le Carillon restaurant

December 15, 2015

The extent of his role in the Paris massacre is not yet clear, but he had longtime links to at least two of the suspected attackers, according to European counter-terror officials. Abaaoud’s name had already surfaced in connection with previous plots targeting France and Belgium. In one instance that directly foreshadows Friday’s attack in Paris, French police in August arrested a militant who had trained in Syria. He told authorities that Abaaoud had directed him to attack live music venues in France, officials say. There are also suspicions that the Belgian was involved in a deadly shooting at the Jewish museum in Brussels last year, as well as the foiled attack on a Paris-bound train from Belgium by a Moroccan gunman who was subdued by a trio of vacationing Americans this summer. The leading role of Belgians in the Paris massacre highlights the disproportionately large shadow cast by Belgium on the map of terror in Europe during the past two decades.

Belgium featured in a wave of bombings in France by Algerian-dominated groups in the 1990s. Belgium-based terrorists have been active in al Qaida: killing an anti-Taliban warlord in Afghanistan two days before the September 11 attacks, plotting to bomb the U.S. embassy in Paris, and sending jihadis to Pakistan, Africa and U.S.-occupied Iraq in the 2000s. In a practice seen again in the Paris plot, operatives in the Franco-Belgian networks move back and forth across the border with speed and agility, outpacing law enforcement. “Things are easier for terrorists in Belgium than they are in France,” said Commandant Mohamed Douhane of the French national police. “They use Belgium as an outpost.” MOUNTING THREATS November 13’s tragedy in Paris was an attack foretold. During interviews earlier this year,

French and Belgian terror chiefs warned that a swarm of threats had reached overwhelming levels. They identified Abaaoud as one of several senior Francophone militants relentlessly plotting attacks on Europe from Syria. “The threat is so high,” a French counterterror chief said during an interview in the spring. “There will be new attacks. There is a permanent fatwa from the Islamic State: Attack the West.” As disturbing intelligence reports piled up in recent months, French and U.S. counterterror agencies teamed up to target suspected European plotters. Complicating matters, the threat had multiple faces. Al Qaida in Yemen had overseen the attack on the offices of Charlie Hebdo magazine in January. Although the Islamic State has many more recruits than al Qaida’s affiliate in Syria, the latter group includes veterans who have been hatching plots against Western targets since the early 2000s, when they operated from refuges in Afghanistan and Pakistan. “They are a direct threat and, while smaller than the Islamic State, have bigger plans,” the French counterterror chief said. “They want to do more spectacular attacks, [a] more choreographed style of attacks as opposed to shootings.” U.S. drone strikes this summer killed two top names on the al Qaida list who kept French spymasters awake at night: convert David Drugeon, an expert bomb-maker, and Said Arif, who had been linked to plots against France dating to 2000. “There has been some progress made in getting guys with strong connections and who were among the most operationally capable,” a U.S. counterterror official said. “But clearly the bench is pretty deep.” Air strikes also targeted Abaaoud and two Frenchmen thought to be actively involved in Islamic State plotting against France, according to U.S. and European counterterror officials. In October, a French bombing raid on the Syrian city of Raqqah missed Salim Benghalem, a 31-year-old Parisian ex-convict known for beheadings and sadistic treatment of hostages. Another Islamic State Frenchman who dodged an air strike was Boubaker el-Hakim, who is suspected of

assassinating two political leaders in Tunisia in 2013. Both jihadis have ties to the Charlie Hebdo attackers. About 2,000 French militants have gone to Syria, the single largest contingent of fighters from Europe. French-speaking Tunisians and Moroccan militants in Syria are thought to number close to 10,000. But the more than 500 Belgians are the largest proportionate group of Europeans. Most Francophone jihadis join the ranks of the Islamic State in Syria, where they live and fight together. They see France as their top target. FOR ISIS, SHIFTING STRATEGIES The Islamic State’s war on the West differs from the hands-on plotters of al Qaida, whose foreign operations unit has traditionally hatched plots in Pakistani and Yemeni hideouts and directed attackers to their targets. Those plots often involved bombs and specific, highly symbolic targets. Instead, the primary focus of the Islamic State, whose leaders are mostly Iraqi and Syrian, has been conquest of turf and the consolidation of their self-declared caliphate. The Islamic State has used a social media barrage to inspire jihadis abroad to carry out strikes without training or direct contact. The group has also given its trusted foreign fighters considerable autonomy to develop attacks in the West, delegating details such as target selection to militants who best know their homelands, according to European and U.S. intelligence officials. “The Islamic State’s general directive has been to do attacks,” the French counterterror chief said, “and the Europeans propose projects.” This year, however, that dynamic seems to have evolved in response to an offensive by the coalition fighting against the Islamic State, according to U.S. and European

The IS war on the West differs from the hands-on plotters of al Qaida, whose foreign operations unit has traditionally hatched plots in Pakistani and Yemeni hideouts and directed attackers to their targets.

INDIA LEGAL December 15, 2015

LEAD/ Terrorism/Paris Horror/The Clues

In an interview, a senior Belgian law enforcement official said the swagger and savagery of the Islamic State has a disturbing appeal among aimless young criminals in Molenbeek and other neighborhoods.

THE MAN ON THE WALL A Belgian special forces policeman on an apartment block during a raid in search of terrorists

counterterror officials. They said the Islamic State has developed a kind of external operations unit that may be behind a flurry of large-scale attacks in Paris, Egypt and Turkey, officials said. “Months ago they created a department to coordinate the jihad overseas based on the foreign fighter elements,” a senior Spanish intelligence official said. “They weren’t as interested in that before. They were interested in the territory.’’ ‘THEY ARE RUINED PEOPLE’ Belgium — small, prosperous, tolerant — has historically been a hub for espionage, arms trafficking, organized crime and extremist activity. The country has a generous welfare state and lacks the huge public housing projects that breed crime, alienation and extremism in France. Nonetheless, the integration of Muslims in Belgium remains problematic. Successive jihads in Afghanistan, Iraq and Syria have radicalized scores of young, disaffected, working-class Muslims. Most are of North African descent and have criminal pasts; the groups they join grew out of longtime networks active in Europe and the Muslim world. Belgium has skilled counterterror officers who know the extremist underworld, including a number of investigators of Muslim

descent. Despite the intensity of the terror threat, the bureaucracy puts constraints on them. The government has scrambled to beef up counterterror forces in recent years, with one unit tripling in size. It is hard to keep suspects in jail without overwhelming evidence, and sentences for terrorism are short —as in the rest of Europe. In an interview, a senior Belgian law enforcement official said the swagger and savagery of the Islamic State has a disturbing appeal among aimless young criminals in Molenbeek and other neighborhoods. “They go to Iraq and Syria because there they will be somebody,” he said. “Here they are nobody. They are told that if they join the Islamic State they will get to drive a nice car, get women, they won’t have to pay in the shops down there. They will be badass warriors.” The Belgian official described a police search of the home of three brothers who all joined the Islamic State and have been implicated in decapitations and other violence in Syria. Their father had a well-paid job with a U.S. automotive company. Each brother had his own room stocked with computers, video games, clothes and other consumer goods, the law enforcement official said. “They don’t work; they live with their family into their 20s,” he said. “They manipulate the welfare system for money; they don’t study. They go to Syria, and they come back with PTSD. They come back after they saw killing and raping. What are you supposed to do to cure them? They are ruined people. Game over.” RISE OF A PARIS PLOTTER Abaaoud’s trajectory is emblematic. He is of Moroccan descent, a wiry man with an engaging grin. Like many youths in Molenbeek, he got involved in low-level gangsterism and was arrested for a hold-up along with Salah Abdeslam of Molenbeek, who is now a fugitive suspected of renting cars and safe houses for the three Paris attack teams. Abaaoud also had ties to Abdeslam’s brother, who would die in one of the Paris suicide bombings. Abaaoud joined the Islamic State and went to Syria, where he became notorious for a video in which he hauled a pile of corpses

with a tractor and joked about it. In late 2014, intelligence agencies picked up communications indicating he wanted to carry out an attack back in Belgium. U.S., Belgian, French and German intelligence tracked the plotters for three or four months, officials say. “The Belgians proposed an action to Daesh [IS], and they said yes,” the senior French counterterror official said. Islamic State bosses provided $5,000 to help finance the operation, Belgian investigators said. Abaaoud dispatched Sofiane Amghar, 26, and Khalid Ben Larbi, 23, who had fought in a special squad of fighters in Syria, according to Belgian investigators. Amghar, a Molenbeek recruit, posted a fake obituary about himself online to cover his tracks as he made his way back. Ben Larbi returned via the United Kingdom. They set themselves up in a safe house in Verviers. Their plot involved using stolen police uni-

forms to storm a police station in the Brussels area. Three plotters stockpiled weapons in the safe house, monitored by police. The SWAT team went into action because an attack seemed imminent, officials said. “We heard them speaking about projects and manipulating weapons, it was obvious they were about to do something,” a Belgian law enforcement official said. “One of them always stayed awake, standing guard. The stun grenades went off at the front room window, but they were lucky because they were in back and weren’t stunned. The firefight lasted 10 minutes.” Abaaoud, however, had been directing his fighters by phone from Greece. He melted away. And if the allegations are true, he kept launching human missiles at France until his dreams of devastation came true on a Friday night in Paris. IL

KEEPING THE CITY SAFE Belgian soldiers walk past a Christmas tree at Brussels’ Grand Place in the wake of the deadly Paris attacks

Courtesy ProPublica

Photos: UNI

December 15, 2015

INDIA LEGAL December 15, 2015

LEAD/ Terrorism/Paris Horror/Intelligence Snooping

What’s the Evidence

Mass Surveillance Works? Not Much

Officials are again pointing to the need for mass surveillance to take down terrorists. Here’s what we know about how well it works by Lauren Kirchner

NEED OF THE HOUR CIA director John Brennan is all for implementation of this security methodology

The program was generating numerous tips to the FBI. The tips were so frequent and such a waste of time that the field offices reported back, in frustration, “You’re sending us garbage.”

URRENT and former government officials have been pointing to the terror attacks in Paris as justification for mass surveillance programs. CIA Director John Brennan accused privacy advocates of “hand-wringing” that has made “our ability collectively internationally to find these terrorists much more challenging”. Former National Security Agency and CIA director Michael Hayden said, “In the wake of Paris, a big stack of metadata doesn’t seem to be the scariest thing in the room.” Ultimately, it’s impossible to know just how successful sweeping surveillance has been, since much of the work is secret. But what has been disclosed so far suggests the

December 15, 2015

Photos: UNI

programs have been of limited value. Here’s a roundup of what we know. An internal review of the Bush administration’s warrantless program – called Stellarwind – found it resulted in few useful leads from 2001–2004, and none after that. New York Times reporter Charlie Savage obtained the findings through a Freedom of Information Act lawsuit and published them in his new book, Power Wars: Inside Obama’s Post–9/11 Presidency: [The FBI general counsel] defined as useful those [leads] that made a substantive contribution to identifying a terrorist, or identifying a potential confidential informant. Just 1.2 percent of them fit that category. In 2006, she conducted a comprehensive study of all the leads generated from the content basket of Stellarwind

between March 2004 and January 2006 and discovered that zero of those had been useful. In an endnote, Savage then added: The program was generating numerous tips to the FBI about suspicious phone numbers and e-mail addresses, and it was the job of the FBI field offices to pursue those leads and scrutinize the people behind them. (The tips were so frequent and such a waste of time that the field offices reported back, in frustration, “You’re sending us garbage.”) In 2013, the President’s Review Group on Intelligence and Communications Technologies analyzed terrorism cases from 2001 on, and determined that the NSA’s bulk collection of phone records “was not essential to preventing attacks”. According to the group’s report: In at least 48 instances, tradi-

tional surveillance warrants obtained from the Foreign Intelligence Surveillance Court were used to obtain evidence through intercepts of phone calls and e-mails, said the researchers, whose results are in an online database. More than half of the cases were initiated as a result of traditional investigative tools. The most common was a community or family tip to the authorities. Other methods included the use of informants, a suspiciousactivity report filed by a business or community member to the FBI, or information turned up in investigations of non-terrorism cases. Another 2014 report by the nonprofit New America Foundation echoed those conclusions. It described the government

FEAR RULES French police engaged in rescue operations at one of the sites of the Paris terror attacks

INDIA LEGAL December 15, 2015

LEAD/ Terrorism/Paris Horror/Intelligence Snooping

UNDER TERROR’S SHADOW A Paris attack victim near Bataclan concert hall

An analysis of 225 individuals recruited by al-Qaeda or a like-minded group, and charged in the US since 9/11, demonstrates that traditional methods provided the initial impetus for investigations in the majority of cases.

December 15, 2015

claims about the success of surveillance programs in the wake of the 9/11 attacks as “overblown and even misleading”. An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods, such as the use of informants, tips from local communities, and targeted intelligence operations, provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal. Edward Snowden’s leaks about the scope of the NSA’s surveillance system in the summer of 2013 put government officials on the defensive. Many politicians and media outlets echoed the agency’s claim that it had successfully thwarted more than 50 terror attacks. ProPublica examined the claim and found “no evidence that the oft-cited figure is accurate”. It’s impossible to assess the role NSA surveillance played in the 54 cases because, while the agency has provided a full list to Congress, it remains classified. The NSA has publicly discussed four cases, and just one in which surveillance

NATIONAL BRIEFS

made a significant difference. That case involved a San Diego taxi driver named Basaaly Moalin, who sent $8,500 to the Somali terrorist group al-Shabab. But even the details of that case are murky. From the Washington Post: In 2009, an FBI field intelligence group assessed that Moalin’s support for al-Shabab was not ideological. Rather, according to an FBI document provided to his defense team, Moalin probably sent money to an al-Shabab leader out of “tribal affiliation” and to “promote his own status” with tribal elders. Also in the months after the Snowden revelations, the Justice Department said publicly that it had used warrantless wiretapping to gather evidence in a criminal case against another terrorist sympathizer, which fueled ongoing debates over the constitutionality of those methods. From The New York Times: Prosecutors filed such a notice late Friday (November 13) in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan. Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. A criminal complaint against him showed that much of the government’s case was based on intercepted e-mails and phone calls. Local police departments have also acknowledged the limitations of mass surveillance, as Boston Police Commissioner Ed Davis did after the Boston Marathon bombings in 2013. Federal authorities had received Russian intelligence reports about bomber Tamerlan Tsarnaev, but had not shared this information with authorities in Massachusetts or Boston. During a House Homeland Security Committee hearing, Davis said: “There’s no computer that’s going to spit out a terrorist’s name. It’s the community being involved in the conversation and being appropriately open to communicating with law enforcement when something awry is identified. That really needs to happen and should be our first step.” IL

Courtesy ProPublica

More courts than judges ue to the logjam caused by the adoption and subsequent repeal of the National Judicial Appointments Commission (NJAC) Act, India may find itself in a situation where it has more courtrooms than judges, reports The Times of India. No judicial appointments were made in any of the 24 high courts for nearly a year following the passage of the NJAC Act in December, 2014. After the repeal of the NJAC Act and the restoration of

the collegium system, no new appointments have been made so far, even as 2,000 new courtrooms are expected to be completed by the end of the year. Currently, there are 16,400 court halls, including rented premises in the country, and around 15,600 judges. Out of the high courts’ sanctioned strength of 1,017 posts for judges, 371 are vacant. In the subordinate and district judiciary, 4,580 posts of judges are vacant.

Center backpedals on Swamy prosecution

early a month after saying it supported the prosecution of BJP leader Subramanian Swamy for alleged “hate remarks” in his book Terrorism in India, the central government backpedaled from its stance in the Supreme Court. The ministry said it not feel that Swamy’s book constitutes hate speech, and that the book is the subject matter of legal challenge before trial courts. The Indian Express reported that on October 28, the home ministry (MHA) had told the apex court that Swamy violated IPC provisions with his writing. The MHA had filed its response to defend the validity of Section 153A of the IPC, which makes promoting enmity between different groups on the basis of religion or race an offense. Following the registration of various cases against him under Section 153A and similar IPC provisions relating to hate speech, Swamy challenged the validity of Section 153A and similar provisions in the apex court, on grounds that they violated the fundamental right to freedom of speech.

Maharashtra’s petrol woes aharashtra’s legal metrology department has threatened criminal action against state-owned oil companies—Hindustan Petroleum Corporation Ltd, Bharat Petroleum Corporation Ltd and Indian Oil Corporation Ltd—for using “outdated technology” for measuring and dispensing fuel, as a result of which retail outlets receive less fuel while being forced to pay for the full quantity, reports The Indian Express. To curb this problem, the state govern-

Nirbhaya’s parents move NHRC he National Human Rights Commission (NHRC) received a petition from the parents of the victim of the December 2012 Delhi gang rape, saying that the juvenile offender in the rape and murder of their daughter, who will be released on December 15, continues to be a threat to society. The NHRC has issued notices to the center and the Delhi government on the complaint. The Times of India reported that the parents asked the NHRC to recommend that the govern-

ment is planning an advertisement campaign to warn customers of the malpractices by companies and petrol dealers.

ment prepare a plan to protect citizens from such delinquent juveniles upon their release. They urged that laws requiring states to monitor and track convicted sex offenders following their release, like those in countries like the US and Canada should be implemented in India. Concluding that the parents’ fears were well-founded and needed to be looked into, NHRC asked the Delhi government to inform it whether any post-release plan had been prepared in the case and whether the juvenile was recently subjected to psychiatric assessment.

INDIA LEGAL December 15, 2015

SUPREME COURT

Women’s rights sacrosanct T

he Supreme Court recently came up with some significant judgments in favor of women. In one of the verdicts, the apex court made it clear that women, including widows, have an absolute right over assets given to them under “maintenance”. After a woman’s death, her husband’s family can’t claim it back. The Court further held that she is also well within her rights to leave it in anybody’s name after her death. In another significant judgment, the Court ruled that women have total rights over “streedhan” or all things

they got before and after marriage, even after being legally separated from their husbands. In case, they are deprived of valuables by their husbands or in-laws, they will be liable for criminal prosecution under the Domestic Violence Act, the Court said. Focusing on the concept of “judicial separation”, the Court clarified that under that arrangement, the concerned man and the woman are still husband and wife, and the woman could take the help of the Act to assert her rights over “streedhan”.

Navy gets relief C

onsidering that there was no avenue under which women short service commission officers could be awarded permanent commission in the Navy, the apex court struck down a Delhi High Court order. The High Court, while accusing the Navy of “sexist bias” and “gender discrimination”, had asked it to award permanent commission to such officers. The center knocked the doors of

UP to pay compensation he Supreme Court slammed the UP government for procedural lapses that led to the sacking and eventual arrest of a forest officer in UP on false charges. The Court asked the state government to pay him `10 lakh as compensation for mental agony, loss of reputation and financial loss. It was during Mulayam Singh Yadav’s regime in 2003 that Dr Ram Lakhan Singh, an Indian Forest Service officer, had to suffer such ignominy.

December 15, 2015

he apex court directed Vodafone India, India’s number two telecommunications company, to pay `2,000 crore to the Department of Telecommunications (DoT). If the UK-based company does that, it will be able to re-start a three-year-old process of merger of its six group units in India for operational efficiency. The merger process had come to a grinding halt due to a payment dispute with DoT as Vodafone needed a license from it to proceed with the merger. The apex court asked Vodafone to cough up the amount before the merger takes place. Whether Vodafone needs to pay more to settle the payment dispute once and for all will depend upon the result of litigation on the matter in lower courts. The company had already received a favorable order from

MP governor under scanner A

the Supreme Court, objecting to the High Court order. It held that the High Court had made a mistake in concluding that the Navy was against women’s progress. The apex court also issued notices to those officers, both retired and serving, who had approached the High Court seeking an order to the Navy to give them permanent commission.

Vodafone to proceed with merger

His fault was that he had refused to comply with the CM’s “diktat” that he take steps for the “denotification” of Benti sanctuary in Kunda, Pratapgarh district. That is what the officer alleged. Singh was then a member of the National Board of Wildlife. The Benti sanctuary was earlier “notified” by the previous Mayawati dispensation. According to Lakhan Singh, he had to face an inquiry under a “false” case slapped by a Samajwadi Party MLA.

cting on petitions by a group of lawyers from Madhya Pradesh, the Supreme Court asked the state governor Ram Naresh Yadav as well as the center as to why Yadav

the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) over `6,930 crore demanded by DoT for the merger. TDSAT had rejected the amount but said that Vodafone must abide by the amount decided by the lower courts. TDSAT’s decision was challenged by DoT in the apex court. The court finally arrived at a overall figure of `2,000 crore.

should not be sacked from his post. The court sought the response in connection with the Vyapam scam in the state. Allegations have been flying thick and fast that Yadav was a party to the scam. The court also asked the Madhya Pradesh government and the governor to respond to a petition that questioned the Madhya Pradesh High Court’s order quashing FIR against the governor. The lawyers had raised objections to Yadav occupying the august position despite his name cropping up in the scam. Considering the gravity of the issue, the apex court will also take up the issue of the need to frame fresh rules for a governor’s removal, in case he or she faces grave allegations.

Culling stray dogs

hile hearing pleas objecting to the decision of mass killing of stray dogs by the Thiruvananthapuram Municipal Corporation, the apex court held that a balance had to be arrived at between protecting animal rights and saving human lives. Taking a grim view of the senseless way in which stray dogs were being culled, the Court, however, in its interim order allowed civic authorities to cull only dogs which were irretriev-

ably ill, wounded or suffering from rabies and could pose a danger to humans. The Court further added that the ruling will hold true for any contrary order by high courts on the matter. It alluded to the Prevention of Cruelty to Animals Act 1960, as well as Animal Birth Control (Dog) Rules 2001. The Court observed that it was the solemn duty of all local bodies to strictly abide by laws on stray dogs and provide them proper infrastructure. It also wanted a comprehensive information from states on what was being done for their welfare.

— Compiled by Prabir Biswas; Illustrations: UdayShankar INDIA LEGAL December 15, 2015

COURTS

All TERI offices open for Pachauri

Crackdown on illegal hoardings

Delhi trial court permitted TERI director-general RK Pachauri, accused of sexually harassing a woman colleague, to enter the think-tank’s headquarters at Lodhi Road, New Delhi, as well as the Gurgaon office. This is in light of the fact that the colleague has left the organization. The order came after Pachauri pleaded for the relief. The court thus changed its earlier verdict that had debarred Pachauri from entering both the

he Bombay High Court stopped just short of issuing a contempt notice against political parties for continuing with the practice of putting up illegal hoardings, posters and banners throughout Maharashtra. The Court was upset that the NCP, Congress, Shiv Sena and MNS continue to flout laws despite filing affidavits to the contrary, and in total disregard of notices from Court commissioners. They were appointed by the High Court to stop the practice. The violation was brought to light by

HC clears test match n a huge face-saving relief for the Delhi & District Cricket Association (DDCA), the Delhi High Court removed bottlenecks that had put a question mark on the fourth India-South Africa Test match slated from December 3. The match will be played at the Ferozeshah Kotla Stadium in Delhi. The interest of the players and cricket fans was paramount for the High Court and the sanction was only an interim order, it said, asking the Delhi government to give approval for the match. It also ordered the South Delhi Municipal Corporation (SDMC) to give a provisional occupancy certificate to DDCA. The court appointed retired justice Mukul Mudgal to keep a close watch on the arrangements for the test match. DDCA was to pay, as an interim measure, `50 lakh to SDMC as property tax. The total amount it owes to SDMC is more than `1 crore. Besides, DDCA had to pay `1 crore to Delhi government’s excise department as entertainment tax. The state government had demanded `24 crore from DDCA as outstanding dues.

December 15, 2015

offices while allowing him to walk into offices in other locations. This was in addition to the anticipatory bail granted to him. The observation by the sessions court that Pachauri did not take undue advantage of the liberty granted to him earlier also worked in his favor. The court felt that there was no reason to believe that the former D-G would impair the probe. The alleged victim of sexual harassment left TERI in November.

Relief for Greenpeace he Madras High Court did not approve the cancellation of registration of Greenpeace India by the Tamil Nadu Register of Societies (RoS) and put a stay on the latter’s order. It ruled that the NGO would operate in India until the judiciary gave its final verdict on charges of financial improprieties slapped on it by the center. The Court’s ruling came after Greenpeace India approached it following the action taken by RoS. In April this year, the center had put on hold the NGO’s registration in India for six months. Greenpeace was not allowed to source funds from abroad and even its accounts in

David Headley to face Mumbai court

hether he does appear or not is a million dollar question, but a Mumbai sessions court has summoned David Coleman Headley as an accused in the 26/11 terror attacks in the metropolis. Summons have been shot off to the concerned authorities in the US and Headley will have to face the court in a hearing through video-conferen-

India were frozen. The government claimed that the NGO was not transparent about its money flow from abroad and was using the money without the center’s permission. Greenpeace had denied the allegations. It even approached the Court and got a favorable order on drawing money from domestic accounts. The protracted legal battle between Greenpeace and the center continues.

cing on December 10. If that happens, Pakistan-born Headley will hold the distinction of being the first foreign national to appear through a video link in a terror trial in India. Headley, a US national, was pronounced guilty by a US court for conspiring in the 26/11 Mumbai attacks and is serving a 35-year prison sentence.

two PILs, which also alleged that as a result, private and public properties were being vandalized. The Court also asked political parties to assign one worker for each ward in the state for removing hoardings. It also said that parties which put up illegal hoardings be denied direct permission from authorities on a regular basis. Political parties which had promised to follow rules must furnish the addresses of party workers who were displayed on illegal hoardings so that action could be taken against them.

Nothing legal about it he Madras High Court did not offer legal sanctity to a marriage between a Hindu woman and a Christian man. The Court observed that one of them should have converted to solemnize the marriage as per Hindu or Christian customs. Or else, the marriage should have been registered under the Special Marriage Act, 1954, if they were against conversion. However, the Court allowed the woman to go with the man as she was a major.

Go ahead with Rail Neer he Railways got a thumbs up from the Bombay High Court on its circular that only Rail Neer be stocked and sold at railway stations and platforms. IRCTC manufactures and supplies the packaged drinking water brand. The High Court did not buy the argument of the Indian Railway Caterer’s Association that the Railways was trying to have a stranglehold on the supply of drinking order. It also did not agree with their contention that consumers will have limited options. The Court observed the order was in no way affecting their business.

— Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL December 15, 2015

SOCIETY/ Growing Intolerance

Idea of India under Threat

There have been numerous acts of intolerance in India, a country known for its secular and inclusive nature. But with PM Modi preferring to embrace silence, there are fears of where this will lead to By Smruti

December 15, 2015

N the 18 months that Prime Minister Narendra Modi has led India, he has attempted to package the country in various acronyms and pithy slogans, mainly for his audiences abroad. Yet, the one slogan, more precisely a phrase, which has come to qualify India in recent weeks, is the one that must rile him the most—“intolerant India”. It threatened not only Modi’s carefully packaged marketing of the country, but more importantly, it cleaved into the very idea of India as a pluralist

and secular democracy. Now, as the government braces up for another parliament session this winter, the signs are on the wall. The opposition, especially the Congress under a resurgent Rahul Gandhi, is expected to corner the Modi government on intolerance. The defeat of the BJP-led NDA in the Bihar assembly elections to the Nitish Kumar-led mega-alliance has provided the necessary boost to opposition parties to press home the point about the country turning intolerant.

GROWING PROTESTS The government will undoubtedly unleash its defense in parliament and attempt to bolster it outside. After all, Finance Minister Arun Jaitley dismissed the resistance against intolerance and bigotry as “manufactured rebellion” earlier. Others will attempt to dismiss the movement too. But this is more than a political issue. The resistance to the threat of India turning into a bigoted, fanatical and narrow-minded society has gathered social momentum and brought a wide range of

SILENT SPECTATOR Vehicles were set on fire during violent clashes between Hindus and Muslims in Vadodara; Modi’s refusal to speak up in the face of such incidents is worrying

INDIA LEGAL December 15, 2015

SOCIETY/ Growing Intolerance

“For the first time, Kiran said, should we move out of India? That’s a disastrous and big statement for Kiran to make to me. She fears for her child. She fears about what the atmosphere around us will be.” —Aamir Khan, actor

“It is stupid to be intolerant and this is our biggest issue, not just an issue… Religious intolerance and not being secular in this country is the worst kind of crime that you can do as a patriot.” —Shah Rukh Khan, actor protestors out into the public domain. Two incidents in recent times acted as catalysts: the cold-blooded murders of rationalists Dr MM Kalburgi in Dharwad, Karnataka, and Govind Pansare in Kolhapur, allegedly by right-wing Hindu fundamentalists on August 30, and the horrific lynching of Mohammed Akhlaq in Dadri, near Delhi, following allegations that he and his family had consumed and stored beef in their house. The latest to voice his insecurity about an intolerant India has been actor Aamir Khan, who on November 23, said: “Kiran (wife) and I have lived all our lives in India. For the first

December 15, 2015

time, she said, should we move out of India? That’s a disastrous and big statement for Kiran to make to me. She fears for her child. She fears about what the atmosphere around us will be. She feels scared to open the newspapers everyday. That does indicate that there is a sense of growing disquiet,” he said. “As an individual, as a citizen, certainly I have also been alarmed, I can’t deny it, by a number of incidents,” he said, and added: “For us, as Indians, to feel a sense of security, two-three things are important. The sense of justice gives a lot of security to the common man. The second thing, that is important, are

the people who are the elected representatives… we look upon these representatives to take a strong stance, make strong statements and speed up the legal process to prosecute such cases. It doesn’t matter who the ruling party is.” PUBLIC STAND The resistance started with writers returning their awards to the Sahitya Akademi to symbolically protest against its studied silence as writers’ freedom came under the shadow of guns and open threats after Kalburgi’s murder. Soon, scientists, a community that rarely takes a public stand on social issues, joined their voices to the protests. Shah Rukh Khan too spoke up. As many of the protestors pointed out, the stifling of dissent, curbs on freedom of expression and diktats being issued on what one should eat, wear, read or watch by right-wing Hindutva outfits seemingly enjoyed tacit support from those in power. Prime Minister Narendra Modi, meanwhile, chose complete silence instead of words of reassurance or commitment to the constitution. It was not lost on people that a man who embraced social media and wished colleagues on their birthdays and remembered leaders on anniversaries, did not offer any comment on the rising intolerance. When finally he did, under pressure, it was

VOICES OF PROTEST (Clockwise from above) In the light of growing intolerance, documentary director Anand Patwardhan has returned his national film award, novelist Shashi Deshpande has resigned from the Sahitya Akademi General Council and writer Nayantara Sahgal has returned her Sahitya Akademi Award

the most wishy-washy statement in the circumstances: Hindus and Muslims must fight poverty together. Jaitley, Home Minister Rajnath Singh and others attempted to change the narrative but the tag “intolerant India” had stuck. Instead, BJP’s spokespersons and apologists mocked the Idea of India that stands for a plural, secular, multi-denominational, inclusive and egalitarian country. Cultural Affairs Minister Mahesh Sharma mocked that “writers should stop writing”. Together, they were effectively undermining the letter and spirit of the constitution. INDIA LEGAL December 15, 2015

SOCIETY/ Growing Intolerance

Kailash Vijayvargiya, BJP leader

Mahesh Sharma, culture minister

Dinanath Batra, RSS ideologue

Hamid Ansari, vice-president

MM Kalburgi, Kannada writer

He questioned Shah Rukh Khan’s patriotism and said his soul is in Pakistan.

Calling award wapsi writers’ personal choice, he challenged them to stop writing.

As convenor of Shiksha Bachao Andolan Samiti, he is pushing Sangh’s ideology in textbooks.

Has faced criticism for his views on intolerance; was not invited for Yoga Day celebrations.

A critic of idol worship and superstition, he was gunned down in August this year.

This began to inform international perception, provided ammunition for Modi jokes and allowed people to move away from the rah-rah narrative that had been built up. On social media platforms, where Modi and his managers had unleashed a blitzkrieg in the run-up to the 2014 general election and his loyalists continued to drum up support for him later, the tone had altered. Though “Modi toadies”, as author Salman Rushdie termed them, persisted in their abuse of anyone who spoke for the Idea of India, there was comparatively less bile and sharpness. The only defense that they were left with was “Go to Pakistan”, hurled at anyone who remarked on the growing intolerance. It sounded juvenile and funny. This was ironic because many protestors had been pointing out that intolerance and bigotry was turning India into a “Hindu Pakistan”. The national and international conversation about “Intolerant India” coming on the back of a less-than-stellar performance on

December 15, 2015

the economic front, rising prices that saw pulses sell in retail outlets at `200-220 a kilo and the loss in Bihar means Modi is on the backfoot. His standard response in such a situation is to brazen it out and go on the offensive. Will he, indeed can he, do it against a revived opposition in parliament and the new-found confidence of many Indians to speak the truth to those in power? IN QUICK SUCCESSION The Kalburgi murder and the Dadri incident were the last in a series of events that have been cause of much concern. Beef bans, meat bans during Jain festivals, lynching of truck drivers on suspicion that they were transporting beef, disruption of book launches and art exhibitions, the mythification of science with Ganesh’s head being the first plastic surgery in the world, selective hounding of activists and NGOs believed to be Leftof-centre have all happened in the last oneand-a-half years.

Other “intolerant” incidents include: threatening music concerts of Pakistani artistes such as Ghulam Ali, increasing visibility of RSS chief Mohan Bhagwat, Modi and his cabinet at a governance status update program of the RSS, a Muslim scholar being stopped from writing columns on Ramayana, Nobel-awardee Dr Amartya Sen being ridiculed and vilified, Vice-President Hamid Ansari being taunted for his religion, the systematic saffronization of cultural and educational institutions, appointment of Dina Nath Batra to education boards, the Machiavellian twisting of the religious census to bring alive the BJP’s old bogey of “Muslim population growing faster” and much more. It was the worst nightmare coming true for many, especially those who always suspected that the BJP and Modi’s talk of development and good governance was a marketsavvy mask for the right-wing agenda of turning India into a Hindu state. It was a

Mohammad Akhlaq, Dadri resident

A mob killed him over rumors that he had beef in his house.

spiral of darkness of the kind that India had not seen in decades. DISMISSIVE GOVERNMENT The government strategy to dismiss the writers as disgruntled leftists with failed Nehruvian ideals did not help. Banal questions like—they have returned the award but what about the prize money (`1 lakh), why are they protesting now—proved ineffective. In fact, when Hindi writer Kashinath Singh, who hails from Varanasi, Modi’s constituency, returned his award on October 16, he pointed out that he was upset by the dismissive manner in which the government treated the protest by writers. He told news channel APN that he was particularly annoyed by the response of some of the ministers in the Union cabinet: “The statements one heard from our ministers showed that they were in the least concerned about the issues that were being raised. The ministers have insulted the writers.” INDIA LEGAL December 15, 2015

SOCIETY/ Growing Intolerance

DISCORDANT NOTES The Shiv Sena did not allow Pakistani singer Ghulam Ali’s show to happen in Mumbai

Even BJP’s allies, the Shiv Sena and the Shiromani Akali Dal (SAD) have been critical of the intemperate remarks made by BJP leaders and ministers. SAD MP Naresh Gujaral reportedly said: “The prime minister had spoken (against Dadri lynching) earlier, but these motormouths have not paid enough heed to what he said. It’s high time that the BJP leadership takes action against at least against one such person so that there is some kind of sanity back in national affairs.” Pradnya Daya Pawar, writer and poet, and daughter of path-breaking Dalit writer Daya Pawar, in her letter to Maharashtra chief minister Devendra Fadnavis in October, while returning the state award and prize money, even stated it was “undeclared emergency”. Joining her were three other writers and poets in Maharashtra. WORSE THAN EMERGENCY What is happening now seems worse than even the Emergency, said noted documentary filmmaker Anand Patwardhan. The undercurrent of his sentiment found a release in well-known novelist Shashi Deshpande resigning from the Sahitya Akademi general council and in noted writer Nayantara Sahgal’s letter returning her

December 15, 2015

MORE NEWS

award. In it, Sahgal explained: “The Prime Minister remains silent about this reign of terror. We must assume he dare not alienate evil-doers who support his ideology. It is a matter of sorrow that the Sahitya Akademi remains silent…In memory of the Indians who have been murdered, in support of all Indians who uphold the right to dissent, and of all dissenters who now live in fear and uncertainty, I am returning my Sahitya Akademi Award.” The rising protests meant that a section of the intelligentsia had come awake from the “comatose state” that award-winning novelist Kiran Nagarkar had lamented they were in last year. Yet, instead of paying some attention, the Prime Minister chose to disregard it all and move on as if he did not grasp the full import of what the bigotry was doing to the country’s social fabric. This was no fringe group, this was the mainstream and majoritarian political party leaders or elected MPs. What is the way out of this spiral? Nagarkar, Patwardhan and others say that all those who believe in the Idea of India must stand up for it now, irrespective of the profession they pursue, and speak up against the storm of hatred and intolerance. Though such incidents took place during the Congress governments too, there was a difference. As a Mumbai-based social scientist put it: “There were hate crimes before 2014 too and the Congress was guilty of colluding in some of them. But there’s a difference. There is now a systematic diminishing of the plurality and tolerance, there is a triumphalism of Hindu majoritarianism, and there is visibly less acceptance of the other. Writers and thin-kers, who are considered the soul of the society, are resisting by returning their awards. Others will have to find their own language of protest.” The fight against this spiral of darkness, clearly, cannot be one-dimensional and uniform, or short in tenure. A wider range of Indians, those in other fields, must discover their means of protest and find the nerve to say what they want to. Let no one tell us that the Idea of India as enshrined in the constitution is not worth fighting for, irrespective of how Modi and his ministers handle the parliament session. IL

Smart policing by 2017 he center has set an ambitious deadline of March 2017 for integrating the country’s 15,000 police stations with e-courts, e-prisons, forensics and prosecution as part of the home ministry’s `2,000-crore Crime and Criminals Tracking Networking and Systems project. The project will

“Practice in lower courts first” enior advocate and chairman of Bar Council of India (BCI) Manan Kumar Mishra told a five-judge constitution bench headed by Justice JS Khehar that the BCI is contemplating framing of rules which would make it mandatory for a lawyer to practice for a minimum of five years in lower courts before joining the high court, reports The Times of India. At present, a law graduate can argue a case in all courts, including the Supreme Court, after clearing the All India Bar Examination conducted by the BCI.

ensure quick data transfer, enhanced transparency and also reduce processing time. It will digitize data related to FIR registration, investigation and chargesheets in all police stations, reports Business Standard. This would lead to the development of a national database of crimes and criminals.

Close Balakrishnan probe: Govt nderlining that it may set a “dangerous precedent”, the government has favored closure of Supreme Court proceedings against former Chief Justice of India KG Balakrishnan (in the picture) over allegations of illicit monetary transactions and disproportionate assets, reports The Indian Express. Attorney-General Mukul

Rohatgi told the Bench led by Justice Dipak Misra that after the income-tax inquiry against the former CJI and his family “yielded nothing”, there should not be any fresh probe by the CBI or any other agency. “We cannot have investigation like this in such cases. Everybody will start making wild allegations,” he said.

Sacrilege will get life he Punjab cabinet has announced that it would introduce a new amended section— 295 AA—in the IPC to punish with life imprisonment those involved in the sacrilege of the Guru Granth Sahib, The Times of India reports. Hurting religious sentiments, currently covered under Section 295 A, makes sacrilege punishable by a three-year jail term. The move follows a dozen cases of Guru Granth Sahib desecrations which triggered violent protests in which two protesters were killed in Faridkot in October. The BJP welcomed the move, but added that the government should seek similar punishment for disrespect to Hindu idols.

T Pre-nuptial agreements nion Minister for Women and Child Development Maneka Gandhi wants to make pre-nuptial agreements, which have already caught favor in the western world, to be recognized in Indian courts as a standard legal document, reports The Huffington Post. At the moment, the pre-nuptial agreement is not recognized in India. Couples may enter into an agreement under the Indian Contracts Act, but this has not been legally upheld in courts. The ministry has now called for a consultation on the matter from several stakeholders, including former solicitor-general Indira Jaising, women-centric NGOs and so on.

INDIA LEGAL December 15, 2015

INTERVIEW/ Taslima Nasreen

“This is a Different India...! Hope Good Sense Will Prevail” Exiled in 1994 for criticizing Islam in her novel Lajja, controversial Bangladeshi writer TASLIMA NASREEN is still dauntless and does not mince words when it comes to opposing religious fundamentalism and espousing the cause of freedom of expression. Since 2004, she has an Indian visa on a continuous basis. In an interview to MURALI KRISHNAN, Nasreen, 53, shares her worries about the shrinking space for freethinkers in her country and says Islam cannot be exempt from the critical scrutiny other religions go through. Excerpts:

December 15, 2015

BACKWARD MARCH (Left) More and more Bangladeshi youth are taking to the burqa and the Hijab now The Jamaat-eIslami, whose leader Abdul Quader Mollah (below) was hanged in 2013 for war crimes, has infiltrated the Awami League

built for indoctrinating young boys. These mosques and madrasas are the breeding ground of Islamic fundamentalists and terrorists. During the 70s and 80s in Bangladesh, I never saw so many girls and women wearing hijab and burqa. Arab Wahhabi culture has invaded Bangladesh. And political Islam is present with its guns. It has replaced the innocent form of Islam practiced by my grandparents.

Do you think religious fundamentalism in Bangladesh has become more pronounced, especially in the backdrop of the killings of bloggers, writers and publishers?

The Awami League is in power. They are considered pro-independence and “secular”. How come fundamentalists are gaining ground in the country?

I think so, yes. In my time, hundreds of thousands of fundamentalists demanded my execution by hanging because I criticized Islam. Now, young writers and bloggers, who are critics of Islam, are being hacked to death by Islamic terrorists. Islamization started in Bangladesh in the 80s. Huge amounts of money arrived from the Middle East. Numerous mosques and madrasas are being

The Awami League is not secular anymore. It’s more like the Jamaat-eIslami. This party has an ulema league which was formed by Islamic fundamentalists. They are the people who okay the killing of freethinkers and liberals. Members of the Jamaat-eIslami have been joining the Awami League because they have more or less the same ideology. Sheikh Hasina has not issued any

statement so far against the brutal killings of progressive and secular writers. She has rather warned the freethinkers that they must not cross the limit or hurt the religious feelings of people. She created a law which is against freedom of expression. She made atheist writers and bloggers victims of a dangerous provision of Section 57 of the Information and

Communication Technology Act.

Many suggest that the main conflict in Bangladesh today is between pro- and anti-independence forces that has escalated with the starting of war tribunals. Do you agree? Not really. Many pro-independence forces are also against the atheist INDIA LEGAL December 15, 2015

INTERVIEW/ Taslima Nasreen

INTERNATIONAL BRIEFS

Russian court bans Church of Scientology A

ETHOS OF INTOLERANCE (L-R) Bangladesh blogger Avijit Roy and Indian thinker MM Kalburgi both fell prey to fundamentalist forces

Moscow city court has ruled that the Moscow branch of the Church of Scientology should be dissolved, reports The Guardian. The court accepted the arguments of Russia’s justice ministry that as the term “scientology” is a registered US trademark, the church cannot be considered a religious organization. The church condemned the ruling and

Thailand repatriates Chinese dissidents

C bloggers and writers. All pro-independence people are not necessarily freethinkers. Many are believers. They support the punishment of war criminals as well as the atheists. The real conflict is between secularism and fundamentalism. Between rational, logical thinking and irrational blind faith, between humanism and barbarism, between those who value freedom and those who do not.

The rise of fundamentalism can also be seen in India. Is the world changing in a new direction? I have been witnessing the rise of fundamentalism in India. Rationalists have been slain by Hindu fanatics. Four people have been killed over beef. Two have been killed in clashes over Tipu Sultan’s birth anniversary celebrations. This is a different India. I cannot be proud of this intolerant India. I hope good sense will prevail.

If you hadn’t left Bangladesh, do you believe the fundamentalists would have killed you? Of course. I live in exile. The Islamic

December 15, 2015

I said that pseudo-secular people who speak against Hindu fundamentalists but not against Muslim fundamentalists are hypocritical. I don’t understand why they think they should defend minority fundamentalism. killers are still after me. They have made a new global hit list and my name is on it.

You said a majority of Indian intellectuals are hypocritical as they did not speak up when Muslim fanatics attacked you. I did not say that Indian intellectuals are hypocritical. I said that pseudo-

secular people who speak against Hindu fundamentalists but not against Muslim fundamentalists are hypocritical. I respect intellectuals in India. They are against all kinds of fundamentalism. It is true that many writers and artists who call themselves secular did not defend me when I was attacked by Muslim fundamentalists. They believe it is their duty to defend Muslims in India as they are a minority. That’s fine, but I don’t understand why they think they should defend minority fundamentalism. There is no difference between minority religious fundamentalism and the religious fundamentalism of the majority community.

hina has defended its repatriation of two Chinese activists from Thailand who had been granted UN refugee status, BBC News reported. The foreign ministry said the men were guilty of crimes but did not say which laws they were accused of breaking. Jiang Yefei and Dong Guangping, who fled China after being jailed for criticizing the government, were sent back. The United Nations strongly criticized Bangkok’s decision to repatriate those who had been granted refugee status, warning that the men were at risk of “grave human rights violations”. Political cartoonist Jiang Yefei was a vocal critic of the Chinese government and had been tortured by Chinese authorities in the past. He had been living in Thailand.

Bangladesh hangs opposition politicians

angladesh announced that it had carried out the hanging of opposition politicians Ali Ahsan Mohammad Mujahid and Salahuddin Quader Chowdhury, accused with war crimes committed during the country’s 1971 war of independence fought against Pakistan, reports Al Jazeera. Chowdhury, 66, was a member of the opposition Bangladesh Nationalist Party (BNP) and was convicted of atrocities, including genocide, during the 1971 war. Mujahid, 67, was a member of the banned

Jamaat-e-Islami and was sentenced for war crimes, including the killing of top intellectuals. The executions have been decried as being “politically motivated” by opposition groups.

Iran sentences US journalist

ranian authorities announced that American journalist Jason Rezaian, a reporter of The Washington Post, held by the government for 16 months and charged with espionage, had been sentenced to jail, reported NBC News. Rezaian, a dual American-Iranian citizen,

was accused of espionage and other charges in October. His family and The Washington Post insist that the charges against him have no merit and have accused Iran of a lack of transparency. Neither the US State Department nor Rezaian's family confirmed the report.

Pakistan nabs over 40 for arson

You said there is “idiocracy” in Bangladesh, not democracy. Why? Yes. If they weren’t idiots, they would have created laws based not on misogynistic religion, but on equality and justice. They would have had sciencedriven education rather than religiondriven education. Now the country is fully of idiocy and theocracy. I have lost all hope for that country. IL

pledged to appeal against it. Created by science fiction writer L Ron Hubbard in 1954 and based in Los Angeles, California, the Church of Scientology has generated controversy around the world. Critics say that it is a cult and that it scams its members, while many others maintain that it provides spiritual support to its followers.

Chinese rebel Jiang Yefei

ollowing the burning of an Ahmadi place of worship as well as a chipboard factory, Pakistani law enforcement agencies arrested over 40 suspects in a midnight raid for their alleged involvement, Pakistani

daily Dawn reported. Sources told Dawn that authorities used video footage of the incidents to identify the suspects. After the arrest, the suspects were supposedly shifted to an undisclosed location for interrogation. INDIA LEGAL December 15, 2015

BOOKS/ Pursuit of Law and Order/ AP Durai

The Persecution of Lalu Prasad Yadav

For those who were active in Indian journalism during the 1980s and 1990s, AP Durai was a legendary figure. There were many like him. Nonetheless, that adjective was rarely used for a cop, especially in post-independence India in which the police force is by and large excoriated as corrupt or politically compromised. The back flap of his new book, Pursuit of Law And Order (NotionPress) describes the author’s journey aptly: “As Durai raced through positions he held in Indian Oil Corporation, as Director of the SVP National Police Academy, Hyderabad, and as Director General of Karnataka police, as Director General Railway

POLITICAL VENDETTA? The book questions CBI’s overzealousness in dragging Lalu Yadav’s name into corruption cases

This never-told-before inside story of the CBI’s complicity with Lalu Yadav’s political enemies when he was nailed in the fodder scam. Now with Lalu making headlines all over India following his triumph in Bihar, this revelation will probably send shockwaves across the country 46

December 15, 2015

Protection Force, he left behind him many reforms and a new spirit of optimism and public service in the forces he commanded.” But his journey was no bed of roses. His autobiography is sprinkled with tales of his struggle with politicians and jealous colleagues, of frequent transfers and humiliation. Nonetheless, it proclaims “the triumph of the human spirit imbued with the ideals of public service and professionalism. The book, therefore, would be a source of inspiration to all public servants involved in the governance of the country.” There are tales of horror, of humanity, of deep spiritual introspection, of constitutional legali-

ollowing an outrageous attempt by the CBI officers in Patna— headed by UN Biswas, Joint Director, CBI from Calcutta— on 31st July 1997 to summon the assistance of the army authorities to arrest Lalu Prasad Yadav, former Chief Minister of Bihar, I was appointed by the Cabinet Secretariat to enquire into the incident and submit a report in ten days’ time. There had been uproar in the Parliament and to assuage the feelings of other MPs cutting across party lines, Prime Minister Gujral decided to institute an inquiry. How this assignment came my way while I was serving as DG RPF was a mystery to me. Perhaps it was a vindication (and recognition) of my consistently apolitical and independent stance in my career. I visited Patna and recorded statements and collected the facts from concerned CBI officials and army authorities and submitted my report on 18th August 1997. In what came to be known as the Animal Husbandry Department scam, CBI had registered 49 cases and Lalu Prasad Yadav was involved in seven cases, including RC-20 (A) /A/96Patna, which was a case of ‘larger conspiracy’ (a term invented by Joint Director Biswas

ties, of courage, throughout this 238-page book written in flawless, often poetic prose and sensibility. Its clarity stems from its inherent honesty. One chapter that stands out and makes the reader’s hair stand on end is the extent of constitutional impropriety in which the CBI and its political masters conspired to capture Lalu Prasad Yadav in the infamous “fodder scam” by trying to bring in the Indian Army. This never-told-before story, now with Lalu making headlines all over India following his triumph in Bihar, will probably send shockwaves across the country. – Editor EXCERPTS:

obviously to rope in Lalu Prasad Yadav and a number of IAS officers) and the charge sheet had been filed against him in this case on 23rd June 1997 in the court of the Special Judge, CBI in Patna. In the order issued by the Department of Personnel and Training on 1st August 1997, the Government said they had taken “serious note of the conduct of the CBI in requisitioning the army in the circumstances of this case.” From the very beginning the case against Lalu Prasad Yadav had become politicized and the opposition leader in the state assembly, SK Modi was carrying on a crusade due to which the Supreme Court had appointed two judges of Patna High Court as the ‘Monitoring Bench’ to oversee the investigation of the bunch of cases on a fortnightly basis. Although their jurisdiction had ceased once the charge sheet was laid in the Special CBI court, my enquiry revealed that the judges continued to monitor CBI’s efforts to arrest and disgrace Lalu Prasad. I would quote from the order of the Supreme Court in Union of India vs Sushil Kumar Modi and others on 24th January 1997: “In case of persons against whom a

APOLITICAL PROFILE AP Durai is wellrespected for his upright image

INDIA LEGAL December 15, 2015

BOOKS/ Pursuit of Law and Order/ AP Durai

The drama proved that our polity could be manipulated by the concerned functionaries, driven by extraneous considerations, as in the case of UN Biswas. prima facie case is made out and a charge sheet is made out and a charge sheet is filed in the competent court which will then deal with that case on merits in accordance with law.”

ASSAULT ON ADMINISTRATIVE STRUCTURES The second player in this scenario was the Director, CBI of the relevant period—who also seemed to show keen interest in the arrest of Mr Lalu Prasad but at the same time, was helpless as Biswas had virtually declared independence from his Director. This collapse of the chain of command was due to the fact that the Monitoring bench had directed the Director, CBI not to ‘interfere’ with the work of the Joint Director (East). In addition, they had also injuncted the Director from transferring out Biswas from his present post. Thus a CBI within the CBI was created, violating all cannons of good administration. The Director should

December 15, 2015

have fought this issue legally and in the worst case scenario, should have resigned as he had been divested of control over his own subordinate. The Government of India should have taken all steps to uphold the primacy of the Director as chief of the organization, but during this period, one weakling government was followed by another, and the CBI’s unity of command was destroyed. In my view, these are unhealthy precedents and dangerous experiments added to the arsenal of judicial activism, to take control of the executive functions of the state, which is not contemplated in our Constitution. These are populist devices and however much they are applauded at the moment, they tend to leave behind tears on the fabric of governance, upsetting the balance of power. The other organs of the government are overawed, and even terrorised by the judicial arm which tends to assume an aura of infallibility. Instead of saying, “The Law will take its course”, we are now compelled to say, “The courts will take their own course.” I would put the blame for this state of affairs not on the judiciary but on the political executive, their loyal bureaucracy and the police, all of whom have developed a nexus for mutual benefit. They have forfeited their right to govern and people at large see only the judiciary as their savior. Courts appointing their own Special Investigating Teams (SITs) is also another step. I feel, in the wrong direction, as such teams supersede the authority of the state and central agencies, who are statutory authorities to maintain law and order or investigate crimes. The creation of extraconstitutional authorities sometimes headed by retired IPS officers needs to be reviewed for its constitutional validity. The existing agencies must be made to deliver by the courts and for the purpose, they should not hesitate to summon the political executive to the courts to explain their gross failures on the public order front. It is the political executive in India that had poached on police administration, resulting in miscarriage of justice and violation of the rule of law. The third player was, of course, the media who carried on a campaign against

Lalu and conducted a trial, and even convicted him in their newspapers. Under the Rule of Law, everyone accused of a crime is presumed to be innocent till he is pronounced guilty by the competent court. But the press and electronic media in this country have gradually become judges in cases which are pending investigation or pending trial. The ‘lakshman rekha’ has been crossed by all players and the resultant victim is the rule of law in this country. BISWAS GEARS UP FOR THE ARREST To get back to the main story: Once the CBI had got a non-bailable warrant issued against him on 23rd July 1997 and his arrest was imminent, Lalu Prasad had quit office and installed his wife as chief minister. He then promptly announced his plan to surrender to the court in view of the non-bailable warrant issued against him. Joint Director UN Biswas and his CBI team in Patna, decided to thwart Lalu’s plan and arrest him on 30th July, but they could not do it thanks to the big gathering of Lalu’s supporters around his residence. This prompted Biswas to think of obtaining the Army’s assistance. If he had succeeded, the emotionally surcharged atmosphere would have exploded in Patna, placing the Government of India in a big mess. Seeing that the state police did not share their zeal, the CBI officers consulted the monitoring judges ‘orally’ and sent a requisition to the army commander in Dhanapur to render help in arresting Lalu on the morning of 31st July 1997. UN Biswas and his legal counsel, Rakesh Kumar, were in constant touch with one of the judges of the monitoring bench. This they quoted in their statements before me during my enquiry as their authority for what

they had attempted to do in contravention of the law of the land, and the laid down procedure to seek the assistance of the army—that is, they should have requested State Government to call in the Army! The letter addressed to the Army Brigadier was shown to one of the judges of the Monitoring Bench before it was taken by the emissary from the CBI. The Bench had no jurisdiction over the case as it had been charge sheeted and only the trial court had all the authority to pass orders on the issue. The trial judge when approached, had asked the CBI (and rightly so) to file an application in the court the next day and the CBI officers had panicked and resorted to the extra legal procedure of direct approach to the army. The monitoring style adopted in this case by the Patna High Court was unusual, to say the least. In my entire service, I had never come across an instance of this kind where police/CBI officers could approach the judges outside their courts unofficially and seek ‘oral directions’. The DIG CBI, Patna, advised Biswas to taker Director’s clearance before taking this extreme step, but he was brushed aside. Biswas had earlier told him of his intentions, “I do not want to arrest small people. I want to arrest important people.” During my inquiry, I made attempts to meet the two judges of the Monitoring

WRONG PRECEDENT The erring CBI officials requisitioned the army to arrest Lalu Yadav, in violation of the law of the land

INDIA LEGAL December 15, 2015

BOOKS/ Pursuit of Law and Order/ AP Durai

The media carried on a campaign against Lalu and conducted a trial, and even convicted him in their newspapers. They have become judges in cases which are still pending trial. Court, but the Registrar of the High Court communicated to me the message that their Lordships were not interested in meeting me. The Army Brigadier had phoned one of the judges for confirmation when he received the requisition from the CBI and he was told that the Judges had not given any such permission but had told the CBI that they may seek the assistance of the army if they wished to do so. The entire drama showed up serious fissures in our polity and proved that it could be manipulated by the concerned functionaries, driven by extraneous considerations besides garnering personal glory, as in the case of UN Biswas. Ultimately, the Army Brigadier Nautiyal refused to depute his men to facilitate the arrest, but Biswas’s attempts to bypass the procedures and exceed his powers was taken serious notice of by the Parliament and the entire country. MY REPORT In my report, I held that: 1. The CBI need not have asked for issue of a non-bailable warrant against the accused. It would have sufficed if they had filed the chargesheet and asked the court to issue process to ensure the attendance of the accused. The earlier low key style of the CBI had now been abandoned for reasons unknown. The CBI need not have tried to execute the NBW themselves. They could have got it endorsed by the local police as the CBI do not have the wherewithal to effect the arrest. 2. The CBI could have saved themselves (and others) a great deal of pressure and tension by allowing the accused to surrender to the court. 3. In any event, the CBI did not have the authority to requisition the services of the Army. In my recommendations, I suggested action against the Joint Director and his SP

December 15, 2015

WELL-GROUNDED (Left) Lalu’s performance as railway minister during UPA-I regime attracted much public admiration (Below) The author found Lalu Yadav a man of earthy common sense and devoid of arrogance

and the Standing Counsel of the CBI in Patna High Court, all of whom had crossed the boundaries of their mandate and caused a crisis, pitting the Centre against the State, I also suggested that CBI officers be selected with due care and that the Government might start from the top. I suggested that the selection of the Director should be a collegial process which would include the Prime Minister, the Union Home Minister, the Leader of the Opposition and a retired Judge of the Supreme Court and that a fixed tenure should be given to the Director. About the Director’s status in the CBI, I said in the concluding part of my report— “A study of the functioning of JD (East) Calcutta and his subordinates in relation to the handling of AHD scam cases would give an impression that it was time that the primacy of the Director CBI was reasserted to bring back professionalism and discipline among the officers concerned…. The CBI today has the power to destroy the careers of both officials and politicians and therefore, the personal character and affiliations of

their investigators and supervisors should be subjugated to scrutiny from time to time.” My report was treated by the Government as secret for some time and only some portions were made available to the press. Later, Buta Singh, MP, laid it on the table of the Parliament and it became a public document. On August 27th, Home Minister Indrajit Gupta convened a meeting which was attended by the Home Secretary, Director CBI, Secretary (Personnel), the Law Secretary and me. I stated my case for initiating disciplinary action against the erring CBI officers and the face of the Minister remained expressionless. When charges were framed subsequently against him, Biswas approached Calcutta High Court and got the proceedings quashed. LALU PRASAD COMES CALLING My report was perhaps the quickest inquiry report ever submitted to the Government of India—within eighteen days! Another feature of this inquiry was that I did not try to meet Lalu Prasad and examine him and

record his statement, as I did not want to introduce a political dimension in an administrative inquiry. My focus was only on the CBI’s attempt to summon the army to assist them in arresting Lalu Prasad. I retired in May 1998 and left Delhi. Six years later, while I was in Bangalore, there were calls from Lalu Prasad and his associates and I learnt that Lalu Prasad wished to have me as a defence witness in another case filed against him by the CBI subsequently. This time the charge was that he and his wife had amassed assets disproportionate to known sources of their income. I evaded the telephone calls, but one day I received the summons from the Special Judge, Patna. After that Lalu Prasad talked to me and I told him I was bound to obey the summons. Lalu came down to Bangalore and telephoned INDIA LEGAL December 15, 2015

VIEWS ON NEWS

BOOKS/ Pursuit of Law and Order/ AP Durai

THE CRITICAL EYE

EVERY FORTNIGHT VIEWS ON NEWS WILL BRING YOU TELL-ALL NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE MINDS IN THE NATION Views On News (VON) is India’s premier fortnightly magazine that covers the wide spectrum of modern communication loosely known as “the media”. Its racy, news and analysis oriented story-telling encompasses current global and Indian developments, trends, future projections encompassing policy and business drifts, the latest from inside the print and electronic newsrooms, the exciting developments in ever-expanding digital space, trending matters in the social media, advertising, entertainment and books. UNUSUAL INVOLVEMENT The author found it strange that CBI officers could meet Patna High Court judges outside the courts and seek “oral directions”

PURSUIT OF LAW AND ORDER By AP Durai Publisher: NotionPress Price: `299, 238 pages

December 15, 2015

from his hotel to say that he wanted to meet me. I told him he was welcome to come to my apartment in Frazer Town and he came and spent an hour with me and my family. Lalu praised my report and expressed his gratitude for my having stated the facts boldly, which gave him a breather from the CBI. He gave instructions to his companions on how my travel to Patna and my accommodation should be taken care of. The court itself had stipulated in its orders that I should be granted facilities that I was entitled to, before my retirement. In my conversation with Lalu about the deterioration in administration due to political interference, I told him, “You might be Chief Minister or even Prime Minister, but you must allow officers to do their work without interference.” When Lalu Prasad became Railway Minister shortly thereafter, he seemed to have taken this advice in good spirit and his performance in the railway portfolio attracted public notice and admiration. I went to Patna in February 2004 (if my memory serves me right) and deposed as defence witness. Before my examination in chief started, the Judge told me in the open court why I had been summoned, “The case of the defence is that the CBI found it difficult to go forward in the AHD case against Mr Lalu Prasad because of your inquiry report and so they have come up with a new

case against him for disproportionate assets this time. Through you, they want to prove mala fides on the part of the CBI.” On the first day, Lalu himself accompanied me to the court and sat in the first row while I was examined. As my cross examination lasted another week, I had to continue to stay in the State Guest House, very close to the Chief Minister’s residence. Lalu took me around and showed his cows, horses and vegetable garden. I found him to be a man of earthly common sense and devoid of arrogance while interacting with people. He told me how he had entered into Jayaprakash Narayan’s movement while he was doing his law and went to jail during the Emergency with Nitish Kumar and others. Apparently, Lalu Prasad wanted to show his appreciation or gratitude to me and when he became the Railway Minister, he spoke to me twice and asked me to take up an inquiry into the Godhra incident (2002) where a sleeper bogie in which Karsevaks and pilgrims returning from Ayodhya had been set fire to, allegedly by a Muslim mob, killing fifty-eight passengers. I declined it and later, a minister of his party offered me the position of Administrator in a failed Chit Fund company in Chennai. I declined again on ground that I was serving Shri Ram Chandra Mission on a full-time basis and could not give attention to anything else. IL

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POLITICS/ Parliament Debate

Salve after Mindless Salvos The Constitution Day debate was marked by acrimony and verbal dual till Modi reached out and smoothened ruffled feathers By Ajith Pillai

PRAGMATIC APPROACH? (Above) Modi tried to soothe ruffled feathers in his address on the Constitution Day in parliament

December 15, 2015

HANK God there were no adjournments and walkouts! That would have diabolically complemented the bitter mudslinging between the treasury benches and the Opposition that dominated the two-day special session of parliament last week. It was ostensibly convened to discuss the nation’s commitment to the hallowed constitution of the republic and as a solemn and celebratory occasion to mark the 125th year of the birth of Dr BR Ambedkar. But it was unfortunate that it dithered into a mindless show of one-upmanship that was, for the most part, regrettable. In fact, the architect-in-chief of our constitution and the principles he stood for were lost in the din of verbal exchanges in which party agendas were given top priority. One can safely

The unstated implication was that Ambedkar disapproved of the two words. This, as we all know, is far from the truth. Singh did not stop there. He pronounced: “People mistake Ambedkar as a leader of the Dalits. He is actually the Rashtra Rishi (national sage) of this country.” That would certainly have not gone down well with Dalits. To add insult to injury, he pouted this gem: “What is more democratic than Lord Rama, who took Sita’s agni pariksha (trial by fire) on the basis of comments by a person of low social standing?” The honourable home minister while drawing references from ancient Hindu texts perhaps forgot that Ambedkar had renounced Hinduism because of its caste discrimination and embraced Buddhism. Neither did Congress leaders do themselves proud by playing football with Ambedkar and the Constitution Day debate. Mallikarjun Kharge, leader of the Congress party in the Lok Sabha and a Dalit leader, countered Rajnath Singh with this divisive remark: “We (Dalits) won’t go anywhere. It was the Aryans who came from outside, not us. We are from here.”

say that neither the BJP nor the Congress came out smelling of roses. Union Home Minister Rajnath Singh set the tone and tenor of the debate on day one. He started well by paying tributes to Ambedkar, Patel and Nehru as the architects of the Indian republic. But he soon strayed into familiar Hindutva-RSS territory which seemed to occupy much of his mindspace. Indeed, donning saffron bifocals, Singh blundered along, ruffling feathers. Ambedkar, he said, was subjected to humiliation but he never ran away from India (a thinly veiled reference to Aamir Khan’s much misquoted statement). The home minister then courted further controversy by pointing out that Ambedkar deliberately did not use the words “secular” and “socialist” in the preamble to the constitution. These were later introduced through the 42nd amendment.

nd Sonia Gandhi needlessly referred to the history of Indian Independence to reiterate something that is known and recognised: that the Congress had a major role in freeing the country from British rule and that Ambedkar was closely linked to the party. The Congress president also quoted Ambedkar in good measure to substantiate her point: “It is because of the discipline of the Congress Party that the drafting committee was able to pilot the constitution in the Assembly with the sure knowledge as to the fate of each Article and each amendment. The Congress Party is, therefore, entitled to all the credit for the smooth sailing of the draft constitution in the Assembly.” It seemed as if she was desperately trying to appropriate the Ambedkar legacy. Was it really called for? Day two saw Arun Jaitley launching a broadside against the judiciary for striking down the NJAC Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.

Photos: UNI

He went on to attack judicial activism which he said had crossed the “Lakshman Rekha”. Jaitley did not spare the Congress either when he compared the misuse of the constitution during the Emergency to repressive measures imposed in Hitler’s Germany. As Union finance minister one would have expected Jaitley to be more measured and less volatile. All the more so, since the crucial GST Bill has to be cleared during the Winter Session and the government requires the cooperation of the Opposition in that regard. But there seemed to be no stopping the finance minister as he bulldozed along. It was left to Prime Minister Narendra Modi to bring some semblance of calm into the proceedings. He not only reached out to the Opposition but even addressed—perhaps for the first time—Sonia as “Madam Sonia Gandhiji”. It was a conciliatory prime minister who wanted to undo the damage done in the last two days by some in his party and cabinet colleagues. His body language and tone of voice was shorn of its earlier arrogance. This quote from Modi summed up his position and predicament before the Winter Session post the Bihar rout: “I have said this before and will say it now that this country would not have advanced without contribution of all prime ministers, of all governments of the past and of all shades of people. I accept their contributions with gratitude. Yes, there are expectations and when those expectations are not met complaints are made but that’s the beauty of democracy.” Perhaps, the pragmatic prime minister realised he has no option but to take the Opposition with him. So he took the lead in smoothing ruffled feathers. IL

PLAYING TO THE GALLERY? (Above) Congress president Sonia Gandhi was desperately trying to appropriate the Ambedkar legacy in her speech

Home Minister Rajnath Singh set the tone and tenor of the debate on day one. He paid tributes to Ambedkar, Patel and Nehru but soon strayed into familiar Hindutva-RSS territory.

INDIA LEGAL December 15, 2015

PROBE/ Sheena Murder Case

The Money Strangle

Photos: UNI

PLOT THICKENS (L to R) Peter Mukerjea being taken for interrogation; Indrani Mukerjea with the cops

December 15, 2015

Did the murder of Sheena Bora have anything to do with the `900 crore that was siphoned off by her mother Indrani Mukerjea and her husband, Peter, to secret accounts abroad? By Ajith Pillai

ITH each passing day, the Sheena Bora murder case has thrown up the trademark characteristics of a 19th century Russian novel—a complex and twisted plot, a surfeit of melodrama and the darker side of human greed revealed in a multi-layered modern saga. In fact, comprehending the story involves delving deep into the life and liaisons of Sheena Bora’s mother, Indrani Mukerjea, who allegedly plotted the

VITAL LINK Vidhie, Indrani’s daughter from her marriage to businessman Sanjeev Khanna

murder of her daughter with the help of her present husband, her ex-husband and her driver. Could it get more complicated than that? TWISTED STORY The plot has only thickened since Indrani’s current husband, ex-media baron Peter Mukerjea, was formally arrested as an accomplice on November 19 by the CBI. New strands of information have suddenly emerged, adding a shocking twist to the tale. These seem to suggest the following: There may be a direct link between the murder and the monies stashed abroad by the Mukerjeas after the sale of their company, INX Media (which also owned NewsX channel) in 2009. The CBI told the special court in Mumbai on November 26 that as much as `900 crore illegal funds from the INX Media transaction were parked through shell companies abroad, including in accounts opened for Sheena Bora in HSBC, Singapore. Was the murder then a case of Sheena trying to extort more share of the loot and invoking the ire of her mother and her husband? Did they think she was better off dead than alive and demanding? Peter Mukerjea was aware of the plan to bump off Sheena. He was not a gullible husband and a nice guy as he wanted the world to believe. It is now revealed, through a series of emails he had sent to his son, Rahul, that he was very much part of the plot and knew virtually every step his wife was taking. Sheena was bumped off by her mother to ensure that her other daughter, Vidhie (from Indrani’s earlier marriage to Sanjeev Khanna), who was later adopted by Peter, would be the sole inheritor of the wealth of the Mukerjeas. Sheena would have had a claim to the inheritance if she and Rahul (Peter’s son from an earlier marriage), who were in a relationship, got married. Eliminating Sheena was seen as the only way out to ensure that Vidhie and Rahul would be the rightful heirs. The wealth the mother was eyeing for her daughter, we were earlier informed by the CBI, included a flat in upscale Mumbai, a

house in the UK and the monies in overseas accounts in Peter’s name. ILLEGAL TRANSACTIONS But was murder most foul committed for just that? Going by what the CBI told the court, there is obviously much more than meets the eye. The agency has now gone back to a 2013 probe report of the Serious Fraud Investigation office (SFIO), under the ministry of corporate affairs, which looked into the dubious sale of INX Media (which included NewsX ). Hundreds of crores changed hands in the deal and Peter and Indrani seem to have funneled the money abroad to secret accounts. In fact, SFIO’s draft report had recommended a criminal investigation into the sham transaction in which “the buyer and the sellers were one and the same”. SFIO had then launched its investigations under instruction from the government following a revelation in the Radia tapes that PR consultant Niira Radia was liasoning with the then NewsX management on financial

The arrest of Peter Mukerjea, on November 19 by the CBI, came as a surprise. New strands of information have suddenly emerged, adding a shocking twist to the tale.

INDIA LEGAL December 15, 2015

PROBE/ Sheena Murder Case

On record, there was an inflow of about `750 crore into INX Media. Much of it came from equity companies and was shown in the books as expended or as losses and allegedly siphoned off.

IN HAPPIER DAYS Sheena with Rahul, Peter Mukerjea’s son

December 15, 2015

matters. These included day-today running costs on behalf of a top Mumbai-based Fortune 500 corporate house with strong political links and interests in petroleum and the media. SFIO’s draft report was never followed upon, though it identified those involved in the selling and buying of the news channel through a maze of shell companies in India and abroad. Some of these were linked to the corporate group in question. It also revealed that Indrani Mukerjea was at the center of the entire deal, acting on behalf of Peter. The SFIO report made this pertinent observation about the INX Media sale: “It is important to highlight that the cost of purchase of shares between March 2007 (`208.24 per share) and January 7, 2009 (`208.23) differs only by a decimal, that is ` .01 only. However, when the shares were sold on January 7, 2009 the share price was taken at `10 per share. There is no reason to show such a sudden decline in the share price by `198 per share, especially when the company is not listed on the exchanges. Even in the case of listed companies a fluctu-

“Why would he (Sanjeev Khanna, left) get involved? The explanation that he willingly joined the plot so that his daughter, Vidhie, would become the rightful heir to Peter’s wealth is too simplistic….”

THE RADIA CONNECTION Niira Radia was liasoning with the NewsX management on financial matters

—A Mumbai police official

ation of more than 20 per cent raises a red flag which invites the intervention of SEBI.” SFIO had recommended a detailed probe but neither the UPA government nor the current dispensation has so far moved on it. MONEY MOTIVE The CBI has taken cognizance of the SFIO report, although it may look at it only within the narrow ambit of the murder investigation. An official of the agency explained the situation to India Legal: “We have sought Interpol’s help to identify Peter Mukerjea’s overseas accounts. But the investigation into the fraud transaction and the mechanics of how it was carried out will be outside the scope of the murder investigation we have been mandated to carry out. In fact, that aspect calls for an entirely different probe into a financial crime by an appropriate agency like the ED or the revenue intelligence. However, if monies did change hands and were parked outside the country as Peter has told us, then we would be interested because it would provide a far more substantial motive for the killing than Peter’s properties in Mumbai and his declared personal bank accounts.” According to him, there is also the point about the Mukerjeas having siphoned off operational funds from INX Media while they were involved in the running of NewsX and other associated entities. It may be

recalled that in 2007-2008 when INX Media was launched, Peter leveraged his influence and equity as a successful former CEO of the Star Network to attract investments into the new company. On record, there was an inflow of about ` 750 crore into the company and much of the funds came from equity companies like Temasek, New Silk Route Advisors, Kotak Mahindra Bank and New Vernon Private Equity. There were also unofficial money infusions. Much of the funds that came in were shown in the books as expended or as losses and allegedly siphoned to offshore accounts by Indrani with her husband’s knowledge. The staff of NewsX who were given pink slips when its parent company changed hands, wrote to the then I&B ministry complaining about the misappropriation of funds by the Mukerjeas. The ministry forwarded their complaint to the finance ministry for action but nothing came out of it except a notice to Peter Mukerjea from the Enforcement Directorate. SHEENA BLACKMAIL? The big question which emerges from this narrative is whether Sheena was aware of the money that was allegedly stashed away. More importantly, was she using the information to blackmail her mother and Peter? The investigators are not ruling out

that possibility. A police official in Mumbai who has been following the case closely told India Legal that high stakes must certainly be involved for someone like Sanjeev Khanna (Indrani’s ex-husband) to get himself entangled in the sordid mess. Remember, he was a fairly successful and respected businessman in Kolkata, owned an upscale restaurant and dabbled in real estate and the hotel development business before he was implicated in the murder. “Why would he get involved? The explanation that he willingly joined the plot so that his daughter Vidhie’s interests would be served and she would become the rightful heir to Peter’s wealth is too simplistic. It may be recalled that Sanjeev was dumped by Indrani and their daughter was legally adopted by Peter. Why would Sanjeev agree to be part of the murder unless there were big bucks involved and he was promised a share?” he asks. There are several questions that have bewildered investigators ever since the sensational murder came to light in August this year. What has complicated the case further is the fact that those linked to the crime, including the Mukerjeas, have emerged as people with no real emotional bonding between each other. And yet their lives criss-crossed. As for the killing itself, it was speculated that Indrani’s own insecurity and misgivings may have made her strangle her own daughter. It was even said that she was simply a person with a diseased mind. But if that was true, then what about the others who were willing accomplices to the crime? How did Indrani convince them to come on board? We now know that money was part of the murder matrix. And that too big money... IL INDIA LEGAL December 15, 2015

STATES/ Gujarat/Dholera Controversy

PRICEY DREAM An artist’s impression of the smart city of Dholera

Land of No Return Farmers in 22 Gujarat villages whose land has been acquired for the Delhi-Mumbai Industrial Corridor Project are an unhappy lot. Though a PIL has been filed, nothing has come out of it By Kaushik Joshi in Ahmedabad

ARMERS in Gujarat are up in arms against a government move to take over their lands. Across 22 villages in Ahmedabad, Bhavnagar and Kutch, the Gujarat government is acquiring land for the proposed Dholera Special Investment Region (DSIR), a major project under the DelhiMumbai Industrial Corridor Project. Dholera, 90 km from Ahmedabad, is an ancient port city in the Gulf of Khambat and is proposed to be developed into a smart city by 2025, six times the size of Shanghai. The Gujarat government has declared 920 square km in these 22 villages as DSIR under the

December 15, 2015

DSIR’s Importance

gapassociate.com

Gujarat Special Investment Region Act, 2009. The farmers were served notices under Section 17 (2) of this Act, which deprived them of 50 percent of their lands. Instead, they were given saline plots where nothing could grow. Incidentally, the DSIR area is a fertile region and is known for its exportable wheat variety. It requires only one watering session, whereas elsewhere it takes three. Sagar Rabari, secretary of the Gujarat Khedut Samaj, is spearheading the agitation for protecting farmers, and says: “Clearly, this means snatching away the means of livelihood of farmers, farm labor, cattle breeders and rural artisans.” Bhal Bachao Andolan and Jameen Adhikar Andolan

Gujarat (JAAG) are supporting Sagar in the fight against giving 28,503 hectares of land to the Special Purpose Vehicle (SPV) by the DSIR Development Authority. They have filed a PIL (writ no 227/14), before the Gujarat High Court in 2014. Unfortunately, there have been more than 25 adjournments. By its revenue department resolution dated January 12, 2011, Gujarat sold 28,503 hectares of the 22 villages to DSIR at the rate of Rs 20 per square meter. The office of the collector, Ahmedabad, issued an order dated March 18, 2011, whereby DSIR’s name was entered into revenue records of all 22 villages. The mamlatdar office (in charge of a taluka) did not pay heed to condition No. 8 in

the order which directed it to enter only those lands which belonged to the government and were not under dispute. Pradumnasinh Chudasama, who heads Bhal Bachao Andolan, says: “There are lands over which farmers have ownership under tenancy and talukdari laws. But the mamlatdar office didn’t care about it and transferred the whole lot to DSIR. We have documents with us and we want the government to check them and give our land back. The stock reply from the office of the mamlatdar is that the land now belongs to DSIR.” Chudasama himself had 28 acres, 50 percent of which was taken away by the government. Though an environmental public hear-

The Dholera Special Investment Region is a major project which aims to make the area into a global manufacturing hub supported by world-class infrastructure. It will have centralized digital control of all infrastructural facilities such as water, power and gas through an underground sensor system. The project’s goals are: to double employment potential, triple industrial output and quadruple exports from the region.

INDIA LEGAL December 15, 2015

STATES/ Gujarat/Dholera Controversy

Clearly, this means snatching away the means of livelihood of farmers, farm labor, cattle breeders and rural artisans. —Sagar Rabari, secretary, Gujarat Khedut Samaj

We have documents with us and we want the government to check them and give our land back. The stock reply is the land now belongs to DSIR. —Pradyumnasinh Chudasama, leader, Bhal Bachao Andolan

the Prant (local area) officer to look into it and dispose of the cases soon. The revenue office will examine the merits of each case and do the needful.” The farmers took out a five-day-long protest march on foot from November 1 to 5 from Bavaliyari village to Ahmedabad to submit a memorandum to the collector of Ahmedabad. These were their demands: Hold land kacheris in our villages to solve disputes regarding land Enter our names on revenue records for land we got under tenancy, taluqdari and urban land ceiling laws Enter all water bodies in revenue records Give surplus land in our villages to the landless The collector should ensure that the government and the Narmada Corporation promise us water Give us gauchar land (grazing land) in proportion to the number of cattle

We have already started the process for verifying the records and if there are genuine grievances, we will redress them. —Rajkumar Beniwal, collector, Ahmedabad ing was presided over by the collector of Ahmedabad on March 3, 2014, where he promised to do justice to the farmers within a month, nothing has been done so far, allege the farmers. These are lands the farmers got under the tenancy and agricultural land ceiling laws. Though they have evidence to that effect, thanks to shoddy records of the revenue department, the lands were treated as government land and allotted to DSIR. Rajkumar Beniwal, collector of Ahmedabad, said: “We have already started the process for verifying the records and if there are genuine grievances, we will redress them. It could take a couple of months.” AB Gor, resident additional collector of Ahmedabad too said: “We have instructed

December 15, 2015

DISPOSSESSED A sit-in by farmers at the office of the collector in Ahmedabad

What is more, these lands, which were in the irrigation area of the Sardar Sarovar Narmada Nigam, have now been taken out of the irrigation area, thereby depriving the farmers of water to irrigate their lands. The Vallibhipur canal for irrigation purposes was completed in 2002, but the farmers didn’t benefit from it, thanks to the arrival of DSIR. Worse, a distributary canal also can’t be made in the DSIR region. Consequently, surplus water from the canal flows into the Gulf of Khambhat. Sagar asks: “What does the government achieve by depriving the farmers of water? It is against the ruling of the interstate Narmada Water Tribunal.” Ashok Patel, deputy collector of DSIR Development Authority, said: “If the farmers don’t like the location of the final plots allotted to them, there is a town planning officer who can hear both parties and take a decision. If he decides the case in favor of the farmers, we will abide by it.” He said they had

“We are left in the lurch”

Mahesh Makwana, 30, a farmer from Shela village, a postgraduate, has 350 bighas of land. Under DSIR, he has lost half of it. “Does the government want us to do petty jobs in DSIR? Do we have to go to work with tiffins? We shudder to think of it.” Sixty-year-old Lakhadhirsinh Chudasama (in photograph) is from Kadipur village in Dhandhuka tehsil of Ahmedabad district. He has 30 bighas of land and is entirely dependent on agriculture. “The government has applied town planning law to our agricultural land. If we are not given what is rightfully ours, we will commit suicide on the same land. They have denied us even the Narmada canal waters for irrigation, leaving us in the lurch.” Narubhai Makwana, 50, is from Mingalpur village in Dhandhuka tehsil of Ahmedabad district. He has 55 bighas of land and said: “They (revenue officials) came, measured our land and entered DSIR’s name even in land under dispute. But we have the documents. Earlier, princes ruled over us. Now we have government officials in the same role. Where do we go?”

no objection if the Sardar Sarovar Narmada Nigam Ltd. authorities allow the farmers to use the water for irrigation. “I think they are now letting them have it for irrigation.” To make matters worse, DSIR authorities are also collecting development charges at the rate of Rs 30-50 per square meter from the farmers though they have no place in the whole project. The Act also has no provision for the rehabilitation of these farmers. “The farmers are sacrificial lambs in the whole project which is clearly going to make rich industrialists richer,” says Indukumar Jani, editor, Naya Marg, a monthly devoted to causes of the downtrodden. The government has ignored environmental concerns too. There cannot be any residential or industrial development in the 10-km range of Velavadar Black Buck Sanctuary in Bhavnagar, but the DSIR is being developed despite it being an eco-sensitive zone. The Gujarat Khedut Samaj wants it to weigh environmental issues and determine the coastal regional zone accordingly. “The government has determined the coastal regional zone based on revenue mapping done a century back. We want it done afresh considering the oceanic tide,” argued Sagar. The wait for justice continues. IL INDIA LEGAL December 15, 2015

STATES/ Amravati Vs Hyderabad

Andhra CM Chandrababu Naidu wants Amravati to be a rival to Hyderabad as the historic city combines mythology, history and modernity.

Tale of Two Capitals Andhra Pradesh Chief Minister Chandrababu Naidu has grand plans to develop a new state capital which will be both historic and futuristic. But the big question is whether Amravati can be a second Hyderabad By Kalyani Shankar

AN Hyderabad and Amravati be the crown jewels of the two Telugu states—Andhra Pradesh and Telangana? They can, if they decide to complement and not compete. After all, they share language, history, rivers and a long boundary. Before the bifurcation on June 2, 2014, Hyderabad as a high-tech capital had attracted huge investments from abroad but now both states are struggling to find their feet. Building a new capital has its own pains, challenges and benefits. Andhra Pradesh Chief Minister Chandrababu Naidu has begun this challenging task at Amravati on 33,000 acres of land south of Vijayawada. Amravati will be the fifth new capital built since Independence, the other four being Gandhinagar, Bhubaneswar, Chandigarh and Naya Raipur. Naidu is impatient to move out to his own

HIGH HOPES (Left) Prime Minister Narendra Modi, Andhra Pradesh CM Chandrababu Naidu and others at the foundation-laying ceremony of Amravati (Below) An artistic impression of Amravati narendramodi.in

capital due to some irritants between him and Telangana Chief Minister K Chandrasekhar Rao. Both states had fought for Hyderabad city, the cash-rich capital of united Andhra Pradesh and, eventually, they had to reconcile with accepting it as a joint capital till 2024. Neither has made peace with the decision and both are now facing problems of adjusting to their new status with unfinished issues involving employees, division of assets, sharing of water and so on. CHOICE OF CAPITAL Why did Naidu choose Amravati located 290 km away from Hyderabad? It is because of its huge potential. He wants it to be a rival to Hyderabad as the historic city will combine mythology, history and modernity. Amravati is one of the five sacred places of Lord Shiva that is called “Pancharavams”. History shows that the Telugu kings Shatavahanas ruled with Amravati as their capital and later,

Ishkwakas, Kakatiyas and even Muslim kings did the same. Gautama Buddha was believed to have visited this place. His Holiness the Dalai Lama had conducted a Kalachakra festival here a few years ago. It has also been declared by the Union government as one of the 12 heritage cities of the country. So Amravati boasts of more ancient history as compared to Hyderabad, which was built 400 years ago by the Qutub Shahi dynasty on the Musi River. Located on the banks of Krishna in picturesque surroundings, Amravati can be built as a twin city to Vijayawada which is just across the river, like Hyderabad and Secunderabad. It is also equidistant between coastal Andhra and Rayalaseema. It took more than 16 months for Naidu to start work. The seat of the government is proposed on a grand scale to match the world’s modern cities in aesthetics, infrastructure, liveability, connectivity and hisUNI

December 15, 2015

INDIA LEGAL December 15, 2015

STATES/ Amravati Vs Hyderabad

Photos: UNI

ICONIC BUILDING Charminar in Hyderabad, where the old and the new exist seamlessly

December 15, 2015

toric importance. The city is being built with expertise from Singapore at a cost of about $ 2 billion on a public-private partnership model. The state government has signed a memorandum of understanding with the Singapore government, which will construct the core capital region, comprising government buildings, in exchange for 10,000 acres of land in other parts of the city which it will develop for real estate. Naidu has also roped in some help from Japan. The center has given approval for a 26 km metro project in Vijayawada, at an estimated cost of `6,823 crore and a greenfield airport. Officials say that the state expects $30 billion in investments over the next decade. Infrastructure projects proposed in the master plan will require $16.5 billion, according to one estimate. Prime Minister Narendra Modi laid the foundation stone for the new capital on October 22, Vijayadasami day. Water and soil from 16,000 villages in the state, 33 rivers and holy shrines across the world have been collected and sprinkled in the 8,352 sq km Amaravati Capital Region. Modi brought water from river Jamuna and soil from parliament.

FUTURISTIC CAPITAL The master plan for the new capital envisages a core capital, capital city and capital region in three layers boasting of tall glass structures, boulevards, wide roads and a pedestrian way, metro and river-way transport and walkways. A water taxi service like in Venice is also being planned. The core capital will consist of the Raj Bhavan, a secretariat and an assembly but financial support for these structures has to come from the Union government as specified in the Andhra Pradesh Reorganization Act. The 7,325-sq km Capital Region Plan is the first of a three-stage master plan for the capital city. Amravati will be a “blue and green” city involving nine mini cities dedicated exclusively to entertainment, education, health, economy, justice, hardware, electronics and tourism. Till now, the central government has allocated `1,500 crore. The new capital is planned for 1.40 crore people by 2050 and for creating 40 lakh jobs in the next few years. According to officials, in the first phase, 95,000 jobs will be created followed by 1,60,000 in the second, 52,000 in the third, 1,77,000 in the fourth and 1,13,000 jobs in the fifth phase. The Andhra Pradesh government, through the AP Capital Region Development Authority, has acquired some 33,000 acres of land through a land pooling scheme. If government land is tagged, the land pool swells to 54,000 acres creating a massive land asset. Naidu may face many challenges in fulfilling his dream. The first is the political challenge. Naidu is not on a strong wicket as the opposition parties, including the YSR Congress led by Jaganmohan Reddy, the Congress and the Left are critical of his inability to get special status for Andhra Pradesh. Prime Minister Modi announced no special package on the occasion of the capital’s foundation laying ceremony; he just

stated that the center would stand “shoulder to shoulder” with Andhra Pradesh. MOBILIZING FUNDS Secondly, Naidu has to look elsewhere to mobilize funds for building Amravati. But despite his excellent marketing abilities, will he be able to attract finance? The fiscal deficit of Andhra Pradesh is more than `18,000 crore as compared to the cash-rich Telangana. While developing Cyberabad as part of the Hyderabad city, Naidu was in complete control and got finances from the center, which survived on his party’s support. Now the BJP has its own majority and TDP is a junior partner in the NDA. Modi has to balance requests from all the states. Thirdly, there is criticism from other regions of the new state that they have been neglected and that regional imbalance is being created by diverting development funds meant for backward regions like Rayalaseema to the proposed capital. Fourthly, although Naidu has acquired 33,000 acres, the opposition is critical of the acquisition process, and some farmers and civil society groups have moved courts claiming that environmental laws have been violated. It was also alleged that legislators and other TDP functionaries had coerced the farmers to sell their land. Fifthly, there is the problem of Naidu’s continuity as CM. If the capital is to be built by 2024, he should come back to power after the 2019 assembly polls. That is why he plans to complete phase-I by 2018. It depends on how he establishes himself politically and whether he will be able deliver on all fronts. COMPETITION Lastly, it also depends on how Naidu deals with neighbouring Telangana. The Telangana Rashtra Samithi (TRS) had accused Naidu of being the mastermind in the recent cash-for-vote scandal, involving the buying over of MLAs. And as a competition to the Tirupati temple, Chandrasekhar

Rao is now developing Yadagirigutta, a temple town 50 km from Hyderabad. Telangana has held massive overseas roadshows and has attracted investments from Amazon.com and other companies. Naidu, on the other hand, without even a capital, has attracted Japan’s SoftBank group in partnership with Bharti Enterprises, and Taiwanese firm Foxcom has promised $20 billion in solar and hybrid energy projects. Airbus and Essel are also likely to invest. However, setting aside all bitterness, Naidu showed some statesmanship by personally inviting his Telangana counterpart and the latter responded warmly by attending the function. If this is taken forward, both the cities will shine as jewels. The two CMs should realize that complementing each other is more beneficial than being competitive. If Andhra could leverage its coastline and fertile lands and Telangana could develop its mineral-rich areas and benefit from the economic potential of Hyderabad, both states would benefit. Hyderabad is in the same class as Mumbai, Chennai or Bangalore. Amravati could develop into a modern city and both Hyderabad and Amravati can be the pride of the Telugu people. IL

UNITY IS BETTER (L to R) Andhra Pradesh Chief Minister Chandrababu Naidu and his Telangana counterpart, Chandrasekhar Rao

The CMs of Andhra Pradesh and Telangana should realize that complementing each other is more beneficial than being competitive.

INDIA LEGAL December 15, 2015

STATES/ Rajasthan/Temple Land Issue

Anil Shakya

Can a Deity Own land?

A Rajasthan High Court judgment has held that if temple lands are transferred to a tenant for cultivation, they cannot be immune from acquisition by the state. It has been challenged in the apex court By Venkatasubramanian

LAW REIGNS SUPREME The top court will decide the limits of a deity’s land rights

December 15, 2015

N Mahant Damodar Dass vs State of Rajasthan, the Supreme Court is set to hear an interesting question of law—can a temple deity, legally recognized as a “minor”, be entitled to own land attached to the temple and can the property be cultivated on his behalf by “sevaits” (pujaris or guardians)? The Rajasthan High Court had given a nuanced verdict in the case in July and the appellant in the Supreme Court, a pujari, has challenged the correctness of that decision as

it has gone against his interests. LAND CATEGORIES In Rajasthan, prior to abolition of jagirs by the Jagirs Act of 1952, there were two categories of land—lands held by the ex-rulers, known as “khalsa lands” and those held by jagirdars as “jagir lands”. The essential features of a jagir are that it was held under a grant from the ruler, and that grant is the land revenue. The word “jagir” connotes state grants, which conferred on the grantees the

rights in respect of land revenue. The Jagirs Act of 1952 was found to fall within the ambit of Article 31A of the constitution, by which the jagirs were abolished. The Jagirs Act of 1952 is a legislation which aimed at acquisition of property, whereas Section 20 of the Act exempted properties which were dedicated for religious services. The Supreme Court had held that when property is given absolutely for the worship of an idol, it vests in the idol itself as a juristic person. This view has been consistently accepted in a long series of judicial decisions. The idol is capable of holding property in the same way as a natural person. The Supreme Court had held that the deity has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, be given to the manager of the estate of an infant heir. The question before the High Court, however, was whether the idol is capable of cultivating the land personally. It was argued before it that a person who is subject to any physical or mental disability shall be deemed to cultivate the land personally if it is cultivated by the servants or by hired laborer. In other words, an idol or a Sansthan that would fall within the meaning of the word “person” can well be regarded to be subject to a physical or mental disability and land can be cultivated on its behalf by servants or hired laborers. Thus, it was urged that the idol would be in the same position as a minor and it can certainly cultivate the land personally. DIRECT NEXUS The High Court rejected this contention by holding that the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through someone else. Relying on a Supreme Court judgment, it held that in order to claim a certain cultivation as a personal cultivation, there must be a direct nexus between the person who makes such a claim and the agricultural processes or activities carried on the land. In other words, all

the agricultural operations, though allowed to be done through hired labor or workers, must be under the direct supervision, control, or management of the landlord. It is in this sense that the words “personal supervision” must be understood. The High Court held that the legal requirement of personal supervision under the category of personal cultivation does not admit of an intermediary between the landlord and the laborer, who can act as agent of the landlord for supervising the operations of the agricultural worker. It makes no difference whether the landlord is a juristic person or a natural person, the High Court reasoned. In other words, the cultivation of the land concerned must be by natural persons and not by legal persons, the High Court observed. In another case, the Supreme Court held that the idol would be in the same position as a minor and it can certainly cultivate the

The Supreme Court had held that when property is given absolutely for the worship of an idol, it vests in the idol itself as a juristic person. The idol is capable of holding property in the same way as a natural person.

DIVINE RIGHT Every deity, such as Rajasthan’s Karni Mata (left), has a juridical status

INDIA LEGAL December 15, 2015

STATES/ Rajasthan/Temple Land Issue

RICH TEMPLE Southern shrines like the Meenakshi temple in Madurai have traditionally owned large tracts of land

IN GOOD FAITH A queue in Karni Mata temple at Deshnoke. The apex court holds that deities must have a direct link to cultivation of land with the temple

According to the High Court, the Jagirs Act of 1952 took away all the rights of the jagirdars, including Hindu idols, as dolidar or muafidar on the land cultivated by the tenants. land personally. It was held that in case the idol is treated to have cultivated the land, it should be personal cultivation in which a direct nexus should be established between the person who makes such a claim (Hindu idol) and the agricultural processes or activities carried on the land. It was held that all the agricultural operations, though allowed to be done through hired labor or workers must be under the direct supervision, control or management of the landlord, without any intermediary. The concept of juristic person, the Supreme Court held, has to be understood in the sense that such juristic person must cultivate the land and have direct nexus with the cultivation. The Supreme Court also held in that case that it is the deity/idol or the Sansthan which owns and holds the properties. It is only the possession and the management which vests in the manager. Relying on the Supreme Court’s previous judgment, the High Court held that the deity

December 15, 2015

could only hold such lands in jagir, where the sevait/pujari was cultivating for such deity. They could have direct nexus with agricultural operations either themselves or through hired labor engaged by them as to claim to be khudkasht (personal cultivation) and to be protected from resumption/acquisition under the Jagirs Act of 1952. PUJARI’S RIGHT The High Court further held that if the land was given for cultivation to a tenant, or was cultivated through a tenant, such land became khatedari of (entered a state of being occupied by) the tenant. According to the High Court, the Jagirs Act of 1952 took away all the rights of the jagirdars, including Hindu idols, as dolidar or muafidar on the land cultivated by the tenants. They ceased to have any right on such land. The sevait/pujari could not have any independent status to have claimed any right over such land cultivated by tenants. Such tenancy could also not be regarded as sub-tenant of Hindu idol to confer any right on it, the High Court held. The High Court thus decided the issue in favor of the state and against the sevait/pujari claiming the land to be saved by the Jagirs Act of 1952. It held that the land held in jagir by Hindu idol as dolidar or

muafidar cultivated by a person other than the sevait/pujari personally or by hired labor as a tenant of the deity, shall vest in the state, after the Jagirs Act of 1952. The Hindu idol, even if it is treated to be a perpetual minor, cannot continue to hold such land, the High Court explained. A tenant of such land and cultivating it, acquired the rights of khatedar (tenant/renter of agricultural land) of the state. The name of Hindu idol from such land had to be expunged from the revenue records with sevait/pujari having no right to claim the land as khatedar. Consequently, they had no right to transfer such lands, and all such transfers have to be treated as null and void in contravention of the Jagirs Act 1952, and be resumed by the state. The High Court, citing the Hindu Minority and Guardianship Act, 1956, held that immovable property of minor cannot be sold without the permission of the court, and hence the deity lands cannot be alienated except for legal necessity, after obtaining the permission of the court. The appellant in the Supreme Court, a pujari, told the court that that the High Court had correctly laid down the law by saying that the pujaris who were cultivating the land themselves or through hired labor

would be protected as registered tenants under the Jagirs Act, 1952. The appellant’s counsel in the Supreme Court conceded that a pujari of a temple is trustee of the land vested in a temple and is not entitled to alienate the property. The appellant, however, appears to be aggrieved with the result of the High Court’s decision, which is that all lands of deities would now vest with the Rajasthan government, which has even issued an advertisement for auction of deity lands. The appellant said this ruling affected lakhs of small temples/deities, primarily in rural areas and small villages. The likely economic loss to be suffered as a result was thus interpreted by the appellant to be an unreasonable restriction on the freedom of religion itself. The appellant has therefore challenged the High Court’s judgment in the Supreme Court mainly on the ground of infringing his right to profess and practice religion—a ground which the High Court did not consider in its judgment. As the court is set to hear further arguments in the case on January 4 next year, it cannot help revisiting the issue of secularism, which is one of the basic features of the constitution. IL

The Hindu idol, even if it is treated to be a perpetual minor, cannot continue to hold such land. A tenant of such land cultivating it acquired the rights of khatedar (renter) of the state.

INDIA LEGAL December 15, 2015

HERITAGE/ Rajasthan/ Kuldhara Restoration

did not agree to the alliance, the village would regret it. Upon hearing this, the elders of Kuldhara and 84 surrounding villages held a council. By then, Singh in a fit of revenge, imposed heavy taxes on Kuldhara which the villagers found difficult to pay. But instead of submitting to Singh’s demands, one night the villagers abandoned the village as well as their ancestral homes. Before leaving, they put a curse on Kuldhara —anyone who settles there would come to grave harm. Ever since, the village has remained deserted. It is believed that a few families who later tried to settle down there were driven away by strange paranormal sightings and happenings attributed to spirits and ghosts. Luckily, Kuldhara has been declared as a protected village by the Archaeological Survey of India. Today what remains are rows of deserted houses, some in a state of utter disrepair. There is a temple, though it has no deity. The landscape is dry and desert-like and Kuldhara blends into the landscape and wears a desolate, forlorn look of a town or village that has been abandoned.

From Ghost Town to Glory

Kuldhara, near Jaisalmer, was abandoned about two centuries ago. Legend has it that it is cursed and haunted by spirits. In a welcome move, the Rajasthan tourism department is reviving and developing it into a tourist attraction By Prakash Bhandari in Jaipur

SPOOKY FEELING (Above) Today, Kuldhara blends into the alien desert environment and wears a desolate, forlorn look

December 15, 2015

HE Rajasthan government has taken the lead in developing a ghost town (or should we say village) into a tourist attraction. Kuldhara, currently abandoned and in ruins, is located 17 kilometers from Jaisalmer, home to Sonar Kella, the historic fort that attracts thousands of tourists every winter. It is now being restored and the state government has started the process of conservation. In the first phase, some havelis and a temple are being brought back to their lost glory using the same technique and raw materials used by the original builders. The state government is serious about the

restoration project. Shailendra Agarwal, principal secretary, tourism and archaeology, said: “Kuldhara has a story to tell and a look at the ancient village would give the visitor an impression that once it was a prosperous place. We have decided to restore the glory of this village and in the first phase, `4 crore has been earmarked to restore some of the historic havelis. The idea is to encourage tourists to extend their stay in Jaisalmer so that apart from the famed fort and the sand dunes, they will also be able to see Kuldhara.” BAD TIMES Till some two centuries ago, Kuldhara, in the thick of the Thar Desert, was a thriving center of trade that connected the Sindh province (in undivided India) with the rest of the country. That was till it fell upon bad times. Legend has it that the then Kuldhara chieftain, a Rajput Paliwal Brahmin, had a stunningly beautiful 18year-old daughter who caught the fancy of the debauched dewan of Jaisalmer, Salam Singh. Word was sent to the village chieftain that he wanted to marry his daughter. Salam Singh was so keen to marry the girl that he also held out a threat—if the girl’s father

HAUNTED VILLAGE? Recently, a team from the Paranormal Society of Delhi visited the village after hearing stories about it. Equipped with electronic equipment, it scanned the entire village and encountered strange happenings. From moving shadows and haunting voices to hand imprints of children on cars, the team members lived through one of their scariest nights while they were there. However, the team could not concretely detect any supernatural phenomenon in Kuldhara. Perhaps the alien desert environment was playing tricks on their mind. A team of geologists from the Indian National Science Academy, including famous geologist Professor AB Rai of Udaipur’s ML Sukhadia University, presently working at Kuldhara, provided a more rational clue to the mystery. It discovered that the region was located on an active earthquake faultline. The geologists believe that a natural calamity or the fear of one must have forced the villagers to abandon their village in 1824-1825. Their conclusion is that the story of the Paliwal Brahmins abandoning the village overnight might have nothing to do with the conduct of Singh.

Photos: Vimal Bhatia

However, there is no record of the village being abandoned overnight because of some impending natural calamity on the day of Raksha Bandhan, two centuries ago. Rai said: “The evidence of destruction is visible in each and every house in this village and surrounding villages. It reminds one of the devastation seen in the remains of the Harappan cities like Mohenjo Daro and Lothal, which cannot be linked to the normal processes of weathering and erosion. Pictures of collapsed walls, scattered dressed stones, fallen joists and pillars lying strewn all over rooms in the houses speak of damage and destruction not generally witnessed in unoccupied old houses standing for hundred years or more.” He adds that if the ASI digs here, more facts would come to light. Professor Harsh, another member of the team from Banaras Hindu University, further elaborated: “The day the Paliwals migrated was a full moon night, which is when most earthquakes occur. There is a possibility that on that day, a severe earthquake might have struck because of which waters in rivers, ponds and wells may have drained, forcing Paliwals to migrate from Kuldhara.” He explained that the faultline ran through several other Paliwal dominated villages in the region. Now that Kuldhara will be restored and promoted into a tourist attraction, real stories hidden beneath its ruins will surface. Perhaps there is a history that needs to be discovered which will be enlightening as well as fascinating. If all goes according to plan, then those visiting Jaisalmer will hopefully have another must see destination in a year or two. IL

EXPLORING MYTHS? A team of archaeologists inspecting Kuldhara

“We have decided to restore the glory of Kuldhara. In the first phase, `4 crore has been earmarked. The idea is to encourage tourists to extend their stay in Jaisalmer...” — Shailendra Agarwal, principal secretary, tourism and archaeology, Rajasthan

INDIA LEGAL December 15, 2015

DIPLOMACY/ Row over Koh-i-Noor JEWEL IN THE CROWN Queen Elizabeth II wearing the Koh-i-Noor-studded crown

PRIZED POSSESSION (L-R) Shah Jahan’s Peacock Throne had been adorned with the precious diamond Nadir Shah of Iran took the coveted diamond with him as war booty and gave it the name Koh-i-Noor

UNI

Whose Diamond is it Anyway? A group of campaigners is seeking the help of British courts to get the Koh-i-Noor back to India. Will this bring to an end a dispute which has raged for years over the world’s most precious gem? By Sajeda Momin in London

December 15, 2015

HERE are three must-sees on the list of every Indian tourist who comes to the UK— Buckingham Palace, Houses of Parliament and the Koh-i-Noor diamond. The first two they can see for free from outside, but to see the third, they must visit the Tower of London, buy an entrance ticket costing 25 GBP (`2,500) and see one of the rarest and most precious stones through a glass case

amidst tight security. However, for most Indians, it’s a small price to pay to see the symbol of the loot the British brought back from India during their 200-year rule. Since Independence, there have been repeated demands by various Indian governments that the Koh-i-Noor, once considered the largest uncut diamond in the world, should be returned. But these requests have been ignored or rejected. The latest was in 2013 when Prime Minister David Cameron on a visit to India defended Britain’s right to keep the diamond, arguing that he didn’t believe in “returnism” and didn’t consider it “sensible”. LEGAL ACTION However, for the first time, a group of campaigners comprising businessmen and actors and calling themselves the “Mountain of Light”—the English translation of Koh-iNoor—are seeking the help of British courts to get the diamond back. David de Souza, co-founder of the Indian leisure group, Titos, is helping to fund the new legal action and has instructed British lawyers to begin high court proceedings. “The Koh-i-Noor is one of the many artefacts

In their bid to get the diamond back, British lawyers will base their case on the Holocaust Act (Return of Cultural Objects), passed by the British Parliament in 2009. taken from India under dubious circumstances. Colonization did not just rob our people of wealth, it destroyed the country’s psyche. It brutalized our society, traces of which linger even today in the form of mass poverty, lack of education and a host of other factors,” said De Souza. British lawyers, instructed by the Mountain of Light group, will base their case on the Holocaust Act (Return of Cultural Objects), passed by the British parliament in 2009. This allows national institutions in the UK the power to return art stolen by the Third Reich during and preceding World War II. Lawyers will argue why there should be one law for artefacts stolen by the Nazis and another for those stolen by others. Satish Jakhu, a UK lawyer with Birmingham-based law firm Rubric Lois King, said they would make the plaintiff ’s claim INDIA LEGAL December 15, 2015

DIPLOMACY/ Row over Koh-i-Noor

David Cameron defends Britain’s right to keep the diamond, arguing that he doesn’t believe in “returnism” and doesn’t consider it “sensible”. under the common law doctrine of “trespass to good”, arguing that the government had stolen the diamond. He also said that if need be they would be taking their case to the International Court of Justice in The Hague. The 800-year-old diamond is considered to be worth around GBP 100 million, though its real value is priceless.

LITANY OF LOOT? Greece too has been demanding the return of the Parthenon marbles from British Museum

December 15, 2015

SPOILS OF WAR Believed to have been mined from the Kollur Mine in Guntur district of Andhra Pradesh sometime during the 13th century reign of the Kakatiya dynasty, the diamond was said to have been installed in a temple of a goddess as her eye. From the early 14th century, the diamond became one of the spoils of war for various conquering armies. From the Khilji dynasty to the succeeding dynasties of the Delhi Sultanate, the diamond was passed

on. When it came into the possession of Babur who established the Mughal empire in the 16th century, the precious stone became known as the “Diamond of Babur”. Shah Jahan had the diamond fixed into his ornate peacock throne. During the reign of Aurangzeb, the diamond was clumsily cut by a Venetian lapidary named Hortenso Borgia who reduced the weight of the stone to 186 carats. It is said that when originally mined, it was 793 carats. In 1739, Nadir Shah carried off the Peacock Throne and the Koh-i-Noor to Persia. It is also Nadir Shah who gave the diamond its current name by exclaiming Koh-i-Noor, meaning “mountain of light” in Persian. After Nadir Shah’s assassination, the diamond fell into the hands of Ahmad Shah Durrani, Emir of Afghanistan. And in 1830, his descendant, Shujah Shah Durrani, was deposed and managed to flee with it to Lahore where the Sikh Maharaja, Ranjit Singh, forced him to surrender it. It was from here that the Koh-i-Noor fell into the hands of the British. In 1849, the province of Punjab was formally declared part of British rule and Lord Dalhousie, who ratified the Treaty of Lahore, considered the Koh-i-Noor a spoil of war. Dalhousie arranged for it to be presented to Queen Victoria and Maharaja Ranjit Singh’s 13-year-old son Dulip Singh was sent to London to do the honors. Prince Albert ordered the diamond be recut to improve its brilliance. After being reduced in weight by 42 percent, the new oval-shaped, 105 carat Koh-i-Noor was mounted into a broach for Queen Victoria. Legend has it that the Koh-i-Noor can only be worn by God or women, and whoever wears the jewel will become extremely powerful. However, if a man wears it, he will meet an unfortunate end.

It was passed to British consorts Queen Alexandra in 1902 and Queen Mary in 1911 for their coronation crowns and then in 1937, it went to the consort of King George VI, Queen Elizabeth, the current queen’s mother and was set in the Maltese Cross where it sits today. The Queen Mother wore the crown at the coronation of her husband and again in 1953 at the coronation of her daughter, Queen Elizabeth II. The crown was placed on top of the Queen Mother’s coffin as she lay in state in Westminster Hall when she died in 2002, and the rest of the time, it remains on display with other crown jewels in the Tower of London. If, and when, Camilla becomes Queen consort, it is likely that the Koh-iNoor will be placed in her crown. However, the campaigners are hoping that before that happens, the British courts will rule in their favor and the gem will be back in India. Keith Vaz, UK’s longest-serving British Indian MP, has been backing the campaign for the return of the Koh-i-Noor. After Shashi Tharoor’s speech at Oxford University demanding Britain pay reparations to India for plundering it for 200 years went viral a few months ago, Vaz had again brought up the issue of the Koh-i-Noor. “Pursuing monetary reparations is complex, time-consuming and potentially fruitless, but there is no excuse for not returning precious items such as the Koh-i-Noor diamond,” said Vaz. Of course, there are those who sit on the other side of the debate too. “Those involved in this ludicrous case should recognize that the British crown jewels are precisely the right place for the Koh-i-Noor diamond to reside, in grateful recognition for over three centuries of British involvement in India, which led to the modernization, development, protection, agrarian advance, linguistic unification and ultimately the democratization of the sub-continent,” said Andrew Roberts, a British historian. OTHER CLAIMS India is not the only country which has demanded the return of the Koh-i-Noor. Pakistan has also put in a claim in the past arguing that it was taken to Britain after the Treaty of Lahore in undivided India, and as

“Pursuing monetary reparations is complex, time consuming and potentially fruitless, but there is no excuse for not returning precious items such as Koh-i-Noor diamond.” —Keith Vaz, UK’s longest-serving British Indian MP Lahore is now in Pakistan, it should be returned there. The Koh-i-Noor is not the only spoil of war being claimed from Britain. The Chinese government claims the British Museum holds as many as 23,000 artifacts looted in the 19th century from Beijing alone, which naturally they would like returned. Greece has been demanding the Parthenon marbles, also on exhibit at the British Museum for years. Asking for the return of these objects is something of a ritual that states observe with solemn regularity, said one British bureaucrat. But now with the case being filed in British courts, it will be interesting to see what happens to the Koh-i-Noor. If India is able to get the diamond back, then it will certainly set a precedent and open the floodgates for other countries to take the same legal route. IL INDIA LEGAL December 15, 2015

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Justice J Chelameswar

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MEENA TAHIR MENON MAHMOD Haji Ali ute 50 Is Muslim law Disp personal still valid?

THAT COU NT

Your Lordships, We be b g to differ

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BIKRAM VOHRA: Air travails of the disabled 64

RK MISRA: Wanting a Womb 26

VIPIN R RAMASUBRAMANIAN: PUBBY: Bad blood in 6WDWHV RIIHU Madras HC 42 largesse to ODZ RIĂ&#x20AC;FHUV

Justice Madan B Lokur

SHOBHA JOHN:

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ICFAI organizes conclave

ational Law University, Delhi, in collaboration with Program in Comparative Media Law and Policy, University of Oxford, is organizing the South Asia Round of the 2015-16 Price Media Law Moot Court Competition from 26-29 November, 2015. This yearâ&#x20AC;&#x2122;s edition has participation from 12 teams across three countries after qualifying through initial rounds. The moot aims to foster and cultivate interest in freedom of expression issues and the role of media and information technologies in societies around the world.

Donâ&#x20AC;&#x2122;t miss a single issue of this independent, scintillating new fortnightly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com

he Institute of Chartered Financial Analysts of India (ICFAI) Law School organized a conclave on â&#x20AC;&#x153;Independence of Judiciary: Collegium Systemâ&#x20AC;? at its campus in Hyderabad. It was attended by students and faculty of the institute. Justice G Yethirajulu, chairman of the Andhra Pradesh Bar Council A Narsimha Reddy, and senior advocates Vidya Sagar Rao, L Ravi Chander and Vivek Reddy were among the important dignitaries. All speakers agreed that there should be transparency in the appointment of judges.

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Legal Spectra 2015 OA National Institute of Law, Bhubaneswar, is organizing â&#x20AC;&#x153;All India Law School Meetâ&#x20AC;&#x201C;Legal Spectra, 2015â&#x20AC;?, the fourth edition of its annual seminar, from December 17-20, 2015. Legal Spectra 2015 covers a wide variety of events that include competitions, literary events, a fine arts competition and other cultural events. The moot court competition will be the flagship event.

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NLSIU to publish a book on RTI

he National Law School of India University (NLSIU), Bangalore, plans to publish a three-part book titled Good Governance â&#x20AC;&#x201C; The RTI Way, on the occasion of a one-day national seminar to mark 10 years since the passage of the RTI Act. The first book in this series, titled Contracts, Agreements and Public Policy in India, was released at the NLS Convocation, 2015 by Chief Justice of India HL Dattu.

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December 15, 2015

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IT OUT About 78, 800 bank employees, including 37,000 officers, will be retiring in the next one year. The electricity bill of Indian Railways is around `12,500 crore and has been increasing at the rate of 5 percent a year. The Indian Railways is the backbone of long distance public transport in the country. It daily carries over 2 crore passengers. India has 712 universities, 37,204 colleges, 30 million students and 1.3 million teachers. The total number of pending court cases in India is 32,336,744. At least 1,598 PILs are pending in the Supreme Court, the oldest having been filed 23 years ago. 38 percent of police complaints relate to economic offenses. India has only 11 judges for every 10 lakh people (US has 107). During January-June 2015, Santhara, the Jain practice of dietary abstinence leading to death, was chosen by 118 people to end their life. Air India has 1,400 pilots, including 650 in the commander category. There is only one doctor for every 1,700 people in the country, which has 54,348 seats in medical colleges.

India is the least generous country among eight South Asian nations and ranks a dismal 106th in a global report of people who help strangers, donate money or volunteer their time for a good cause. The research by London-based Charitable Aid Foundation (CAF) found that more than 334 million Indians helped a stranger, over 183 million gave money and more than 156 million volunteered their time. While this generosity is attributed to the country’s large population, the proportion of people who give is actually lower than in many other countries. The proportion of people in India donating to charity in 2014 had fallen to 20 percent—down eight percentage points on 2013. Though Maharashtra has the highest number of airports and airstrips in India, it has commercial operations from just four airports. The state has 28 airports and airstrips, of which four are under-construction or proposed, two are private and one is not in use. According to the latest statistics of the home ministry, India registered 8,083 dowry deaths in 2013 with first three ignominious spots going to Uttar Pradesh (2,335 deaths), Bihar (1,182) and Madhya Pradesh (776), respectively.

Y L D R O W ISE

1. To cut a dash A: To injure B: To impress C: To succeed D: To fail 2. Look sharp! A: See for yourself! B: Get ready! C: Don’t pretend! D. Be quick! 3. Dead men A: Martyrs B: Discarded boxes C: Fake coins D: Empty bottles 4. Jim-jams A: Money B: Depression C: Children D: Utensils 5. To skedaddle A: To depart quickly B: To cheat C: To slip D: To collide 6. Moxie A: Sleeping pill B: Big taxi C: Courage D: Maternal aunt 7. To step on the gas A: To hurry B: To streamline C: To run away

Have fun with English. Get the right answers. Play better scrabble. By Mahesh Trivedi

D: To take risk 8. The witching hour A: Sunrise B: Midnight C: Prayer time D: Hour before death 9. Grotty A: Gruesome B: Miserly C: Strong D: Unpleasant 10. On with the motley! A: Join the crowd! B: Let’s begin! C: Run! D: Start dancing! 11. To stump up A: To stun B: To mess up C: To pay D: To ruin 12. Scuttlebutt A: Thief B: Poor joke C: Taunt D: Gossip 13. Motormouth A: Nagging wife B: Constant talker C: Politician D: Bad singer 14. Catechist A: Religious teacher

B: Copywriter C: Opportunist D: Social activist 15. Frugivore A: Man eater B: Hunter C: Hunger striker D: Fruit eater 16. Killing of son A: Fratricide B: Filicide C: Sororicide D: Progenicide 17. To spin a long yarn A: To work hard B: To work overtime C: To exaggerate D: To mesmerize 18. Put a sock in it! A: Act fast! B: Clean it! C: Go away! D: Shut up! 19. To shuffle off this mortal coil A: To die B: To forget C: To forgive D: To settle 20. To penelopize A: To advise B: To boast C: To procrastinate D: To feign ignorance

ANSWERS

1. To impress 2. Be quick! 3. Empty bottles 4. Depression 5. To depart quickly 6. Courage 7. To hurry 8. Midnight 9. Unpleasant 10. Let’s begin! 11. To pay 12.Gossip 13. Constant talker 14. Religious teacher 15. Fruit eater 16. Filicide 17. To exaggerate 18. Shut up! 19. To die 20. To feign ignorance

FIGURE

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

—Compiled by Mahesh Trivedi

December 15, 2015

INDIA LEGAL December 15, 2015

PEOPLE / Inheritance Of Loss

BACK-BREAKING ROUTINE Laila, 8, works at a brick-making factory outside Kabul NOT A BED OF ROSES Young marigold sellers in New Delhi eagerly await customers

LEARNING TO COPE A mother with a mentally challenged child at Bengaluruâ&#x20AC;&#x2122;s Asha School for Development Disabilities

END OF THE LINE A migrant child waits to cross the border from Greece into Macedonia

December 15, 2015

LITTLE SAVIOR A boy salvages recyclables from a fire that killed two and rendered 500 families homeless in Malabon, Manila

â&#x20AC;&#x201D; Compiled by Kh Manglembi Devi Photos: UNI