Final india legal 15 February 2015

BCCI SC judgment on N Srinivasan provides him enough room to wriggle out 30

HL DATTU’S LETTER CJI’s concern over frivolous complaints 10 www.indialegalonline.com

NDIA EGAL I L February 15, 2015

`100

STORIES THAT COUNT

INDO-US NUCLEAR DEAL

FINALLY, THE FUSION

The arduous work on liability laws has seemingly yielded a positive result. But is it the end of troubles for the N-deal? 16 ALS0

EUROPE UNDER SIEGE Faced with radical Islam’s threat, will it bury its open door policy? And, is Islam really unforgiving? 56

MAKE IN INDIA Lessons on messy rules from Nokia India’s hasty exit 20

ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU SECTION 66A License to smother 12 free speech?

FIVE IMPORTANT EVENTS NJAC of 2014 that will Still on a 60 bumpy ride 10 change our lives

NDIA L EGAL I EGAL

www.indialegalonline.com

January 31, 2015

Y 33 .com OBITUAR KrishnawwIyw.ierndialegalonline `100 stice of an the life years 36 Ju up re 14 by 15 case to 31, 20 mber Dece pionage layed projects es e ls How a faientist and de NT COU ISRO sc THAT

IA L D N I

`100

STORIES THAT COUNT

S

RIE STO

ALIGARH MUSLIM UNIVERSITY

CAMPUS RUMPUS

e Rap ander Aft

special report on what women want 18

14

l Regd

. No.

UP/G

BD -19

7/201

4-16

d laws an Thoughlines are in l guide , the medica place ity is w fraternss about hom s cluele l with victi to dea al abuse 12 of sexu Posta

RNI

No. UP

ENG/

/25 2007

763

Mies?

IS ON actionar R indu re F F ult of H ALS0 A sa as S e - ng under th Ei O PATENT PREDATORS N weakeni Is Mod

? 43 LOO ILD 54 ATER ’S W Y CH S CK M MAMATA SO : G BA 28 AL CAM BRIN S A ADH SAR

PLU

20

After turmeric, basmati and neem, the West eyes khadi. Can India ward off the threat? 34

ENC

COAST GUARD A senior officer, denied promotion, knocks at judiciary’s doors 28

LETTER FROM THE EDITOR

INDERJIT BADHWAR

THE DEVIL IS IN THE DETAILS HE around seven-year-old Indo-US nuclear deal, or the Manmohan Singh-George Bush N-pact as it was sometimes called, when first signed, caused worldwide protestations among aggressive international non-proliferation “Ayatollahs”, as they were nicknamed by the pro-nuke lobby, as well as by domestic opponents who almost toppled the Congressled UPA coalition for “selling out” out India’s sovereignty to the US’ “neo-imperialistic” nuclear energy lobby.

Ironically, the leader of the very party—the BJP—that played a sterling role in the toppling game—is now making headlines across the world for having completed, with the blessing of President Obama, and to universal approbation, the thankless task started by the preceding prime minister.

The history and statistics of the pros and cons of creating energy supplies through nuclear reactors are elements that any reasonably well-informed high school child can Google today. Broadly speaking, while there is universal agreement that energy from coal is a hydrocarbon menace and global warmer, and that nuclear power is relatively “cleaner”, the downside is the danger of a Chernobyl-type meltdown and the proliferation of fissionable material or its falling into the hands of technosavvy terrorists for making nuclear bombs.

Bush had as difficult a time in getting the deal through the US Congress as did Man-

T

4 February 15, 2015

mohan Singh through parliament. The US House of Representatives and Senate were dead set against India (which had conducted its second N-test in 1998) receiving raw material, enriching uranium without having signed the Nuclear Non-Proliferation Treaty (NPT). India considered NPT discriminatory because the “haves” of the nuclear club were non signatories, and would agree only to basic IAEA safeguards.

T

here were huge legal wrangles—how would the fissionable material be tracked by the supplier nations? After the Chernobyl and Bhopal gas disasters that killed and maimed people like flies, how would criminal liability for such accidents be shared between supplier, manufacturer and operator? What guarantee was there that India, dependent on nuclear power for its needs, would not be subject to blackmail by supplier countries should they decide to twist India’s tail in case of an international, geopolitical dispute? And in the eyes of many countries, India could not be trusted to play a dominant, responsible, and stabilizing role in the Asia-Pacific region, especially with China flexing its muscle in the Indian Ocean.

But the basic needs didn’t change. What cannot be wished away is that India’s hunger for energy, as it accelerates infrastructure, speeds up defense production and IT, and mechanizes agriculture to maintain at least a 7 percent growth rate (excellent export market for US and Western economies struggling to emerge from economic

downturns), will grow. It plans to generate 63,000 MW of nuclear power by 2032—an almost 14-fold increase in current levels, says science writer Pallava Bagla. He estimates that India plans to build 40 more nuclear reactors in the next two decades.

T

he market runs into billions and billions of dollars and the competition is fierce.

Russia, says Bagla, is planning to build 20 reactors, France, six. GE and Westinghouse have acquired land in Gujarat and Andhra, and Westinghouse has already signed a Rs 100-crore “pre-early works” agreement with India to share safety data.

There’s little doubt that engineering giants are slavering at the prospect of getting into India—the sooner the better. Writer Seema Guha writes in our cover story: “The nuclear deal, as Modi said at the joint news conference is at the centerpiece of a transformed relationship between the world’s largest and oldest democracies.”

She adds: “Officials also worked round the deal-breaking Liability Law. While the law passed in parliament remains intact, the government will set up an insurance pool for the first few years to help create the fund required in case of an accident, where the Indian law makes the suppliers also liable. Making suppliers also pay is not part of international practice and global insurance companies refuse to provide this type of insurance to any reactor supplier.

“The government, which contributes to this fund, will also earn a premium on its investment.

After all, nuclear accidents do not happen that frequently. Operators anyway pay around one million dollars per year for every project they take on. This is in conformity with international best practices and will make it easier for other countries to build nuclear power plants in India.

This is the way out of the logjam that the two political leaders have been able to resolve. But all this is in principle and remains to be worked out.

The devil is in the details.”

Danny Roderick, president and CEO of Westinghouse, hoping to grab a $50 billion contract to build 10 large reactors in India told Bagla: “Happy that the two governments have come to an agreement. Still waiting to read the fine print of India’s nuclear liability assurance, to

The US has inked the deal with Modi, in whom they see a leader who can handle nuclear responsibilities and will ensure that India will not renege on its commitments. see if all is acceptable.”

And the gestation period is no cakewalk. The Americans have signed the deal not so much with India as much as with Modi in whom they see a strong and stable leader capable of handling nuclear responsibilities with strength and maturity and whose popularity will ensure that India will not renege on its commitments because of international or domestic political pressure.

But will Modi still be around when the new breed of US-made reactors start generating power 8-10 years from now? Will India learn to make cheaper and safer reactors on its own by then? Will alternative energy sources, towards which the US is itself moving, take precedence?

What would then happen to the legal, long-term manufacturing contracts?

S

ure, China is hell-bent on multiplying its sources of nuclear power: trebling it by 2020. But Germany plans to phase out nuclear power by 2022. India needs the power, that’s for sure. And Modi definitely deserves to bask in the glory of his diplomatic and strategic triumph, done with harmony and consensus. He also dealt on an equal basis with one of America’s toughest presidents, backed by the most powerful and formidable industrial lobby in the world.

The poor, wretched, homeless, unemployed pavement dwellers of India, sleeping in the cold under a drizzling winter sky will benefit neither this year nor the next from the potential economic benefits of the nuclear deal. Let us fervently hope their children will awaken to new jobs and new work places.

editor@indialegalonline.com INDIA LEGAL February 15, 2015

5

FEBRUARY 15, 2015

VOLUME. VIII

ISSUE. 11

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

LEAD

Decoding the N-Deal

16

India and the US busted a major logjam during Barack Obama’s India visit, pertaining to the Liability Law. But despite the euphoria, the fine print will determine the feasibility of the arrangement, writes SEEMA GUHA

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

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd and printed at Amar Ujala Publications Ltd., C-21 & 22, Sector-59, Noida, (UP) 201 301 (India). All rights reserved. Reproduction or translation in any language in whole or in part without permission is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd . Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd . The Publisher assumes no responsibility for the return of unsolicited material or for material lost or damaged in transit.

OWNED BY E. N. COMMUNICATIONS PVT. LTD. NOIDA HEAD OFFICE: A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi834002.

LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001.

PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023.

ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001.

6 February 15, 2015

SUPREME COURT

Straight from the CJI Justice HL Dattu writes to the Chief Justice of Karnataka, expressing his displeasure with frivolous complaints against the lower judiciary BUSINESS

Make in India? How? Prime Minister Narendra Modi is keen to boost Indian manufacturing. But the way Nokia, harangued by taxation issues, beat a hasty retreat is a clear indication of a messy business environment. VISHWAS KUMAR reports ACTS & BILLS

Ground realities While the country got busy with the ghar-wapsi debate, the Modi government ushered in a land ordinance, aimed at acquiring land for mega projects.

SABIHA FARHAT discusses what this portends for the common man

10 20 24

SPORTS

A full toss for Srinivasan

30

The Supreme Court in its judgment on conflict of interest in BCCI and IPL, has given the czar of Indian cricket a window to wriggle out of the mess.

SHANTANU GUHA RAY analyzes the judgment PHOTO ESSAY

A home to call my own

GLOBAL TRENDS

A continent in crisis

62

ALSO Will BJP’s election strategy be rendered redundant in Delhi?......36

While Christianity and Islam have always been at war, the recent acts of violence by radical Islamists will lead Europe to more deportations, more ghettoization, writes THOMAS FRIEDMAN A dehumanizing jail experience ...........…38

44

Why states are failing to curb hooch deaths.......42

An old-age shelter in Ahmedabad provides succor to the aged, shunned by their own families. FAYEZA PATHAN provides a glimpse into their lives

Can couples, surrogate mothers expect legal reforms?........................50 Dhoni’s retirement from Test cricket comes in for immense praise............68 BOOKS

Mars mission revisited The emperor of men’s maladies

52

Prostate cancer has emerged as one of the biggest health risks for men. SHOBHA JOHN describes the reasons, and the new technology at hand for cure RELIGION

What the Prophet preached

56

Islam is construed as a religion of hatred and vengeance. But ZOYA RASUL writes that, far from it, Mohammad’s life was a paragon of forgiveness

Reaching for the Stars, a book by Pallava Bagla and Subhadra Menon on India’s ambitious journey to the Red Planet, reveals some fascinating facts about our scientists’ efforts to make Mangalyaan a success. A review by RAMESH MENON

REGULARS

HEALTH

74 Badminton Association flouts all rules for players’ selection........................72

Quote-Unquote ...............… ................................................................8 Ringside ..............................................................................................9 Supreme Court..................................................................................12 Courts................................................................................................14 Is that Legal?.....................................................................................78 Wordly-wise .......................................................................................81 People ...............................................................................................82

Cover Design: AMITAVA SEN

INDIA LEGAL February 15, 2015

7

QUOTE-UNQUOTE

“Noisy minority cannot be allowed to gag patient majority.”

—President Pranab Mukherjee, on disruptions in parliamentary proceedings, forcing the center to take the ordinance route. India Today

“It turns out that Modi is getting even less sleep than me. But, of course that’s because he is still new.

After he’s been doing this for about six years maybe he will be able to get an extra hour.”

“It’s like anybody can use pressure tactics on the Censor Board. How do we do our job? I didn’t have the Censor Board supporting me.”

—Leela Samson, after resigning as chairperson of CBFC. The Times of India

“All of them are very happy. Now I am not Kiran Bedi, but Kiran didi for them.”

—BJP’s CM candidate for Delhi, Kiran Bedi, refuting rumors of resentment in the Delhi BJP unit over her selection. The Times of India

—US President Barack Obama, referring to Prime Minister Narendra Modi, at Hyderabad House

“It is a masterstroke by the BJP to bring Kiran Bediji and declare her the party’s CM candidate.... She will provide clean and effective administration.”

—Founder member of AAP, Shanti Bhushan, on the BJP’s choice for Delhi CM. The Hindu

“Being sad and being depressed are two different things. Also, people going through depression don’t look so, while someone sad will look sad. People talk about physical fitness, but mental health is equally important.”

—Bollywood star Deepika Padukone, talking about her struggle with anxiety and depression in 2014.

Hindustan Times

“PM is a good leader, a good human being and a man with foresight.”

—Chief Justice of India HL Dattu, in an interaction with media. The Times of India

“If there is complete failure of the system and there is no hope for the citizens… don’t you think we will be asked to take over so many dimensions of governance?”

—Chief Justice of India designate, Justice TS Thakur, on the role of judiciary in case of governance deficit. The Indian Express

8 February 15, 2015

Aruna

VERDICT Lawyers occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing has happened.

— Winston Churchill

INDIA LEGAL February 15, 2015

9

SUPREME COURT/ directive/hl dattu

CJI’s concerns over complaints the chief justice has shown concern for frivolous complaints against the judiciary

By India Legal Team

10 February 15, 2015

T

HE Chief Justice of India, HL Dattu (above) recently expressed his concern over the rising number of frivolous complaints filed against members of the subordinate judiciary which are received by high courts in various states.

In a “confidential letter” (left) addressed to DH Waghela, Chief Justice of Karnataka High Court, Justice Dattu wrote that most of these unsubstantiated allegations were aimed at tarnishing the image of the judiciary. Though some of these complaints may be genuine, a majority of them are made at the behest of those within and outside the judiciary who had vested interests with a personal agenda, he pointed out.

The CJI’s move comes after many complaints were received in high courts against the judiciary. He wanted all high courts to come out with a procedure which would tackle such complaints and set guidelines for courts to follow in this regard.

Justice Dattu suggested the following steps: a) Complaints against members of the subordinate judiciary in the state should not be entertained and no action should be taken thereon, unless it is accompanied by a duly sworn affidavit and veritable material to substantiate the allegations made therein. b) If action on such complaints meeting the above requirement is deemed necessary, authenticity of the complaint should be duly ascertained and further steps taken only after satisfaction of the competent authority designated by the chief justice of the high court. c) If the above requirements are not complied with, the complaint should be filed or lodged without taking any steps thereon.

Justice Dattu also instructed Justice Waghela to circulate the guidelines among his colleagues in the high court as well as subordinate courts for wider publicity. IL

.

SUPREME COURT

Green signal to red he Supreme Court has allowed police vehicles, ambulances and escort vehicles to use red beacons in Delhi, changing its December 2013 order to use only blue or multi-colored lights, instead of red.

The court responded to a PIL by Delhi Police that stated that red was the most effective color—even in low visibility conditions—for emergency service vehicles as it generated quick response from the public. The PIL also cited the Rayleigh Theory to corroborate its argument. The theory says that red color has the maximum scattering of incident light. Moreover, red is always used as a danger sign and countries like US, Australia and Canada use the color for police vehicles, it stated.

T

Illustrations: UdayShankar

Act fast on Tejpal arun Tejpal, Tehelka’s founding editor, accused in the sexual assault case in Goa last year, will be given all concerned documents related to his case, including unedited CCTV footage and call records, within three weeks, so that further trial can begin.

While asking the Goa court to furnish the documents to Tejpal, the court expressed its unhappiness that there had been no progress in the trial since it granted bail to Tejpal seven months back. It wanted that the hearing should begin promptly after three weeks.

The counsel for Tejpal stated that his client was not responsible for the delay, as he had sought no adjournments.

T

Khan can’t go to Britain

In victims’ interests

ollywood star Salman Khan’s chances of going to Britain for shooting commitments seem remote, as the apex court did not uphold the Rajasthan High Court verdict staying the actor’s conviction in the 1998 black buck hunting case. The reprieve from the high court had come after the trial court had found him guilty, awarding him a five-year jail term.

The apex court asked the high court to take a fresh look into the case. It, however, ruled that Khan could approach the high court again for having his conviction stayed so that he could travel abroad. Under British immigration rules, anyone sentenced to more than five years’ imprisonment can't get a visa for that country. Khan was convicted in 2007.

ven if an accused is acquitted, the courts can’t ignore the sufferings and the loss suffered by victims, observed the apex court. They must make sure that the victims are adequately compensated, it ruled.

Hearing a PIL against a Rajasthan High Court judgment, the SC said that rehabilitating victims was as important as punishing the accused. The high court in its verdict, while exonerating the accused in a 1980 criminal case arising out of land dispute, did not pay any attention towards compensating the victim.

Stating that it may not be wise to send the accused to jail after 35 years, the court observed it would be befitting that the victim gets proper compensation either from the accused or the state.

B

12 February 15, 2015

E

Rights of prisoners

SC’s gift to infants

killed, semi-skilled and unskilled prisoners are still not being paid fixed wages, and this amounts to violation of their constitutional rights, a PIL stated in the apex court.

While informing that the cost incurred on facilities provided to prisoners were recovered from wages they earned while working in jails, the PIL filed by an NGO, pointed out that deductions were unjustified and unreasonable. Highlighting that prisoners had families to support, the PIL said there was no proper directions from states despite clear-cut rulings from the apex court. It wanted that the wages paid to such prisoners should be equivalent to minimum wages as stipulated by law, and deductions done thereafter.

The court asked the union home ministry, several states and union territories to respond to the PIL.

he Supreme Court has come to the aid of women lawyers by deciding to open a crèche and day care facility within the court premises. Infants will occupy the crèche as their mothers fight or defend cases.

The unprecedented initiative is a major signal for the welfare of women lawyers by the apex court, which has advocated women’s rights all along. According to reports, three rooms in the court will be vacated and converted into a crèche.

A fund of `one crore has been earmarked annually for the crèche and its upkeep.

S

T

Deadlines are sacrosanct efusing to grant further extension to complete Eastern and Western Peripheral Expressways, a green bench of the apex court took National Highways Authority of India (NHAI) and Haryana State Industrial and Infrastructure Development Corporation Ltd (HSIIDC) to task for doing nothing on the project for the last 10 years. The court had set 2016 as the deadline for Eastern Expressway and 2018 for Western

R

Expressway. It had given orders in 2005 to ensure that vehicles which do not have Delhi as the destination, need not enter the capital. The project was expected to ease pollution levels and ensure that Delhi roads were not clogged due to unwanted traffic.

A three-judge bench threatened NHAI and HSIIDC with contempt proceedings in case they failed to meet the deadline. The matter will be taken up in March.

Bypassing rules

Keeping a tab on Ganga Mission

he Kerala government can’t reserve seats for doctors working in hospitals and other departments for the post-graduate medical courses in the state, the apex court ruled. A two-judge bench said it violated the rules set by the Medical Council of India.

While striking down the state government’s decision, the court felt that merit was the sole criterion for admission to such courses, and observed that the state government had no right to make a law that set aside a percentage of seats for doctors, who could get into courses without writing an entrance test and merely on the basis of seniority.

issatisfied with the Modi government's blueprint to clean the Ganges, the apex court asked the center if it was interested in accomplishing the mission by 2019 or was dragging the issue till the next term.

Although the center informed the court that there was progress on the mission, the apex court observed with an air of dejection that numerous programs had no

T

D

impact whatsoever.

The court asked the government to state afresh within six weeks what it had done to implement the stage-wise plan in five states through which the river passes. It also wanted the center to submit details on the status of the sewage treatment plants which were to be set up so that untreated effluents do not flow into the river.

INDIA LEGAL February 15, 2015

13

COURTS

Ordinance of contention nce an election process is on, nothing can be done to stop or alter it, the Rajasthan High Court observed.

The court was responding to petitioners seeking quashing of the state government’s ordinance that had set minimum educational qualifications to become eligible for fighting panchayat polls. However, it agreed that the law was totally uncalled for.

The ordinance prevents a vast section of people, especially women, from contesting polls as the state has a very low literacy rate and avenues for formal education are extremely limited. The court felt that the ordinance violates the right to equality enshrined in the constitution. It also pointed out that the state government introduced law without finding out whether there were enough people to fight panchayat elections after the ordinance.

O

Illustrations: Aruna

Agreement under question angster Abu Salem’s counsel recently knocked the door of Madhya Pradesh High Court, alleging that the center and CBI were breaching the extradition treaty signed with Portugal for Salem’s trial. He contended that Salem was being booked in a 10th case when the treaty allowed for trial in only nine cases, and therefore, wanted it to be trashed. The court issued notices to the center and CBI, asking whether the treaty was being violated and slotted the next hearing for January 28. The main accused in the 1993 Mumbai blasts, Salem was extradited to India in November 2005.

G

Conjugal life in jails risoners who are married can be allowed to stay together, have sex and procreate in jail premises, the Punjab and Haryana High Court ruled, saying it was their fundamental right to life and personal liberty under the constitution. Although it did not grant this request from a couple serving sentence in the central jail in Patiala because of the gravity of their crime, it made the historic observation in public interest.

The high court made it amply clear such a right must be regulated by law and it was up to the states whether to uphold such rights or not. It suggested the formation of a jail reforms committee to look into the issue comprehensively.

P

14 February 15, 2015

Selective endeavors he center and Delhi police were quick to install 15,000 close circuit TVs (CCTVs) across Delhi for ensuring the security of US President Barack Obama but take months and even years when it comes to doing the same for Indians, observed the Delhi High Court.

While lambasting the center and Delhi Police, the court referred to numerous orders in this regard, which were either not being followed or kept in abeyance. The issue came up after it was informed about the development.

T

Divorce denied on cruelty charge he Bombay High Court refused to grant divorce to a man who wanted dissolution of marriage on grounds of cruelty.

The Wadala resident seeking divorce alleged that his wife was a regular pub visitor, did not care enough for their child and fought with him during their honeymoon.

These were enough grounds for divorce because of mental cruelty, he pleaded. The couple had got married in 1994 and was staying separately since 1998.

The court ruled that although the couple was not living together for the past 16 years, there was nothing to prove mental cruelty. It pointed out that the couple was in the habit of going to discos and pubs even at the time of their courtship.

Moreover, the husband had stated in court that he did not tell anyone about their fights during their honeymoon.

T

The husband had earlier too pleaded for divorce on grounds of cruelty, but this too was dismissed by a family court in 2012.

Green line for Greenpeace triking down the home ministry’s contention that NGO Greenpeace India can’t be allowed to get funds from its parent entity Greenpeace International, the Delhi High Court cleared a tranche of `1.87 crore for Greenpeace India. Concluding that the center’s action was arbitrary, the court ruled that the NGO was being singled out as “anti-national” just because it didn’t tow the government line. It further pointed out that there was no material evidence to substantiate government’s action despite the center's enquiry against both the entities.

S

Writer accuses PK fter Delhi High court turned down an earlier petition for a ban on Aamir Khan’s blockbuster PK on the ground that it hurt religious sentiments of the Hindus, writer Kapil Isapuri alleged in the high court that the film lifted characters, expression of ideas and sequences from his novel Farishta. He also demanded `1 crore for the “wrong” done. The high court asked producers and directors of the film, production companies and scriptwriter Abhijat Joshi to respond to the allegation on April 16.

A

All mothers are equal omen, who are not biological mothers, are also entitled to maternity benefits, the Kerala High Court ruled, saying there was no room for discrimination. It was hearing a petition of a woman from Kerala Livestock Development Board whose leave for tending to the newborn was struck down by her employer on the ground that the baby was born out of surrogacy. The court, however, made an exception that women opting for surrogate babies can’t claim leave given for restoring the health of the mother.

W

INDIA LEGAL February 15, 2015

15

LEAD/ diplomacy/indo-us n-deal

SIGNED, SEALED, DELIVERED! contentious issues of the nuclear deal signed in 2008 have finally been resolved. it waits to be seen what the fine print of the liability law is before a thumbs up sign can be given

By Seema Guha 16 February 15, 2015

T

he torturous process of operationalizing the complicated India-US nuclear deal is now complete. Prime Minister Narendra Modi and US President Barack Obama have finally broken the logjam, which had prevented US nuclear corporations from taking advantage of New Delhi’s invitation to build reactors in India.

The nuclear deal, as Modi said at the joint news conference, is the centerpiece of a transformed relationship between the world’s largest and oldest democracies.

Yet, the process has been an arduous one, leading to highs and lows ever since July 2005, when an agreement was signed in principle by former Congress Prime Minister Manmohan Singh and former Republican President George W Bush. In October 2008, Bush signed the “123” enabling legislation with bi-partisan support in the US Congress.

This was a major step forward, as the deal was nearly torpedoed by those who believed India should remain a nuclear pariah for its refusal to sign the Nuclear Non-Proliferation Treaty and the nuclear tests it conducted in 1998.

getting through the landmark civil nuclear agreement, the situation on the ground did not change.

India has much to be grateful to George Bush. The nuclear deal accompanying the NSG waiver opened the floodgates for not just nuclear co-operation with the rest of the world, but more important, for high-tech, non-nuclear items and cutting edge technology. “It is a feeling of liberation, getting out of the stranglehold of the trade sanctions, which really stymied our progress for several decades,” Arundhati Ghosh, former diplomat, who was part of the Comprehensive Test Ban Treaty (CTBT) negotiations in Geneva, explained at that time. Perhaps most people did not understand the crippling effect of the

STAMP OF FRIENDSHIP (Facing page) Prime Minister Narendra Modi with US President Barack Obama at the Hyderabad House in New Delhi on January 25 (Below) Growing rapport between the two leaders

DEAL DONE In August 2008, the International Atomic Energy Agency (IAEA) approved the safeguards agreement and in September 2008, the Nuclear Suppliers Group (NSG) approved it, but not without the US browbeating member states into compliance. Despite reservations from countries like China, the NSG finally gave in to US pressure. And in October 2008, Pranab Mukherjee, the then foreign minister, signed the civil nuclear agreement with US secretary of state, Condoleezza Rice.

While George Bush did his bit to get India out of its nuclear isolation, Manmohan Singh too risked losing his coalition partners by insisting on the civil nuclear agreement with the US. The Left Front, which had lent outside support to the UPA government, withdrew support. Despite the euphoria over INDIA LEGAL February 15, 2015

17

LEAD/ diplomacy/indo-us n-deal

“The deal was wrapped up in 2008. What we have today is an approach to resolving the issues arising out of the Liability Law.’’ —Lalit Mansingh, former foreign secretary

THE PRECURSORS (Right) US President George W Bush and Prime Minister Manmohan Singh had worked hard to ensure the civil nuclear agreement worked (Below) The agreement was signed by then external affairs minister Pranab Mukherjee and US Secretary of State Condoleezza Rice in 2008

denial regime the world had imposed on India. It was a denial of everything which could have a potential for dual use, whether in medicine, engineering, information technology or the works.

The US, which helped India overcome the international sanctions which had crippled its nuclear power potential, wanted its private companies to profit from an agreement which it had made possible for India. But this was not to be. Opposition parties, supported vociferously by BJP leaders Sushma Swaraj in the Lok Sabha and Arun Jaitley in the Rajya Sabha, brought in the Civil Liability for Nuclear Damages Bill in 2010. This allows the operator to sue the supplier in case of an accident, inviting protests from US companies. The Congress-led UPA could not withstand the onslaught of a joint opposition and passed the bill, which led to US companies refusing to do business with India.

Since then, Indo-US ties have been in limbo, as the US felt let down that its nuclear power houses were not able to get a large piece of the nuclear pie on which India had promised to spend billions of dollars. Instead, old friends Russia and France, despite problems of their own with the liability bill, were inking deals with New Delhi.

THORNY ISSUES But on January 24, Modi and Obama salvaged the situation by working around the two thorny issues. In fact, Indian and American officials established a contact group in 2014 to look at these problems during Modi’s first trip to Washington.

Obama finally used his executive powers to ensure that instead of American intrusive tracking of every bit of fissile material supplied by it, the IAEA would monitor and track the material used by India in its entirety. New Delhi is satisfied that this will not entail intrusive and cumbersome monitoring.

Officials also worked round the dealbreaking Liability Law. While the law passed in parliament remains intact, the government will set up an insurance pool for the first few years to help create the fund required in case of an accident, where the Indian law makes the suppliers also liable. Making suppliers

18 February 15, 2015

also pay is not part of international practice and global insurance companies refuse to provide this type of insurance to any reactor supplier.

The government, which contributes to this fund, will also earn a premium on its investment. After all, nuclear accidents do not happen that frequently. Operators anyway pay around one million dollars per year for every project they take on. This is in conformity with international best practices and will make it easier for other countries to build nuclear power plants in India. This is the way out of the logjam that the two political leaders have been able to resolve. But all this is in principle and remains to be worked out. The devil is in the details.

“The deal was wrapped up in 2008. What we have today is an approach to resolving the issues arising out of the Liability Law,’’ explains former foreign secretary Lalit Mansingh. He says that while representatives of nuclear power corporations were part of the contact group negotiations which met since 2014, in the last meeting in London to resolve these issues, the companies were not included. So they have to look at the fine print and give the thumbs up.

INSURANCE POOL The problem of nuclear accidents has more or less been resolved with the `1,500 crore or so investment the government will make to the insurance pool. Mansingh believes insurance companies will have no problems with that.

The other problem is that the Liability Law allows any Indian citizen to go to court and sue the nuclear vendors for damages arising out of real or perceived injury from nuclear plants. India has promised to again work round these issues. But the insurance and reactor corporations have to be convinced they do not get into huge problems of litigation.

Considering that there is political backing at the highest level to make the civil nuclear

The first steps to transform Indo-US ties began after India’s nuclear tests of 1998 when Jaswant Singh and Strobe Talbott set the ball rolling. deal operational, there is optimism that American multinationals will begin to explore the option offered by India. After all, there are billions of dollars of business that the reactor companies will make as New Delhi is keen to include clean nuclear power as part of its energy mix for the future.

As the Congress and the BJP wrestle to take credit for the deal, the plain truth is that the first steps to transform Indo-US ties began after India’s nuclear tests of 1998. The then foreign minister Jaswant Singh and US deputy secretary of state Strobe Talbott set the ball rolling, but it was left to the UPA government to really push for the deal.

Ironically, the BJP in opposition joined hands with the Left to bring in the Liability Act, which, it knew very well, was a dealbreaker. Perhaps the party never believed it would come to power so soon. Luckily for Modi, who was chief minister of Gujarat then, he was not part of the nuclear stand-off in parliament. IL INDIA LEGAL February 15, 2015

19

BUSINESS/ nokia india

MAKE IT TOUGHER POLICY

20 February 15, 2015

prime minister modi has been urging foreign companies to set up manufacturing bases in india. but nokia india’s exit shows that this is easier said than done

By Vishwas Kumar

UNI

P

rime minister Narendra Modi has made the concept of “Make in India” the cornerstone of his government’s policy. It is focused on luring foreign investors to set up manufacturing units in India. Will it succeed? If past experiences are an indicator, the answer is no. Till bottlenecks like complicated taxation policy, land acquisition and labor policy are removed, this concept will remain only on paper.

The Modi government could draw valuable lessons from the failure of Nokia India, one of the biggest foreign investments. After operating a highly successful manufacturing unit in India from 2006-2012, Nokia shut it down following several tax-related disputes and shifted it to Vietnam, which provided it better facilities.

The Nokia India story started in December 2004, with then Tamil Nadu chief minister J Jayalalitha wooing the Finlandbased company to set up shop in the newly created SEZ (Special Economic Zone) at Sriperumbudur. It signed a memorandum of understanding with the government on April 6, 2005, and started production in 2006.

SUCCESS STORY Between 2005 to 2012, the company’s total turnover was `1,51,000 crore and it provided employment to around 30,000 people. It was

one of the largest foreign exchange earners for the country in the technology sector, exporting phones worth more than $2 billion a year.

Initially, the plan was to make three to four million hand-sets a month for export to neighboring countries. But the Nokia India’s factory exceeded expectations and produced 15 million phones a month, exporting them to over 80 countries.

Impressed with its success, Congress president and UPA chairperson Sonia Gandhi visited the factory in 2010 along with then finance minister P Chidambaram. The visit was meant to highlight the UPA government’s investment policy of Made in India, of which Nokia was the biggest success story. For Tamil Nadu, the company’s stupendous success was a matter of great pride. After all, Jayalilitha had joined hands with her bitter political rival, DMK leader and then telecom minister Dayanidhi Maran to walk the extra length to lure Nokia to invest in the state.

However, from 2012, the business environment started turning against Nokia

TAXING ENVIRONMENT (Facing page) Prime Minister Narendra Modi with his cabinet colleagues at the National Workshop on Make in India in New Delhi in December 2014 (Above and next page) The Nokia India unit, which closed down following taxation mess

The first salvo against Nokia India came in January 2013 when the IT department slapped a tax notice of `15,258 crore, along with interest and penalties....

INDIA LEGAL February 15, 2015

21

BUSINESS/ nokia india

“We were granted several export awards over those years to recognize our contribution to Tamil Nadu’s economy by way of exports....”

—James Etheridge, Nokia’s corporate communications head India. It coincided with Jayalilitha becoming CM in May 2011 (Karunanidhi was the chief minister between 2006 and 2011). The UPA government at the center was facing its worst political crisis and economic challenges.

DOWNSLIDE BEGINS The first salvo was fired by the Income Tax Department, coincidentally, when Chidambaram was finance minister. In January 2013, it raided the Nokia factory and slapped a tax notice of a whopping `15,258 crore, along with interest and penalties. It was related to Nokia’s import of software from its head office in Finland.

Nokia’s level of manufacturing was huge.

Each mobile handset has more than 400 parts and the average production capacity of each manufacturing unit is around 20 million units. This involves eight billion components

22 February 15, 2015

per annum. Also, whenever MNCs set up subsidiary companies in Third World countries, they keep design patents in First World headquarters, be it the US, the UK, etc.

In the case of Nokia, all design and software patents were held in Finland. All software components were obtained from the main company at a cost. It is this “cost”, which is at the center of the dispute. Nokia says the “cost” comes under the category of “purchased transactions”, not “royalty payments”, as claimed by the IT department. Thus, payment was made to the “parent” company without paying tax in India. The reason is that in a purchase transaction concluded outside India, there is no tax liability in India.

Then, in February 2014, the Tamil Nadu Sales Tax Department accused Nokia of not having exported any of the mobile phones it manufactured at the plant between 2009 and 2011. It maintained they were sold locally and were thus subject to sales tax of `2,400 crore, which Nokia had not paid.

Nokia’s corporate communications head, James Etheridge, has released a statement saying that “this claim was surprising since we have customs documentation showing we exported more than 400 million phones in that period. We were also granted several export awards over those years to recognize our contribution to Tamil Nadu’s economy by way of exports. Unfortunately, local authorities have been reluctant to see this documentation and give Nokia a hearing so we can present this information.” The matter is now entangled in court.

The question is, why did the IT department and Tamil Nadu wake up after five-six years to detect non-compliance of laws by Nokia India? The accumulative tax demands with arrears and interests are resisted by foreign investors, who say it is the result of nontransparent tax laws.

Rajeev Suri, CEO, Nokia Corp, in a recent interview to Hindu Businessline said: “We are optimistic about India’s future under the new government. I personally see great potential in the ‘Digital India’ views and ideas… Of course, to really tap the potential of Digital India and the recent ‘Make in India’ call by the Prime Minister, the new government needs to move fast to address regulatory and

other issues that inhibit investment and job creation. Some of these issues are the creation of the previous government, but the new government has the opportunity to swiftly make things right, to the benefit of all,” he said. “…Tax policy that does not include retroactive changes and that treats software sales in a way consistent with international norms would also be a very positive step,” he added.

UNFAVORABLE CONDITIONS A KPMG- CII report released in May last year on “Ease of Doing Business in India” highlighted that the country’s position in the “Doing Business 2014” annual report of the World Bank was less than favorable. The latest rankings place India 134th among Amitabh Kant, secretary, Rajeev Suri of Nokia Corp says 185 countries, lower than BRICS industrial policy, says it’s some of the regulatory issues (Brazil, Russia, India, China, and South Africa) counterparts. imperative to bring about that inhibit investment are the The report argued for urgency in reforms in labor, skill creation of the previous improving the business environment development, land government and the new and arresting the decline in performacquisition and taxation. regime must address these. ance. It put forth the corporate world’s grouse that the Indian direct the government urgently needs to carry tax regime is not conducive to fosterreforms in labor, skills training, land acquisiing growth and that reduction in corporate tions and taxation. The government, he said, taxes could provide an impetus to growth. In needs to bring in greater consistency and prethe “Doing Business 2014” report, India fared dictability of tax policies. poorly on total tax rate, time to comply and According to Charan Reddy, a US-based number of payments. The country ranked 158 businessman and BJP member: “Make in in terms of overall ease in tax payment.

India is a well-thought-out concept to lure Ninety percent respondents believed that tax foreign investment so that it will bring the authorities were not proactive in promoting brand name to India and reduce unemployinvestments and 60 percent felt that neutralment.” But why should MNCs come to India ization of the tax decision by the Supreme when there are other countries who adapt Court through a retrospective amendment easily to the needs of MNCs? could have a damaging effect on investment Reddy points out that any MNC’s sole sentiments. Sixty-five percent respondents motive is profit with less headache. When at agreed that companies were willing to enter least 55 approvals are needed to start a manan advance pricing agreement. ufacturing unit here, how is that possible, he The report recommended taxation in asks. The government needs to streamline India needs structural, operational and approval methods so that the babu culture, administrative reforms. political patronage, local and state regulaAmitabh Kant, secretary, industrial policy tions don’t hinder business. A centralized poland promotion, who was in Washington to icy and speedy approvals would also help. attend the Indian Conference on “Make in Can Modi replicate his Gujarat model India” a week before US President Barack across India? IL Obama came to India, reportedly argued that INDIA LEGAL February 15, 2015

23

ACTS & BILLS/ ordinance/land acquisition

A House for you may trust the government, but the ordinance on land acquisition could divest you of your hard-earned property. since independence, a whopping 60 million people have been displaced in such a manner

By Sabiha Farhat

24 February 15, 2015

Mr Vishwas

Anil Shakya

W

HILE we, the janta were busy quibbling over “ramzaade and haramzaade”, “ghar wapsi”, anti-conversion law, good governance day and PK, the winter session of parliament got over. And no one noticed that the ordinance to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013, had been cleared on December 29, 2014.

Few even know the nitty-gritty of this ordinance. If you are told to sell the house that you

INDIA LEGAL February 15, 2015

25

ACTS & BILLS/ ordinance/land acquisition

Once the government notifies a property, the owners will have to sell it.

The compensation offered by the government is twice the market rate. But considering that the government decides this rate too, the owner ends up as the loser.

ROW OVER LAND (Clockwise from right) The country has seen several protests against land acquisitions in recent years; in Niyamgiri Hills, Odisha, it was the question of tribals' rights; Nandigram in West Bengal erupted after the CPM government tried to acquire land for an SEZ in 2007; Bhatta Parsaul village was also embroiled in land acquisition row

so labouredly built after years of saving, will you willingly move out for “public good”?

Most probably not.

UNFAIR ORDINANCE But people will soon realize that their consent no more matters, as once the government notifies their property, they will have to sell it. Worse, no one is liable to give you an answer because it is the government that is acquiring your house and selling it to someone who wants to set up a factory or a hospital or a road. Pushed into a corner, you will be right in assuming that at least you need to be adequately compensated. But that too might be a pipe-dream as the government has already decided that too—it is going to pay you twice the market rate.

That sounds good, but wait. It is the government itself which decides the current

26 February 15, 2015

before a year could pass, the new act has been divested of provisions that empowered the common man.

Protests against the inequitable land acquisition act have been carrying on for long. In Bhatta Parsaul, the UP government acquired about 6,000 acres from farmers under the pretext of “planned industrial development” at a rate of `350-880 per square meter. Later, this land was handed over to the Jaypee Group to build a luxury township and sports facilities around the Yamuna Expressway. The Jaypee Group bought this land at `1,220 per square meter from the government and sold it upwards of `18,000 per square meter to residential buyers.

MASSIVE DISPLACEMENT Bhatta Parsaul was just the tip of the iceberg. Jagatsinghpur, Jaitapur, Raigarh, Bastar, Singrur, Nandigram, Bellary, Kalpavalli, Jhamar Kotra, Polavaram,

NDA may chuck ordinance path AT THE time of going to press, it seemed that the Modi government had dropped the idea to push for reforms in land acquisition through the ordinance route and instead wanted to introduce the changes in the form of a bill in parliament during the coming budget session.

President Pranab Mukherjee's objection to the hastening of the land ordinance was said to have brought about the change of heart. The NDA government has already gone for 10 ordinances in its seven months in office.

market rate by looking up “official transaction” records of houses that have been sold recently. But then, records never mention the actual market rate as most property transactions are held in black or are cash transactions. So while you end up the loser, the entrepreneur who got your land cheap will soon be laughing all the way to the bank. This is what has been actually happening to farmers for years and this is what the RFCTLARR ordinance seeks to do.

In one stroke, the government is proposing to take us back to the Land Acquisition Act of 1894 laid down by the British. This archaic law continued for a good 120 years.

However, protests across the country against land grabbing by various governments forced the UPA government to repeal the 1894 Act. It went on to propose, draft, discuss, debate and redraft a new bill in 2013. But even INDIA LEGAL February 15, 2015

27

ACTS & BILLS/ ordinance/land acquisition

More than 250 bloody conflicts took place over land acquisition between 2013 and 2014 in 165 districts of India, according to Rights and Resources Initiative, along with Society for Promotion of Wasteland Development.

JUSTICE FOR ALL (Top) RFCTLARR Act 2013 by the UPA reflected concerns for those whose land was sought to be acquired (Above) An agitation for higher compensation for land acquired for the Yamuna Expressway project

28 February 15, 2015

Kalinganagar, Niyamgiri…the list of forcible land acquisition and people’s struggles is long. An estimated 60 million people have been displaced between 1947 and 2000 due to land acquisitions.

More than 250 bloody conflicts have taken place over this issue between 2013 and 2014 in 165 of India’s 664 districts, according to a mapping exercise carried out

by the Washington-based Rights and Resources Initiative, along with Delhi-based Society for Promotion of Wasteland Development.

A look at their case studies reveals that large areas of land have been set aside for mining and power projects and more will be made available in future (see Table). Future sectoral projections are even more sobering and show that an estimated 114,475,59 square kilometres of land is required over the next 10 years.

But who gets this land? A large part of it gets transferred to private industry as the share of government in development and industrialization projects is fast decreasing. For instance in the power sector, private companies are expected to produce 60 percent of the total power capacity in the 12th Five Year Plan from 2012 to 2017. Similarly, in the case of coal blocks, 74 out of 131 allocations went to private firms between 2006 and 2011. This is nothing but a net transfer of land and minerals to corporate firms. For equitable economic growth, shouldn’t people who own the land

or those whose livelihoods depend on it have a share in the profits? Should industrialization happen at the cost of equitable growth?

An alternative was shown by residents of Tamnar in Raigarh, who had launched a “community mining” campaign. They were willing to pay the government 10 times the royalty that mining companies paid.

It could be an alternative mechanism for growth, but our government is not listening and instead, is forcing them to sell their land.

Sectoral Projections for Land Takeover Estimation of Land Requirement for Emergent Sectors (in hectares) # Sectors Agri-Fuel 1 (Estimation for 2026) Infrastructure

2 (Estimation for 2026)

Extractive

3 Activities vi

(Estimation for 2026)

Sub-sector Jatropha Bio-Power (Agro Residue & Okabtatuibs) Roads Dams Special Economic Zones Coal Iron Bauxite Limestone Other Major & Minor Minerals

Current Area (2011)

Estimated Requirement

Additional Land Required

500,000

4,400,000

3,900,000

273,700

2,000,000

1,726,300

773,700 1,816,355 2,907,000 86,107 4,809,462 147,000 88,065 30,059 144,979 244,301 654,404 180,000 76 180,076 6,511,266

6,400,000 3,117,000 3,908,171 150,000 7,175,171 535,445 320,775 109,489 528,083 889,862 2,383,654 540,000 100,000 640,000 17,958,825

5,626,300 1,300,645 1,001,171 63,893 2,365,709 388,445 232,710 79,430 383,104 645,561 1,729,250 360,000 99,924 459,924 11,447,559

BALANCED ACT Non-Conventional Wind 4 Energy vii (Estimation Solar Thus, it is crucial to have laws for 2032) that are participatory, democratic and in favor of the ordiTotal nary citizen. To uphold a bal•RRI & SPWD report based on data collection from official records. ance between industrialists tional institutions too. The ordinance and landowners, the RFCTLARR Act includ“empowers appropriate government to take ed some provisions. It made SIA (social steps for exemption from SIA and special impact assessment)—consent of 70 percent provisions for safeguarding food security and of the affected people in case of public-priwith consent as well”. It has also done away vate partnerships and 80 percent in case of with the provision restricting government private projects—mandatory for all “public from acquiring irrigated, multi-crop land. purpose” projects. It also restricted the govIf the land-acquirer fails to take possesernment from acquiring arable land (except sion of the land or pay compensation within under exceptional circumstances and linear five years, it exempts “…any period during projects) while allowing private developers to which proceedings were held up on account purchase it directly from landowners. In its of any stay or injunction”, thus substantially definition of “affected persons”, it included reducing the negotiating power of landlandholders as well as those whose livelilosers. Embedded in the fine print of the hoods depended on that land. Another ordinance are many other factors that tilt the important clause was that notified land be balance in favor of the land-acquirer. returned to land owners if the companies The ordinance also indirectly aids decould not take physical possession of land or faulting civil servants as they can only be had not paid compensation for five years. prosecuted after sanction from the appropriHowever, the ordinance on RFCTLARR ate government. has added new provisions which will affect Sadly, the ordinance defeats the purpose many. It adds “public purpose” as “activities of participative democracy. A “pro-developsuch as defense, rural infrastructure, electriment” government should not forget that fication, affordable housing and housing for development is the right of all citizens. The poor, industrial corridor, infrastructure and laws it passes are for its citizens in accorsocial infrastructure projects including projdance with the constitution that envisages ects under public private partnership….” It justice for all. IL includes private hospitals and private educa-

INDIA LEGAL February 15, 2015

29

SPORTS/ cricket/supreme court judgment

Srinivasan’s the much-awaited order on conflict of interest related to exiled bcci president is path-breaking for the lessons of accountability drilled into the world’s richest cricket board. nonetheless, the game’s most powerful person has got “another life” and may stay put to bat on

By Shantanu Guha Ray

O

N January 22, 2015, the Supreme Court pronounced a judgment that many called landmark, ostensibly because it probed—for the first time—ills of the Board of Control for Cricket in India (BCCI) and made it clearly accountable to the apex court, and millions of fans of a game considered religion.

Television channels played breaking news, called it “Endgame Srinivasan”, and sought reactions from veteran administrators, advocacy professionals and cricket writers. All agreed

30 February 15, 2015

9 Lives that it was high time BCCI, the world’s richest cricket body, was accountable to the government and fans.

“Can there be a death of this cosy club that exists in Indian cricket? It must end,” remarked Arnab Goswami, arguably India’s most viewed anchor on Times Now. He was supported, for a change, by one and all. The following day, other channels and newspapers played the same tune, some even advocating “shutters down” for the Indian Premier League (IPL). Here, the costs of an average team hover between `1,500 crore and ` 3,000 crore, the last tag reserved for Chennai Super Kings (CSK), a team owned by none other than N Srinivasan, the exiled board president.

SPRING CLEANING “This is the first step and now spring cleaning must start. But the fact that the Supreme Court had to intervene to clean cricket is sad news for me. It is a sad day,” remarked Bishen Singh Bedi, the veteran left-arm spinner who once led India.

The court asked the board to hold elections within six weeks and made it clear that Srinivasan should not contest if he wished

GAMEPLAN FOR SURVIVAL (Facing page) N Srinivasan is said to have made up his mind to keep himself out of Chennai Super Kings and fight BCCI elections; (Below) MS Dhoni captaining the CSK team

Days before the Supreme Court judgment, a meeting between Srinivasan and a top cabinet minister was seen as crucial for BCCI’s future moves.

BCCI

INDIA LEGAL February 15, 2015

31

SPORTS/ cricket/supreme court judgment

“This is the first step and now spring cleaning must start. But the fact that the Supreme Court had to intervene to clean cricket is sad news. It is a sad day.”

—Bishen Singh Bedi, former skipper of India

IN DEEP TROUBLE Gurunath Meiyappan (below) was found guilty of betting by the court and now awaits punishment

32 February 15, 2015

to hold his shares in CSK, whose skipper Mahendra Singh Dhoni and another player, Suresh Raina, found mention in the first probe report filed by former Punjab Chief Jus-tice Mukul Mudgal.

Srinivasan, inundated with calls from pesky reporters, followers and critics, merely said: “I will not comment on the judgment.” There were unconfirmed reports that he was contemplating heading to Bangalore—possibly to a temple—and pray, a common practice of the Chennai-based cricket veteran and golfer who started his career in tennis. It is reliably learnt that he was advised to remain silent by his advocacy group that operates out of Delhi and his brother, N Ramachandran, who heads another big sports body, the

Indian Olympic Association.

There were, of course, worries for Gurunath Meiyappan, the son-in-law of Srinivasan and a key official of CSK, Vindoo Dara Singh, a small-time Bollywood actor and son of the late Dara Singh, who had earned fame in wrestling and movies. Both were to be charged for betting in IPL, considered illegal as per Indian laws.

There were worries for Raj Kundra, the flashy London-based businessman who owned a large portion of Rajasthan Royals and was also found betting with Meiyappan in IPL matches with some “solid inside information”. Sundar Raman, the former IPL CEO was also to be probed for his connection with bookies. And there were cricketers and bookies arrested as part of the sweep that started in 2013.

January 22, in some ways, was a culmination of an 18-month-long courtroom duel, compared by many to the much-publicized tussle between the Ambani brothers over prices of gas extracted from the Krishna Godavari basin.

DEEP ROT But has all the dirt in cricket’s underbelly been cleared? The answer, claim many, is in the negative because cricket investigation in Asia has always been half-baked with examples of repeated interventions from politicians holding important positions in the boards, both at the state level and in the all-powerful BCCI. Besides, this body has routinely cocked a finger at the sports ministry because it never sought any doles from the government.

But though the board represented the Indian cricket team, carried the Indian tricolor on its sleeves and worked out of India (with cash from both Indian and multinational companies), it forced the apex court to make it accountable.

The Supreme Court even forced BCCI to drop a contentious clause through which its officials could own franchises in the muchmaligned IPL. “We will have to see how the next phase of investigations—powered by a three-member bench of former SC judges—take place and what comes out of that,” remarked Shishir

“Mere paas (Kali) Ma ka ashirwaad tha” Hattangadi, a former Mumbai player in a brief, telephonic conversation.

The court said CSK official Meiyappan and Kundra were found guilty of betting during the 2013 IPL. Judgment on this violation of IPL rules will be out after an independent, three-man high-powered committee appointed by the court conclude its proceedings “as early as possible”, within six months.

The committee will be headed by former Chief Justice RM Lodha, and have former SC judges—Ashok Bhan and RV Raveendran— as members.

Strangely, politicians holding important positions in BCCI say they have no comments to offer on the court judgment.

Former skippers, regular on BCCI assignments as commentators, administrators and trainers, also maintained a stoic silence.

A WAY OUT The Dubai-based ICC, whose officials kept a close watch on the developments for 18 months, indicated Srinivasan’s role as ICC chairman could come under cloud because of the judgment but offered no clear-cut answers because the court had offered Srinivasan a window—take BCCI, drop CSK, else do the reverse.

And therein lies the most important story of Indian cricket and the future of Srinivasan, a man considered the most powerful, not just in Indian cricket, but also across all cricket-playing nations.

“He will have to take a stand,” remarked Mudgal in an exclusive interview. He was pained to see the state of affairs of the game during his detailed investigation into IPL spot-fixing and illegal betting.

Very few in India know that Mudgal, who loved cricket from the core of his heart, was the lawyer who had—in 1989—filed a public interest litigation to save Indian cricketers like Kapil Dev, Dilip Vengsarkar and others from a BCCI ban after they participated in some masala matches organized by NRIs in the United States. The matches were hosted after the players had completed a tour of the West Indies.

Now that the dice is set, the million-dollar question in the minds of Indians is this: What will Srinivasan do? Will he walk out

Aditya Verma knows how to fight. Even as he took on the powerful in Srinivasan, he says he went through hell

T

HE portly Aditya Verma, bête noire of BCCI, looked at the overcast Delhi sky seconds after the Supreme Court pronounced its judgment. Verma, 51, a key official of the unrecognized Cricket Association of Bihar (CAB), was thanking the gods for his victory, knowing fully well that N Srinivasan, the exiled president of BCCI, had an excellent window to bounce back. It did not bother Verma. He was happy that he was able to get to the courts, and made many in the BCCI sit up and take notice of his demands.

Verma said that for almost a month, he had carried a red-colored embroidered scarf that he had got from Dakshineswar Kali Temple, near Kolkata. He even carried it to the court and silently touched it after the verdict. For him, it was Kali, goddess of destruction and mother to millions of Hindus, who helped him win the 18-month-long courtroom battle. “Mere paas (Kali) Ma ka ashirwaad thaa,” said Verma, picking up lines from a sloka recited by Lord Rama after his resounding victory over Ravana. The warrior king said a mother’s blessings always work more than a million gods put together. God-fearing Verma remembered that it was on a Thursday when the apex court asked Srinivasan to step down as BCCI president and again on another Thursday, when the court reinforced its decision.

Verma, originally from Chhapra, a small Bihar town and home to rebel politician Jayaprakash Narayan, said he was no pushover. “We know how to fight, and we fight till the end.” His rival, Srinivasan, had sought blessings from Padmanabha Swamy, the reclining Vishnu in a gold-laden temple in Thiruvananthapuram. Verma called the verdict the first step towards cricket’s spring cleaning. “I have not won hands down, Srinivasan has a window to breathe,” he said. He remembered June 2013 when he contended in the Bombay High Court that BCCI’s two-member internal probe panel investigating the IPL spot-fixing issue was unconstitutional.

Nine months later, based on his appeal, the Supreme Court proposed the ouster of Srinivasan and suspended two IPL teams. “The board tried hard to win me over, my phone rang non-stop. I was told CAB would be recognized overnight, but I must drop all cases. I knew they would drop me the day I drop my cases. No one wins a bargain with the BCCI,” laughs Verma. He remembers how the board even asked an external agency to probe who was providing “insider information” to him while the case was on. “I have gone through hell, even hell is an understatement,” says Verma, adding: “Srinivasan’s craze for power was sad. He did whatever he wanted, and everyone supported him. Even former skippers would not raise any voice of protest.”

Hopefully, now it will change, says Verma. He said he drew his actual strength from his lawyers, among them Harish Salve. The son of former BCCI president, NKP Salve, was pushed to pick the brief by Bihar Congress leader, Subodh Kant Sahai, and Sharad Pawar, former ICC head and union agriculture minister.

—Shantanu Guha Ray

INDIA LEGAL February 15, 2015

33

SPORTS/ cricket/supreme court judgment

MEN IN A FIX (From left) Worries loom over Raj Kundra, Vindoo Dara Singh, Sunder Raman; (facing page) Lalit Modi and Mukul Mudgal stand vindicated

of the BCCI, a board he considered his second home and where he revelled in the power he had, or will he live with CSK, a team right on top of the IPL? Srinivasan is learnt to have told BCCI members that he would sever all ties with CSK and run for BCCI elections.

Seven players could be in trouble Reliable sources told India Legal that as many as seven players have been named in the Mukul Mudgal Committee report on betting and match fixing. And strangely enough, most of the names floating in the media are said to be missing in the report.

34 February 15, 2015

NEVER SAY DIE Srinivasan, it is reliably learnt, had already started planning his moves way back in November 2014, around the time when the case was fought between the BCCI and Cricket Association of Bihar (CAB) headed by Aditya Verma with support from the irresistible, London-based Lalit Modi and former BCCI presidents, Sharad Pawar and Inderjit Singh Bindra.

Consider this one.

Days before the judgment, a crucial meeting between Srinivasan and a top cabinet minister of the ruling NDA was seen a crucial step in the board’s future moves after its slugfest with Verma. “The meeting was crucial and Srinivasan is acting accordingly,”

said a top BCCI official.

It is reliably learnt that Srinivasan has already started transferring India Cement shares from his team CSK. “If CSK is now owned by a new person, a new board, nothing prevents Srinivasan from contesting the BCCI elections,” the official said on conditions of anonymity.

Look at his advantages. The court stated any charges against Srinivasan’s involvement in a cover-up could not be proved. It did say that Srinivasan had “created” a conflict of interest situation in the 2013 IPL case after CSK had entered the picture. The court said: “No rule can permit conflict of interest”. And Srinivasan is rectifying it with renewed zeal.

So the slate, in all probability, will be clean for the Chennai cricket czar.

OUT OF THE WOODS And then, when BCCI elections takes place within six weeks, Srinivasan will have all the support he needs from the East Zone, reigned by former board president Jagmohan Dalmiya. “This is not an end game for Srinivasan. His window is clear. The court

www.lalitmodi.com

Anil Shakya

Damage has been done: Owais Shah Former England batsman Owais Shah who has also played in IPL told India Legal: “My name was taken in the Mudgal report by mistake.

The media decided to tarnish my name by saying I was involved in spot fixing. The court later cleared me of any wrongdoing and cleared my name. But the damage has been done to my name and this has caused a lot of stress to me and my family. It is disappointing to see that the media would say that I am corrupt before getting their facts right. For the record, I am not and I will never get involved in cricket corruption.”

has offered him an option and he will surely take it,” the official said.

In a judgment concerning one aspect of the 2013 IPL corruption case, the two-man bench of Justice TS Thakur and Justice FMI Kalifullah scrapped BCCI’s controversial constitutional amendment allowing board officials to have commercial interests in the IPL and the Champions League T20.

“Srinivasan is making all efforts to keep himself and members of his family away from CSK,” the official said. “The next probe will conclude by July or August, but the BCCI elections will be held in a month-and-a-half, may be earlier. And Srinivasan’s biggest advantage is that he does not have any opposition,” the official added.

The only drawback for Srinivasan,

claimed the official, was the court’s reaction to the board’s style of functioning. In a declaration that could have far-reaching consequences on the board’s conduct, the court said that while the BCCI was a private body, it performed a public function and was, therefore, amenable to judicial law and review.

The court said that the “state”, i.e. the government, had until now not chosen to bring in any law to check BCCI’s “monopoly”. It empowered the independent committee to look into the aspects of the BCCI constitution deemed as “problematic” along with issuing punishment to Gurunath, Kundra, Rajasthan Royals and Chennai Super Kings.

So, it is advantage Srinivasan once again, unless of course, more dirt surfaces in the probe by the SC-appointed committee. IL INDIA LEGAL February 15, 2015

35

POLITICS/ delhi election

CAPITAL CHALLENGE

Photos: UNI

the bjp’s strategy for national and state polls might not succeed in the national capital. neither caste nor anti-incumbency work here

By Mantosh Sharma

A

FTER successive wins in last year’s general and state elections like Maharashtra, Haryana and Jharkhand, the BJP has emerged as a powerful political party in India. These wins are the outcome of successful election campaigns and a very strong leadership, which has maintained a public discourse focussed on growth aspirations.

This, coupled with a fragmented opposition, taking political advantage of regional social engineering and incumbency of local governments, has led to astounding wins.

These could have been replicable strategies to win the assembly election in Delhi scheduled for February 7. However, conditions on the ground are different. The BJP is facing very tough competition from AAP and reality check compels political observers to recall the proverb—everything that glitters is not gold and everything glossy is not glass.

So what has changed in Delhi? Why does the prime minister have to intervene personally to provide campaign momentum and set the

36 February 15, 2015

battle in a two-cornered contest?

Core strengths which led to the success of each party in recent elections are being challenged in Delhi. Let us start with the first strength—a successful political campaign. Lately, the BJP has used the shock-and-awe type of campaigning through social and print media and has bombarded constituencies with national and regional leaders. This is in contrast to the door-to-door campaigning it is known for. But the issue with technology and social-based campaigns is that it can be copied easily without much extra investment. Any political party can tweet articles, blogs and influence comments without burning campaign fortunes.

And AAP has successfully matched this strength with its technical-savvy volunteers and door-to-door campaigning by local leaders. The party has, thereby, become an equally visible political force in the Delhi elections.

Another key factor of any successful win is fragmented opposition. This allows all political parties to maximize winning seats with vote share. Laloo Prasad Yadav exploited this

through his maverick political strategy in three Bihar elections. The BJP used this strategy successfully in the Lok Sabha election in UP, where it got maximum seats through vote shares.

However, this strength is in question in Delhi.

P

ortraying AAP as the main contender was a mistake on the part of the BJP. And the prime minister talking about the AAP leadership in his speeches was also a mistake. AAP became the main opposition and polarized the election into a two-party contest.

This is how people who were the BJP’s core constituency perceived it. AAP was always a contender. However, its public recognition through the BJP leadership has made it a contender in the eyes of middle and upper middle class voters, where the BJP has an advantage.

This is the same section which was unamused

by AAP’s jhadu and dharna politics. This is the same section which is media sensitive. Also, this polarization has given credibility to AAP as a force on whom minority politics will be hinging. Approximately 12-13 percent minority votes will be decisive in this election.

One of the salient and successful strategies of the BJP in recent times was ticket distribution and alliances based on social engineering.

This was meticulously executed in UP through Amit Shah’s leadership. Smaller parties were roped in to fortify social alliances. Apna Dal, for example, was roped in and given two seats to ally with the BJP. Many leaders of the opposition were also roped in by the prime minister to fortify caste-based support.

However, in its public discourse, the BJP has always used development and aspirational politics in its political agenda. This has been a remarkable master stroke vis-à-vis the RJD, BSP and Samajwadi Party. These regional parties have heavily relied on and played the social engineering card.

However, Delhi is a different ball game and its election results will be a topic to study for political and sociological pundits. Delhi’s social fabric is based more on divides like middle vs upper middle class, jhuggijopadi-autowalla class and Poorvi-Punjabi regional groups.

There is little caste-based identification which can give room for social engineering, as happened in the Lok Sabha and other state elections. And the BJP’s winning model so far will

be under test here. It would do well to change its strategy.

Finally, there is the advantage due to incumbency. Delhi did not face incumbency like in other states, even though anti-incumbency was exploited earlier by AAP and the BJP. However, AAP did not rule Delhi long enough to create this political opening for others to cash in. Still, it did create confusion and raise many questions among the upper middle class voters about its ability to govern. Many famed supporters either left AAP or became dormant.

The party has understood this and is trying to change its image from dharna politics to governance. It may be that our prime minister’s aspirational politics has influenced AAP and taught it to tango along with its political base.

On the other side, the BJP has created confusion among people who are in the political middle. Extreme right organizations have virtually stolen the aspirational message and in Delhi, this could hurt the BJP. The advantage it gained over AAP in terms of its governance agenda has been negated.

Kiran Bedi’s induction into the BJP should be looked at through this angle. The BJP needed to close the “lack of leadership” debate in Delhi, influence changes within the local faction-ridden organization, set an agenda to counter AAP and finally, absolve the PM if the BJP gets defeated in Delhi.

Will this strategy work is the million-dollar question. IL

ALLIES TURNED ADVERSARIES Arvind Kejriwal (Above) and Kiran Bedi (facing page) campaigning in Delhi

The writer is a political observer, commentator and member of the Varanasibased Sahajanand Shodh Sansthan INDIA LEGAL February 15, 2015

37

HUMAN RIGHTS/ prison system

A dirty business

jails are often dehumanizing places, where simple and legal rights are trampled upon with impunity. money power opens doors, be it for parole, food or women

By Imran Qureshi from Bengaluru

C

ORRUPTION is a common ill these days. Not surprisingly, prisons too are dens of vice, where those with money power are treated with kid gloves and have all the privileges—food, material comforts and even women.

The Bengaluru Central Prison, in recent weeks, has been in the news for all these. A shocking report in a newspaper alleged that there was sexual exploitation of women prisoners there, based on two letters. Written by some women prisoners, it claimed that jailors made `300 or more for every woman prisoner provided to a male prisoner. The letters were found in a prison box and could only be opened by a designated judicial officer of the rank of a metropolitan magistrate, who forIllustrations: Anthony Lawrence

38 February 15, 2015

warded it to the chief justice of the Karnataka High Court. Following these revelations, four committees visited the prison.

After speaking to many female prisoners, two critical panels—one representing the judiciary and another, the State Human Rights Commission—categorically said there was no confirmation of sexual exploitation and no basis for the letters, according to a senior civil servant on condition of anonymity.

What led to the turnaround?

Were the fears of the women prisoners exaggerated? Or were they in denial mode about the activities inside the prison?

W

hen the panels visited the jail, they were taken by surprise when women prisoners complained about the negative impact of such reportage on their lives. “They apprehend being questioned by their relatives as to what was going on behind the prison walls. They told the panels that their name was being spoilt because of such reportage,’’ said another senior government official.

But the real reason could be that they feared for their lives. A former additional director general of police (prisons) said: “They can’t talk because they are very vulnerable. They have to ultimately live in that place.” But it is a moot question as to how sexual exploitation can take place in a prison where there is hardly any meeting point for men and women prisoners, except during an event in the main premises, and that too in the presence of heavy staff deployment.

Undertrials said on condition of anonymity that eye contact was possible during such functions and messages could be exchanged through jail employees. “Male and female prisoners do try and get parole around the same time, meet and then, return to prison.

This is a consensual relationship. But to say that there is prostitution going on inside is not possible,’’ said an undertrial.

However, prisoners revealed that a parallel economy does run inside most prisons.

One estimate says at least one-third of prisoners have a mobile. And for those who don’t, there’s a quick solution—jail officials are said to provide it at a price.

“There could be instances of sexual gratification,” admits another prisoner. Prisoners and their families often have to pay their way for the simplest of things. Even for meeting visitors, which is legal, a prisoner has to shell out money to the staff. “It costs around `300 to meet them,” admitted this prisoner. Another said: “Even food brought by our relatives needs to be shared with the staff, failing which, we are discriminated against in peculiar ways. Even parole can be denied when the reasons are genuine.’’

In Karnataka jails, the system of parole is slightly different from other jails due to a loophole in the Karnataka Prisons Act. Unlike normal rules regarding granting parole to prisoners, Karnataka’s act does not mention the period after which parole can be granted to a prisoner.

NO PLACE TO REFORM A recent report in newspapers alleged that women were sexually exploited in the Bengaluru Central Prison

INDIA LEGAL February 15, 2015

39

HUMAN RIGHTS/ prison system

“It is dirty to the core...Those who have money are privileged citizens inside the prison. This is the stark and cruel reality and can make one sick and depressed.’’

—A police official, talking about rampant corruption in prisons

charge, here too, you pay and get parole. If you pay more, you will get a parole extension.

If you can afford it, you pay more to avail the 90 days parole. So, for every six months of stay, you can get a three-month break,’’ he said. There are many prisoners who have not bothered to return after parole, claimed the prisoners. Taking note of this, the high court issued a direction to the prisons department.

M

However, media exposure led the state home department to begin the process of amending this Act. “We realised that the department officials had deliberately not pointed out the loophole because this was one more avenue to make money,’’ said a senior government official. For every six months of stay inside prison, a prisoner has the privilege of applying for parole not exceeding 30 days.

This can be extended by another 30 days, but not more than 90 days.

M

oney plays a big role in prisoners getting any privilege. A retired police official, who had handled the prisons department, said: “If you sit, you need to pay. If you stand, you need to pay. That is prison life.’’ A prisoner corroborated: “Quite like a pre-paid mobile which you pay and

40 February 15, 2015

obile phones are another privilege that can be obtained by greasing palms. One estimate says that at least one third of prisoners have a mobile.

And for those who don’t, there’s a quick solution—a section of jail officials can provide it at a price, said prisoners and police officials.

Prison officials facilitate communication by switching off the jammers so that the outside world can be reached. Other privileges include putting members of one gang in the same cell, so that they don’t feel depressed and can issue instructions to those outside to settle old scores or run their businesses.

Another police official admitted that corruption was quite high in prisons. “It is dirty to the core. So, let us not talk about human rights. Those who have money are privileged citizens inside the prison. This is the stark and cruel reality and can make one sick and depressed. It is difficult for any of us to break this prison system.’’

Part of this dreary system is the abysmal food. One estimate says that prisons in Karnataka would need at least `100 crore annually. Perhaps, some of that could be used to increase the quality and quantity of food given to prisoners. Riots have taken place over this issue. In January 1978, a riot broke out in this prison over substandard and inadequate porridge. After a series of investigative reports in a local newspaper, the government accepted the suggestion of Michael B Fernandes, the then Janata Party MLA, to provide suji-based khara bhath and kesari bhath and non-vegetarian food twice a week. It was only recently that the expenditure on food per prisoner was raised from `48 to `75.

While prisons house those who have broken the law, it is important to treat them humanely, lest another riot rears up its ugly head again. IL

NO I L HOLDS BARRED

FIVE IMPORTANT EVENTS NJAC of 2014 that will Still on a 60 bumpy ride 10 change our lives

SECTION 66A License to smother 12 free speech?

L NDIA L EGAL NDIA EGA I OBITUARY na Iyer 33 up the life of ans 36 Justice Krish onage case tore How a false espiand delayed projects by 15 year ISRO scientist

www.indialegalonline.com

lonline.com

www.indialega

January 31, 2015

`100

`100

31, 2014 December

Rape and After

STORIES

STORIES THAT COUNT

NT

THAT COU

ALIGARH MUSLIM UNIVERSITY

CAMPUS RUMPUS

special report on what women want 18

Though laws and in guidelines are ical place, the med fraternity is ut how clueless abo victims to deal with se 12 of sexual abu

Postal Regd.

No. UP/GB

D-197/2014-1

6

14

ALS0

LD 54 43 K MY CHI TERLOO? BRING BAC MATA’S WA SCAM: MA SARADHA

PATENT PREDATORS

turmeric, basmati and Mries? After neem, the West eyes khadi. Can IStiona ROHindNu reac India ward off the threat?

AFF EO-Sg unde N r the assault of Is Modi weakenin

28 ALSO

RNI No. UPENG

/2007/25763

PLUS

20

34

COAST GUARD A senior officer, denied promotion, knocks at judiciary’s doors 28

Don’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 sales@indialegalonline.com

SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS Yes, I would like to subscribe to INDIA LEGAL magazine for the offer indicated below Tick one

Term (Years)

No. of Issues

Cover Price (`)

You pay (`)

You save (`)

% Saving

1 Year

24 Issues

2400/-

1200/-

1200/-

50%

2 Years

48 Issues

4800/-

1920/-

2880/-

60%

Name: ...................................................................................... Age: ............................. Sex: .......................................

Address: ........................................................................................................................................................................ ....................................................................................................................................................................................... .......................................................................................................................................................................................

City: ................................................................. State: ..................................................... Pin: ......................................

Phone Res.: ...................................... Office: ...................................... e-mail: ..............................................................

Enclosed DD/Cheque No.: .............................. Dated: ...................... Drawn: ........................... for `: .........................* Card No.: ............................................................................. Signature: ........................................................................

For outstation cheque please add ` 50/*DD/Cheque to be drawn in favour of EN Communications Pvt. Ltd. To be sent to: EN Communications Pvt. Ltd. A-9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) 201309 Terms & conditions apply. Please provide us 4 weeks to start your subscription

SOCIETY/ spurious liquor

One drink too many recent hooch tragedies have shown that liquor policies of various state governments are not working. worse, laws are too weak to curb this menace

By Shailendra Singh

R

ECENTLY, 32 people died in hooch tragedies in Lucknow and Unnao districts of Uttar Pradesh and 100 underwent treatment.

In November 2014, five died in Bhadohi in a similar tragedy, leading to the suspension of six government officials, while in October 2013, more than 30 died in Azamgarh after drinking illicit liquor. Similar tragedies have unfolded in other states, especially those which have completely or partially banned the sale of liquor. These include Gujarat, Tamil Nadu, Karnataka and Andhra Pradesh. However, in Goa where there are low taxes on liquor, hooch tragedies are almost negligible.

LUCRATIVE TRADE It is well-known that the spurious liquor industry is a lucrative one, running into crores, allegedly at the behest of local liquor mafias, politicians and the administration. And that’s the reason no serious steps have been taken by states to counter the problem. Worse, existing legislations to punish such offences are not adequate nor do they provide severe punishment to deter offenders indulging in this trade.

Various judgments have been made by courts in this regard. An observation by the Gujarat High Court is worth noting in the case of Hemanti Bai vs RG Patel after a disastrous hooch tragedy claimed more than 150 lives in 2009. “In cases like hooch tragedies, the accused could be sentenced even to death if found guilty. Such a punishment will definitely have a deterrent effect but, by itself, would not be suffi-

Photos: UNI

42 February 15, 2015

DEATH TOLL Comparative figures of lives lost due to consumption of spurious liquor in some states

Hooch deaths (2012)

Hooch deaths (2013)

Andhra Pradesh

35

84

Chhattisgarh

39

2

Gujarat

143

29

Jammu and Kashmir

17

0

Karnataka Odisha

211

73

44

10

Punjab Uttar Pradesh

20

44

76

110

Delhi

5

4

States cient to curb the menace of illegal and illicit trading of liquor in the State”, the court said.

Another observation was made by the Supreme Court in the Manichan alias Maniyan and others vs State of Kerala. It states: “When standard and healthy alcohol in the form of liquor is not available or is too costly for a common man, the poor section of the society goes for illicitly distilled liquor which is sold by the bootleggers. The conscienceless bootleggers— thanks to their avarice for money—take full advantage of this human weakness and without any compunction or qualms of conscience, distil illicit liquor and then to increase the sale and to gain astronomical profits make their product more potent at least in taste so as to attract the poor customers. Such poor customers invariably become the prey of unholy avarice on the part of the bootleggers and in the process even lose their lives at times or suffer such injuries which are irreparable like total blindness, etc.”

WEAK REGULATION Though there are laws dealing with liquor regulation drafted by various state governments, these only reflect their non-serious attitude.

Take the UP Excise Act. It makes the offence generally punishable with two years of imprisonment and fine. The Bombay Prohibition Act punishes the alteration of denatured spirit and possession with one year imprisonment and a fine up to `1,000. Other sections dealing with spurious liquor provide for a maximum of two years imprisonment and a fine of `1,000. If a

PEGS OF DEATH (Clockwise from facing page) Police file a report at Malihabad in Lucknow district in January, where many lives were lost due to spurious liquor; removing bans and taxes on liquor can help avoid hooch deaths; a family mourns a death Malihabad

(Source: Reply to a question in Lok Sabha on August 5, 2014)

person consumes spurious liquor and dies in Delhi, the offender is liable for death penalty and a fine up to `10 lakh under the Delhi Excise Act. Capital punishment was introduced for such offenses in the act in 2009.

Surprisingly, one of the measures suggested by experts to curb this menace is to revoke bans and heavy taxes on liquor so that quality liquor can be easily available to people of all strata. Others express just the opposite view and say states should be mandated by Article 47 of the constitution. The article says: “It is the duty of the state to raise the level of nutrition and standard of living and public health.”

These experts say the government should ban liquor completely and do strict enforcement of such a ban.

But in reality, an absolute ban has only added to the number of people dying after consuming spurious liquor which they get at cheap rates. It is time governments change laws to adjust to changing situations and values of society. After all, to drink or not to drink is completely an individual choice. IL INDIA LEGAL February 15, 2015

43

PHOTO ESSAY/ jivan sandhya old age home

senior citizens spend their twilight years here in warm company and a caring environment Story and photos

by Fayeza Pathan

ASK NOT FOR WHOM

I

T is 6 pm and time for dinner. Senior citizens with shaky feet and arthritic knees shuffle to the canteen. Some hold fancy cups, others, steel tumblers in their wobbly hands. They all line up to get their share of milk. “I have to walk carefully. If I spill the milk, I won’t get it again,” says an old man with a smile on his lined face.

Today, they look forward to dinner as it will be different from the usual menu; it’s sponsored by a family. The hallway is filled with the chanting of a bhajan: “Hey Ram, jay Ram jay jay Ram”, before the first bite is taken.

This is the daily ritual at Jivan Sandhya Old

44 February 15, 2015

Age Home in Naranpura, Ahmedabad, a clean and spartan place for those in the twilight years of their life.

ALONE AND BEREFT “It’s been three years since I saw my son. I haven’t visited my home in 17 years. It’s my fate,” says Sanyukta Pandya, 86, with a resigned air. Nonetheless, she is happy with her two roommates. As she reminiscences, she has a faraway look. She is an MA in social psychology and worked in the Department of Rural Development in Gujarat for `130 a month, with an additional `15 for working on women empowerment issues. “I had worked

As per Census 2011, there are 7.7 crore senior citizens in India, which is 7.5 percent of the total population. By 2026, the number of elderly is expected to rise to 17.32 crores, according to the Department of Social Justice.

THE BELL TOLLS for the development of the tribal population in Ranchi,” adds Sanyukta with pride. She retired in 1986 but doesn’t get any pension from the government. Despite buying a flat, she is compelled to stay here as she didn’t get along with her daughter-in-law. Sayunkta pays the rent here from the money she got as gratuity. She doesn’t want to be dependent on anyone.

As per Census 2011, there are 7.7 crore senior citizens in India, which is 7.5 percent of the total population. By 2026, the number of elderly is expected to reach 17.32 crore, according to the Department of Social Justice, Gujarat.

With rising life expectancy, the problems faced by them too are on an upswing.

On top of that, higher medical costs means that children are hard pushed to take care of old parents. As for the government, there is little inclination to really take care of the elderly.

The Indira Gandhi National Old Age Pension Scheme, formulated under the Ministry of Rural Development, has a provision for giving `200 monthly to those over 60 years and `500 to those over 80 years who are below the poverty line. But this amount is too meager and doesn’t cover everyone.

IN THE RIGHT HANDS Inmates of the Jivan Sandhya Old Age Home in Naranpura, Ahmedabad, having lunch in its mess

TOUGH LIFE Meanwhile, life continues in this old-age home. Each room has three iron beds and INDIA LEGAL February 15, 2015

45

PHOTO ESSAY/ jivan sandhya old age home

three cupboards. Some rooms have small temples in the corner. While the ground floor is occupied by women, the first floor is given to men. There are swings near the entrance of the home. This is the only recreation for them, and many senior citizens can be seen sitting around, chit-chatting.

The regime here is strict. Wake-up time is 5.30 am, and they assemble in the prayer hall at 6 am. Prayer lasts for one-and-a-half hours.

Breakfast, served at 8 am, often consists of tea and biscuits. After that, some go for exercise, while others sit in their rooms or chat with friends. Light lunch is served at 11.30 am, after which inmates rest till 3 pm, when it is time for tea. Visitors are allowed from 4 pm to 6 pm. After dinner is over at 6.30 pm, inmates gather in the hall to watch TV. Dinukaka, 90, has been living here for 18 years with his wife. He got married when he was 20 and his wife, 15. They had never seen each other before that. He was a headmaster and supervised 42 teachers.

46 February 15, 2015

LIFE GOES ON (Facing page top) Babubhai showing a picture of his trip to Manali with friends during his younger days (Facing page below) Gauriben entering her room after morning prayers (Left) Sanyukta Pandya discussing news with Dinukaka (Below) Sanyukta Pandya drapping a sari in the room she shares with other inmates

INDIA LEGAL February 15, 2015

47

PHOTO ESSAY/ jivan sandhya old age home

“I loved administration work”, he says.

After retirement in 1961, he opened a shop to repair watches, but it incurred losses. The couple now spends `400-500 on medicines.

While Dinukaka is hard of hearing, his wife has a tough time walking. Though he has two sons, he says regretfully that he couldn’t give them much education due to his responsibilities. While one son is an auto driver, the other does a small business.

Problems cropped up after both got married and didn’t want to share the responsibility of looking after their parents. “I sold my house and gave them `1.5 lakh each,” says the aggrieved father. He and his wife, then, came to live here.

According to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, children are liable to provide monthly expenditure to their parents. The act also includes revocation of transfer of property by senior citizens in case of negligence by relatives. Under Section 125 of the Criminal Procedure Code, penal provision for abandoning senior citizens by children or relatives has been mentioned.

48 February 15, 2015

MOMENTS TO CHERISH (Facing page top) Sanyukta Pandya standing in the prayer hall (Facing page bottom) Resident Fulchandbhai Barot, 76, worked at Navjivan Press during his early years GRIN AND BEAR IT (Left) Women relaxing with their friends (Below) Dinukaka having lunch with his wife in the mess

But an elderly person who is deprived of basic necessities will hardly fight for rights in India’s labyrinthine courts.

When Dinukaka came to know about this act, he went to the collector’s office to ask for a monthly expenditure from his elder son, who is doing well in life. He wrote an application asking for money. But the son didn’t pay. “I, then, dragged him to court for a meager amount of `2,000,” says Dinukaka.

According to Global Watch Age Index (GWAI), prepared by Helpage International and United Nations, India ranks 73rd out of 91 countries on well-being of elderly people.

Countries like Chile, Bolivia and Sri Lanka, with high poverty levels, rank better than India. Bolivia even came up with Renta Dignidad (the Dignity Pension), a universal pension scheme, after rewriting the constitution. Chile ranks 19th in GWAI. It implemented Acceso Universal de Garantias Explicitas, which offers financial protection to elderly persons. In India, sadly, there is no protection for senior citizens, either in aid or pension.

This is no country for old people. IL INDIA LEGAL February 15, 2015

49

RIGHTS/ commercial surrogacy

WHOSE BABY IS IT ANYWAY?

the 2010 surrogacy bill failed to protect the surrogate from exploitation. will the 2014 bill fill these gaps?

By Manasi Kumar and Kimberly Rhoten

T

Illustration: Anthony Lawrence

50 February 15, 2015

HE state of affairs regarding commercial surrogacy in India is reminiscent of the wonderful short tale, The Emperor’s New Clothes. In the story, the emperor believes that he has been fitted with clothes so exquisite that only those who are worthy can see them. And so, he walks out into the public eye without a stitch of clothing despite the fact that he himself cannot see the clothes. Others played along, until a child pointed out that the emperor was wearing no clothes.

Just like this emperor, the Ministry of Child and Family Welfare has walked outdoors claiming to have a new bill on assisted reproductive technologies, which was to be introduced in parliament during the winter session, last year. Yet, we could not see the bill as its draft had not been publicly released. We submitted an RTI requesting this information and were told it was not available. The only available bill is the 2010 version which is located on the website of the Indian Council of Medical Research (ICMR). Like the child in the aforementioned fable, we must ask: “Where are the emperor’s clothes?”

What we do know can be pieced together from tattered information woven through numerous news accounts. We have rumors circulating in the media that the 2014 version bars foreigners, homosexuals and singles from entering into surrogacy arrangements. It is believed that there was also discussion on including a minimum wage for commercial surrogates.

The Indian commercial surrogacy mar-

ket, incidentally, is huge. It is estimated at $445 million per year, with Gujarat as the hub.

It is, therefore, imperative for the government to regulate this industry.

H

owever, the rumoured regulations in the new bill are a cause for concern.

For example, it is unconstitutional to prevent singles from entering into surrogacy agreements. Also, the decision to bar foreigners from the Indian surrogacy market, apparently to prevent exploitation of Indian surrogates, is on shaky grounds. There is no data to suggest that foreign commissioning couples financially exploit the Indian surrogate more than our own citizens. As for preventing homosexual couples, this may be a reaction to the Supreme Court’s (SC) re-criminalization of private, consensual same-sex intercourse under Section 377 of IPC in December 2013.

However, while we wait for SC to stand up for equal rights, can we legally discriminate against foreign homosexual couples?

And, just how would the ministry calculate the minimum amount of money to be given to a surrogate? Minimum wage is designed to help people earn as much as they would require in current market conditions for food, water, shelter, education, clothing, and other necessities. However, the surrogate is being compensated not just for labor or skill, but for forgoing her reproductive freedom for the time that she is carrying the fetus. And that is not a measurable quantity. Moreover, currently an average surrogate earns more than the minimum wage. The highest minimum daily wage in Delhi currently is `435. This would come to `121,800 for 280 days (the average pregnancy term), which is less than half the average most surrogates earn for pregnancy.

One wishes the ministry would instead revisit the financial arrangements contained in the mandatory contracts in the draft assisted reproductive technology 2010 rules, which are likely to remain untouched, and which unreasonably impose certain penalties and forfeitures on the surrogate.

The ministry should also tackle some of the glaring ambiguities in the 2010 bill. For instance, the bill requires the intended parents to cover expenses “related to pregnancy”, but is silent on what these would be. Do they include

It is believed the 2014 surrogacy bill will bar foreigners, homosexuals and singles from entering into arrangements and includes a minimum wage for commercial surrogates. non-medical expenses, such as alternate accommodation, food and post-delivery complications? The bill has also bound the surrogate not to engage in “any act that would harm the fetus during pregnancy”. What acts would this include? Are they only acts that would harm a fetus as determined by the latest, credible, peer-reviewed medical science? What if the clinic tells the surrogate, as they do, that she must abstain from sex during the pregnancy despite the fact that there is no medical reason for such a blanket rule? How much control will there be over the surrogate’s body, while maintaining her civil liberties? Finally, it is important to note that the ministry has also drafted assisted reproductive technology rules, which are equally important to evaluate.

T

hese rules were drafted in 2010 and the ministry’s response to our RTI application indicates that they have not been updated. The 2010 rules lay out the mandatory form for all such technology contracts, though they omit any mention of the contract between the clinic and the commissioning parents. Indeed, the rules seem to undo much of what the bill is purporting to achieve—protection of the surrogate’s rights.

The 2010 bill and rules have failed to protect the surrogate in any meaningful manner from exploitative practices. If anything, sources indicate that the bill has created more problems than solutions. Critical engagement by all key stakeholders with the 2014 bill and rules is sorely needed. However, such discussions are often fruitless without the actual legislative text. It is time we let out a collective cry that the emperor should put on some clothes.

Or in this case, publish the updated bill on the ICMR website. IL

—Manasi Kumar and Kimberly Rhoten are assistant professors at Jindal Global Law School, Sonipat INDIA LEGAL February 15, 2015

51

HEALTH/ prostate cancer

The Emperor of Men’s Maladies it is the commonest malignancy among men and yet, this cancer does not get as much prominence as breast cancer. that’s unfortunate, as it is highly curable in the formative stages

By Shobha John

52 February 15, 2015

I

N 2008, when Raj Kunwar Gupta, 58, a Ghaziabad bank official, had problems urinating, he went for a medical check-up. It found an obstruction in the urine flow, but Gupta ignored it and continued to lead a normal life. However, in 2010, the prostate had enlarged and a Ghaziabad urologist gave him medicines and recommended a biopsy. Gupta ignored it for another six months, till he did a PSA (ProstateSpecific Antigen) test for likely prostate cancer. It was more than 5.84 ng/ml (nanograms per ml),

showing a 22-30 percent increased risk of prostate cancer. The doctor, then, put his foot down and insisted on a biopsy. Gupta did and found it malignant.

After consultations with numerous doctors in Delhi, Gupta finally got his prostate removed via robotic surgery in May 2012.

Today, his PSA level is .009 ng/ml. Gupta says: “I was lucky my cancer was detected in the initial stages. If I had enough knowledge of this disease, I would never have been so lax.”

LOW AWARENESS And that is the biggest hurdle for prostate cancer in India—lack of awareness and funding.

Even as life expectancy has increased, prostate cancer incidence has also grown by 1 percent every year.

Dr Ashish Sabharwal, chief consultant urologist and robotic prostate surgeon, Fortis Hospitals, says: “Unlike other cancers which are well-publicized, few in India know that prostate cancer is the most common malignancy among men and the second leading

cause of cancer deaths after lung cancer.

Prostate cancer should get as much prominence as breast cancer gets. Ten years back, I hardly saw prostate cancer patients; today, I see one a week. Almost 80 percent of patients come in an advanced stage of cancer. That’s sad because if caught early, prostate cancer is 95 percent curable.”

It is believed that of the 8.2 million deaths due to cancer worldwide, one-sixth are due to the prostate, with 70 percent being diagnosed in men over 65 years.

The prostate is a walnut-sized exocrine gland (secretions end up outside the body), which is directly under the bladder. Besides producing a fluid that forms part of semen and which protects the sperm, the prostate gland

PRECISE AND ACCURATE (Facing page) Robotic surgery for prostate cancer is done through the da Vinci System. It uses magnified 3D vision and special instruments to remove the malignant tissue (Below) A healthy lifestyle with regular exercises can go a long way in preventing prostate cancer

As prostate cancer is asymptomatic, only regular screening will catch it. This is a must after 55 years. In case the doctor suspects anything, a biopsy may be needed.

UNI

INDIA LEGAL February 15, 2015

53

HEALTH / prostate cancer

A NICK IN TIME (From left to right) Dr Ben Shapaya, Dr Ashish Sabharwal and Johnson Shapaya, Ben’s 70-year-old father, who had prostate cancer.

Ben, a doctor from Kenya, got his father to India for surgery and two days after the procedure, Johnson recovered fully and flew back to Kenya (Facing page) South African president Nelson Mandela and American actor and filmmaker Robert de Niro also had prostate cancer

54 February 15, 2015

also plays a role in urine control. Though the incidence of prostate cancer is highest in developed countries and among Africans, it is also rising in South and East Asia.

As prostate cancer is asymptomatic, only regular annual screening will catch the disease. This is a must after 55 years and involves a rectal exam and a PSA test. In case the doctor suspects anything, a biopsy of the prostate may be needed. PSA, incidentally, is a protein produced by the cells of the prostate gland. Its level increases with cancer.

The two commonest prostate problems are enlarged prostate and cancer. The prostate gland usually starts to enlarge after a man reaches 40 years. While the size of a normal prostate, says Sabharwal, is 20 gms, it can increase in size due to a tumor inside and cause problems in urine flow (see box). While a PSA of less than 4 ng/ml is considered normal, anything over it should be investigated. It could be due to an infection, enlargement or cancer, say doctors.

Though prostate cancer usually grows slowly and initially remains confined to the prostate gland, some types of cancer are aggressive and can spread quickly. If the PSA

levels are rising fast, it could be an indication of aggressive cancer.

LIFESTYLE CHANGES So what are the factors that predispose one to prostate cancer? It is a diet rich in fatty foods and red meat, sedentary lifestyle, obesity and genetic disposition. It is also seen among patients with a higher socio-economic status and those doing night shifts. Therefore, to reduce the risks, one should eat less processed red meat and more leafy vegetables, stop smoking, avoid sugar and starch as they spark inflammation, exercise, eat fish and have a body-mass index of less than 30. Strangely, it is believed that frequent ejaculation also leads to lesser chances of this cancer. “And while more testosterone does not cause prostate cancer, it is believed that once you have a malignancy, high testosterone can make it more aggressive,” says Sabharwal.

Experts say one of the best options for prostate cancer is robotic surgery. The reason for this is that the nerves for erection and ejaculation are close to the prostate and manual surgery could damage these. “This could lead to impotence and erectile dysfunction. In

PROSTATE PROBLEMS PSA values and chances of getting cancer: Less than 4 ng/ml: 15% 4-10 ng/ml: 22-30% More than 10: 66%

addition, it can lead to a long hospital stay of 5-10 days, blood loss of up to two liters and multiple blood transfusions and infection,” says Sabharwal.

However, it is important to weigh other options than surgery, such as radiotherapy, brachytherapy (internal radiotherapy, where small radioactive metal seeds are placed within the tumour) and ultrasound treatment. It is important to know that there could be some complications while removing the prostate— slight incontinence, or erectile dysfunction.

Robotic surgery is done through the da Vinci System, where surgeons operate through a few small incisions in the stomach. The da Vinci System has a magnified 3D vision system and special instruments (up to four ports) that bend and rotate. The doctor operates this through a console and uses hand movements to manoeuvre the tiny instruments inside the body. This allows malignant tissue to be removed precisely, so that healthy prostate tissue is not damaged.

DON’T DELAY Gupta, who underwent this surgery, says that he was hospitalized for just five days. “I was advised to do exercises and while urine leakage continued for a few days, I am fine now and have resumed my normal lifestyle.” He advises other patients to immediately go to a doctor if there are any urinary problems as

lack of information can delay vital medical intervention. “The government should disseminate information on prostate problems so that it reaches a wider audience,” he says.

At an individual level, doctors and private hospitals are doing their bit to raise prostate awareness. Sabharwal, for example, has started the Blue Ribbon Prostate Clinic, an initiative on Facebook, to raise awareness about prostate cancer. Blue Ribbon, incidentally, is the international symbol of prostate cancer awareness, quite like pink ribbon is for breast cancer awareness.

In September, Dr David B Samadi, chairman of urology and chief of robotic surgery at Lenox Hill Hospital, New York, issued a unique challenge to women worldwide—the #SamadiChallenge. Just as cervical cancer and breast cancer screenings and awareness have gone up with women going in for pap smears and mammograms respectively, Samadi thinks that their proactive approach could encourage the men in their lives too. He, therefore, issued a challenge to women to: *Learn prostate cancer risk factors. *Improve the lifestyles of the men in their lives. *Encourage men to get screened annually. *In case of a positive diagnosis, urge men to seek treatment immediately.

After all in matters of health, one can never be too careful. IL

Incidence One new case occurs every 2.5 minutes; one death from prostate cancer every 17 minutes.

A non-smoking man is more likely to get prostate cancer than any other cancer.

The 5-year survival rate for prostate cancer diagnosed at all stages is 98%; 10-year survival rate is 84% and 15-year survival rate is 56%.

Symptoms Frequent need to

urinate, especially at night A weak or interrupted urinary stream Blood in urine or semen Celebrities with prostate cancer Robert De Niro Michael Douglas Nelson Mandela Former US secretary of state Colin Powell

INDIA LEGAL February 15, 2015

55

RELIGION/ islam

THE FACE OF

56 February 15, 2015

REAL ISLAM

recent acts of terror perpetrated in the name of faith across the world are at variance with what prophet mohammad had preached and how he lived his life

By Zoya Rasul

P

“

ROPHET AVENGED!”—these were the words which the two killers reportedly screamed as they stormed out of the Charlie Hebdo office in Paris after mercilessly killing 11 people. With these words, the world’s attention once again turned to radical Islam. Once again, the debate on whether Islam is an intolerant and violent religion was ignited.

There have been many instances in the past when blasphemy against Islam or Prophet Mohammad has led to blood-spilling on the streets. In 2012, a 14-minute trailer of a film, Innocence of Muslims, sparked bloody protests worldwide, killing over 50. Promptly, an al-Qaeda militant, Ahmed Ashoush of Egypt, issued a fatwa against anyone who was a part of the film. “The blood of the participants should be shed, including the producer, the director, and the actors… their killing is a duty of every capable Muslim,” he said on an Islamist militant website.

Such calls and acts raise serious questions: Does revenge and killing define the duty of Muslims? Is this permissible under the tenets of Islam? The answer is simple: No. In one of the revelations to the Prophet, it was taught that everything should be based on principles of right and wrong, and not on

“… and whenever they are angry they forgive.…”

—(42:37-43), on qualities of true believers

Photos: UNI

INDIA LEGAL February 15, 2015

57

RELIGION/ islam

Islam and its teachings do not advocate the path of violence or revenge. As Mohammad attained prophethood, the course of his life was inflicted with sufferings. But he never resorted to violence. favoritism towards the people of your own religion and injustice against others. It says: “Help one another in works of righteousness and goodness, and help not one another in sin and aggression.” (5:2) This clearly instructs Muslims to join their fellow Muslims in doing good and just acts, but not in committing transgression and injustice out of misguided support for one’s co-religionists.

A look at the Prophet’s life further establishes how Islam and its teachings do not advocate the path of violence or revenge. As Mohammad attained prophethood, the course of his life, which was dedicated to spreading the message of Allah, was inflicted with sufferings. But he never resorted to violence. In one of the instances quoted in the Hadith (record of the sayings of Mohammad), the Prophet went to some powerful people of Ta’if (a city in Mecca in Saudi Arabia) to spread the word of God and asked for their submission to Allah.

They rejected it vehemently and started mocking him. Street boys stoned him so much so that his shoes were filled with dripping blood. But he did not retaliate. Instead, he prayed for them. For him, their actions spoke of ignorance. For him, the need was to enlighten

58 February 15, 2015

them about the teachings of Islam and not to hit back. For any Muslim, the Prophet’s life is the only example to go by and it undoubtedly, advocates peace.

D

own the ages, prophets have been mocked at and abused by their contemporaries. Some of the epithets cited in the Quran for them include “a liar” (40:24), “possessed” (15:6), “a fabricator” (16:10), “a foolish man” (7:66). However, nowhere does the holy book prescribe violent punishment for the same. The matter demands peaceful admonishment—sound arguments which clarify the allegations.

Violence to such provocations puts Islam and its teachings under a question mark —a condition never preferred by a true believer.

The treaty of Huddaibiya, a crucial incident in the history of Islam, further advocates the practice of benevolence and endurance for a true follower. Because of the hostilities from the Quraish (the most powerful tribe of Mecca during the time of the Prophet), the Prophet and his companions had to leave Mecca and move to Madina. With time, Islam gained power and acceptance but, for Quraish, they

were still enemies. A year before Mecca was won over, the Prophet and his companions were stopped from entering the place. To proceed further on the pilgrimage, they were asked to sign a treaty, whose terms were clearly unjust. But, for the sake of peace, the Prophet agreed.

Ali bin Abi Talib, who was documenting the treaty, addressed the Prophet as “Mohammad, the Prophet of Allah” to which the Quraish objected. They wanted Ali to strike out the part relating to the Prophet, which he refused to do. But the Prophet himself took the sheet in his hands and stroked those words off. The incident clearly indicates how strongly he preached and practiced peace, despite all the odds.

H

ere’s another incident which thwarts the prevalent idea that Islam demands Muslims to avenge acts against their religion or religious figures.

Once, there were four men who accused the

Holy Prophet’s wife, Aisha, of immoral conduct. Their allegation was ultimately proved to be false. One of them, Mistah, who was poor, used to receive financial assistance from Aisha’s father, Abu Bakr (the foremost follower of the Prophet and later, the first Caliph of Islam). After this incident, Abu Bakr swore against helping Mistah ever.

The following verse was revealed to the Prophet on this occasion: “Let not the possessors of grace and means among you swear against giving to the near relatives and the poor and those who had to flee in Allah’s way.

Pardon and overlook. Do you not love that Allah should forgive you?” (24:22) When Abu Bakr heard about this revelation, he resumed providing assistance to Mistah as before and said: “Indeed, I certainly love that Allah should forgive me.”

Muslims need to interpret Islam in the light of the Quran and as per the life of the Prophet. The Quran’s first verse reads: “In the

“Pardon and overlook. Do you not love that Allah should forgive you?”

—(24:22)

INDIA LEGAL February 15, 2015

59

RELIGION/ islam

name of God, the Most Merciful, the most Compassionate.” This verse is repeated 114 times and stresses how Allah is the god of mercy and compassion, which is hence expected of the believers as well. A verse of the Quran, “Innallaha Ma’ As Sabirin” that means “Allah is with the patient,” substantiates that Islam is a religion of tolerance and advocates patience and peace.

D

escribing the good qualities that believers ought to strive for, the Quran says: “… and whenever they are angry they forgive.… and those who, when great wrong afflicts them, defend themselves.

And the recompense of evil is punishment like it; but whoever forgives and amends, his reward is with Allah.… And whoever is patient and forgives—that surely is an affair of great resolution.” (42:37-43) Whenever a verse of the Quran is quoted which suggests otherwise, it is to be noted that its interpretation has to be done in context with the times when these revelations were made. Many a time, verses are quoted out of context to incite Muslims to resort to violence.

The responsibility, however, rests with them to be wise enough to interpret the Quran the way it is meant to be.

To absolve the tag of aggressors and extremists, Muslims need to set and lead by example. Refraining from playing into the hands of people working for vested interests, they should strive to become the face of real Islam, as preached by the Prophet and as preferred

by Allah. This is the only way to save themselves from the negative image and establish that their faith is one of peace, justice and love.

To follow the Prophet’s way of life is the greatest gesture of respect towards him. IL

60 February 15, 2015

GLOBAL TRENDS/ europe/religious violence

A WAR BETWEEN

TWO WORLDS whatever choices europe makes in combating radical islam, prospects of peace are bleak

By George Friedman

T

HE murders of cartoonists who made fun of Islam and of Jews shopping for their Sabbath meals by Islamists in Paris in January have galvanized the world. A galvanized world is always dangerous. Galvanized people can do careless things. It is in the extreme and emotion-laden moments that distance and coolness are most required. I am tempted to howl in rage. It is not my place to do so. My job is to try to dissect the event, place it in context and try to understand what has happened and why. From that, after the rage cools, plans for action can be made. Rage has its place, but actions must be taken with discipline and thought.

I have found that in thinking about things geopolitically, I can cool my own rage and find, if not meaning, at least explanation for events such as these. As it happens, my new book, titled Flashpoints: The Emerging Crisis in Europe, is about the unfolding failure of the great European experiment, the European Union, and the resurgence of European nationalism. It discusses the re-emerging borderlands and flashpoints of Europe and raises the possibility that Europe’s attempt to abolish conflict will fail. I mention this book because one chapter is on the Mediterranean borderland and the very old conflict between Islam and Christianity. Obviously this is a matter I have given some thought to, and I will draw on Flashpoints to begin making

62 February 15, 2015

sense of the murderers and murdered, when I think of things in this way.

Let me begin by quoting from that chapter: We’ve spoken of borderlands, and how they are both linked and divided. Here is a border sea, differing in many ways but sharing the basic characteristic of the borderland. Proximity separates as much as it divides. It facilitates trade, but also war. For Europe this is another frontier both familiar and profoundly alien.

Islam invaded Europe twice from the Mediterranean —

UNITED WE GRIEVE Pallbearers carry the coffin of Charlie Hebdo cartoonist Bernard Verlhac at Montreuil town hall near Paris Below: Processions and candle-light vigils held across the globe, including London (left) and Taipei (right), in support of Charlie Hebdo

Photos: UNI

Christians and Muslims have been bitter enemies, battling for Iberia. It is rare that two religions might be so obsessed with each other and at the same time so ambivalent. This is an explosive mixture. first in Iberia, the second time in southeastern Europe, as well as nibbling at Sicily and elsewhere. Christianity invaded Islam multiple times, the first time in the Crusades and in the battle to expel the Muslims from Iberia. Then it forced the Turks back from central Europe. The Christians finally crossed the Mediterranean in the 19th century, taking control of large parts of North Africa. Each of these two religions wanted to dominate the other. Each seemed close to its goal. Neither was successful. What remains true is that Islam and Christianity were obsessed with each other

from the first encounter. Like Rome and Egypt they traded with each other and made war on each other.

Christians and Muslims have been bitter enemies, battling for control of Iberia. Yet, lest we forget, they also have been allies: In the 16th century, Ottoman Turkey and Venice allied to control the Mediterranean. No single phrase can summarize the relationship between the two save perhaps this: It is rare that two religions might be so obsessed with each other and at the same time so ambivalent. This is an explosive mixture.

INDIA LEGAL February 15, 2015

63

GLOBAL TRENDS/ europe/religious violence

MULTICULTURALISM AND GHETTOIZATION The current crisis has its origins in the collapse of European hegemony over North Africa after World War II and the Europeans’ need for cheap labor. As a result of the way in which they ended their imperial relations, they were bound to allow the migration of Muslims into Europe, and the permeable borders of the European Union enabled them to settle where they chose. The Muslims, for their part, did not come to join in a cultural transformation.

They came for work, and money, and for the simplest reasons. The Europeans’ appetite for cheap labor and the Muslims’ appetite for work combined to generate a massive movement of populations.

The matter was complicated by the fact that Europe was no longer simply Christian. Christianity had lost its hegemonic control over European culture over the previous centuries and had been joined, if not replaced, by a new doctrine of secularism. Secularism drew a radical distinction between public and private life, in which religion, in any traditional sense, was relegated to the private sphere with no hold over public life. There are many charms in secularism, in particular the freedom to believe what you will in private. But secularism also poses a public problem.

There are those whose beliefs are so different from others’ beliefs that finding common ground in the public space is impossible. And then there are those for whom the very distinction between private and public is either meaning-

64 February 15, 2015

less or unacceptable. The complex contrivances of secularism have their charm, but not everyone is charmed.

Europe solved the problem with the weakening of Christianity that made the ancient battles between Christian factions meaningless. But they had invited in people who not only did not share the core doctrines of secularism, they rejected them. What Christianity had come to see as progress away from sectarian conflict, Muslims (and some Christians) may see as simply decadence, a weakening of faith and the loss of conviction.

There is here a question of what we mean when we

PERPETUAL FEELING OF INJUSTICE (Left) AFP photographer Asif Hassan shot during a procession against Charlie Hebdo in Karachi (Facing page) Protest in Lahore against Charlie Hebdo, which featured a cartoon of Prophet Mohammad on its cover following the terror attack on its office (Facing page below) Protestors burn the French flag in Quetta

Unable to distinguish radical Muslims from other Muslims, Europe will move towards deportation and ghettoization. speak of things like Christianity, Islam and secularism.

There are more than a billion Christians and more than a billion Muslims and uncountable secularists who mix all things. It is difficult to decide what you mean when you say any of these words and easy to claim that anyone else’s meaning is (or is not) the right one. There is a built-in indeterminacy in our use of language that allows us to shift responsibility for actions in Paris away from a religion to a minor strand in a religion, or to the actions of only those who pulled the trigger. This is the universal problem of secularism, which eschews stereotyping. It leaves unclear who is to be held responsible for what. By devolving all responsibility on the individual, secularism tends to absolve nations and religions from responsibility.

This is not necessarily wrong, but it creates a tremendous practical problem. If no one but the gunmen and their immediate supporters are responsible for the action, and all others who share their faith are guiltless, you have made a defensible moral judgment. But as a practical matter, you have paralyzed your ability to defend yourselves. It is impossible to defend against random violence and impermissible to impose collective responsibility. As Europe has been for so long, its moral complexity has posed for it a problem it cannot easily solve. Not all Muslims—not even most Muslims—are responsible for this.

But all who committed these acts were Muslims claiming to speak for Muslims. One might say this is a Muslim problem and then hold the Muslims responsible for solving it.

But what happens if they don’t? And so the moral debate spins endlessly.

This dilemma is compounded by Europe’s hidden secret: The Europeans do not see Muslims from North Africa or Turkey as Europeans, nor do they intend to allow them to be Europeans. The European solution to their isolation is the concept of multiculturalism—on the surface a most liberal notion, and in practice, a movement for both cultural fragmentation and ghettoization. But behind this there is another problem, and it is also geopolitical. I say in Flashpoints that: Multiculturalism and the entire immigrant enterprise faced another challenge. Europe was crowded. Unlike the United States, it didn’t have the room to incorporate millions of immigrants—certainly not on a permanent basis.

Even with population numbers slowly declining, the increase in population, particularly in the more populous countries, was difficult to manage. The doctrine of multiculturalism naturally encouraged a degree of separatism.

Culture implies a desire to live with your own people.

Given the economic status of immigrants the world over, the inevitable exclusion that is perhaps unintentionally incorporated in multiculturalism and the desire of like to live with like, the Muslims found themselves living in extraordinarily crowded and squalid conditions. All around Paris there are high-rise apartment buildings housing and separating Muslims from the French, who live elsewhere.

These killings have nothing to do with poverty, of INDIA LEGAL February 15, 2015

65

GLOBAL TRENDS/ europe/religious violence

GLOBAL TENTACLES OF TERROR (Left and below) The recent hostage crisis at a cafe in Sydney, Australia, left three people dead

Minister Manuel Valls has called this a war on radical Islam. If only they wore uniforms or bore distinctive birthmarks, then fighting only the radical Islamists would not be a problem. But Valls’ distinctions notwithstanding, the world can either accept periodic attacks, or see the entire Muslim community as a potential threat until proven otherwise. These are terrible choices, but history is filled with them. Calling for a war on radical Islamists is like calling for war on the followers of Jean-Paul Sartre. Exactly what do they look like?

The European inability to come to terms with the reality it has created for itself in this and other matters does not preclude the realization that wars involving troops are occurring in many Muslim countries. The situation is complex, and morality is merely another weapon for proving the other guilty and oneself guiltless. The geopolitical dimensions of Islam’s relationship with Europe, or India, or Thailand, or the United States, do not yield to moralizing.

Something must be done. I don’t know what needs to course. Newly arrived immigrants are always poor. That’s why they immigrate. And until they learn the language and customs of their new homes, they are always ghettoized and alien. It is the next generation that flows into the dominant culture. But the dirty secret of multiculturalism was that its consequence was to perpetuate Muslim isolation.

And it was not the intention of Muslims to become Europeans, even if they could. They came to make money, not become French. The shallowness of the European postwar values system thereby becomes the horror show that occurred in Paris in early January.

THE ROLE OF IDEOLOGY But while the Europeans have particular issues with Islam, and have had them for more than 1,000 years, there is a more generalizable problem. Christianity has been sapped of its evangelical zeal and no longer uses the sword to kill and convert its enemies. At least parts of Islam retain that zeal. And saying that not all Muslims share this vision does not solve the problem. Enough Muslims share that fervency to endanger the lives of those they despise, and this tendency toward violence cannot be tolerated by either their Western targets or by Muslims who refuse to subscribe to a jihadist ideology. And there is no way to distinguish those who might kill from those who won’t. The Muslim community might be able to make this distinction, but a 25year-old European or American policeman cannot. And the Muslims either can’t or won’t police themselves.

Therefore, we are left in a state of war. French Prime

66 February 15, 2015

be done, but I suspect I know what is coming. First, if it is true that Islam is merely responding to crimes against it, those crimes are not new and certainly didn’t originate in the creation of Israel, the invasion of Iraq or recent events.

This has been going on far longer than that. For instance, the assassins were a secret Islamic order to make war on individuals they saw as Muslim heretics. There is nothing new in what is going on, and it will not end if peace comes to Iraq, Muslims occupy Kashmir or Israel is destroyed.

Nor is secularism about to sweep the Islamic world. The Arab Spring was a Western fantasy that the collapse of communism in 1989 was repeating itself in the Islamic world with the same results. There are certainly Muslim liberals and secularists. However, they do not control events—no single group does—and it is the events, not the theory, that shape our lives.

UNPLEASANT CHOICES Europe’s sense of nation is rooted in shared history, language, ethnicity and yes, in Christianity or its heir, secularism. Europe has no concept of the nation except for these things, and Muslims share in none of them. It is difficult to

Not all Muslims are responsible for this (violence). But all who committed these acts were Muslims claiming to speak for Muslims. imagine another outcome save for another round of ghettoization and deportation. This is repulsive to the European sensibility now, but certainly not alien to European history. Unable to distinguish radical Muslims from other Muslims, Europe will increasingly and unintentionally move in this direction.

Paradoxically, this will be exactly what the radical Muslims want because it will strengthen their position in the Islamic world in general, and North Africa and Turkey in particular. But the alternative to not strengthening the radical Islamists is living with the threat of death if they are offended. And that is not going to be endured in Europe.

Perhaps a magic device will be found that will enable us to read the minds of people to determine what their ideology actually is. But given the offense many in the West have taken to governments reading emails, I doubt that they would allow this, particularly a few months from now when the murders and murderers are forgotten, and Europeans will convince themselves that the security apparatus is simply trying to oppress everyone. And of course, never minimize the oppressive potential of security forces.

The United States is different in this sense. It is an artificial regime, not a natural one. It was invented by our founders on certain principles and is open to anyone who embraces those principles. Europe’s nationalism is romantic, naturalistic. It depends on bonds that stretch back through time and cannot be easily broken. But the idea of shared principles other than their own is offensive to the religious everywhere, and at this moment in history, this aversion is most commonly present among Muslims...

The Mediterranean borderland was a place of conflict well before Christianity and Islam existed. It will remain a place of conflict even if both lose their vigorous love of their own beliefs. It is an illusion to believe that conflicts rooted in geography can be abolished. It is also a mistake to be so philosophical as to disengage from the human fear of being killed at your desk for your ideas. We are entering a place that has no solutions. Such a place does have decisions, and all of the choices will be bad. What has to be done will be done, and those who refused to make choices will see themselves as more moral than those who did. There is a war, and like all wars, this one is very different from the last in the way it is prosecuted. But it is war nonetheless, and denying that is denying the obvious. IL —Courtesy Stratfor INDIA LEGAL February 15, 2015

67

SPORTS/ cricket / ms dhoni

CAPTAIN COOL’S PERFECT STUMPING although “ms” had said in 2012 that he might take the final call on quitting one of the formats by 2013, the decision was sudden, and a tad intriguing

By V Krishnaswamy

I

T should not have been a surprise and yet it was. Almost three years ago, with India trailing Australia 0-2 after two Tests in the four-Test series, Mahendra Singh Dhoni had said on the eve of the third Test in Perth that he might quit one of the formats of the game by the end of 2013 if he wanted to go for the World Cup 2015.

The captain, in his matter-of-fact style, had told a packed media conference in Perth: “If I want to see the 2015 World Cup, I’ll have to retire from one of the formats. It’s too early right now. I am not that old. I am just 30.

There is still time. We will see by 2013, and by

68 February 15, 2015

Dhoni in cricket’s longest format Tests Runs

Hs

Avg

Overall 90 4876 224 38.09 As Captain 60 3454 224 40.63

100s Cts

St

6 5

38 24

256 187

Dhoni is the only Indian captain to have won all major ICC Trophies: the World T20 title in 2007; the World Cup in 2011; and the ICC Champions Trophy in 2013

The journey as Test captain from 2011 2011 (Away) 1-1 against South Africa in South Africa (Away) 1-0 over West Indies in West Indies (Away) 0-4 to England in England (Home) 2-0 over West Indies in India

2012 (Away) 0-4 to Australia in Australia (Sehwag led in the last Test); (Home) 2-0 over New Zealand in India (Home) 1-2 to England in India

2013 (Home) 4-0 over Australia in India (Home) 2-0 over West Indies in India (Away) 0-1 to South Africa in South Africa

2014 (Away) 0-1 to New Zealand in New Zealand (Away) 1-3 to England in England (Away) 0-2 to Australia in Australia (Kohli led in first and last Test)

2012) but without much success and India lost it to go down 0-3 in the series. Dhoni was then injured and Virender Sehwag took over for the last Test match, which, too, India lost for a 0-4 series loss.

As for his form, in the 21 Test matches since that Perth Test, MS Dhoni has had one double century (224 against Australia at Chennai), a 99 against England (at Nagpur), seven other fifties and three more scores of 40-plus. Four of the fifties came in five Tests against England in the summer of 2014—the last on August 15 at the Oval. So, the form was taken care of, but the results were abysmal.

India lost each of the three overseas series in 2014-15.

A

s for his fitness and body, that is something only Dhoni would know. But since he was playing most of the matches that too seemed fine. Dhoni did take breaks—for rest or due to injury—but the trend became fairly pronounced in 2013 and 2014. At the Tri-series in West Indies in July 2013, except for two matches—one at the start and then the final—Virat Kohli led the team before Dhoni came in for the final and won the Tri-series in the last over.

India’s most successful captain was also not available for the ODI series against Zimbabwe, in Zimbabwe, in July-August 2013, which India won 5-0 under Virat Kohli. His absence was also conspicuous at the Asia Cup in Bangladesh (February-March 2014). Kohli led the team but India did not make it to

OUT OF SYNC (Facing page below) Dhoni’s absence from the Test team became pronounced in 2013 and 2014.

Probably he had lost interest in the longest format of the game (Below) Dhoni was confident that Virat Kohli was fit, deserving and raring to lead Team India permanently in Tests

2013, I mean the end of 2013.”

It took everyone by surprise. But Dhoni also clarified: “What I really meant was by 2013 I would have to see where I stand when it comes to my body, whether I will be able to survive until the 2015 World Cup.” The two things that Dhoni talked about at that time were his form and fitness and how his body was taking the pressure.

Privately, the Indian captain had also expressed the desire to leave the team after ensuring a suitable leader for the future. So, did things pan out over the next 2-3 years?

Yes and no.

Dhoni did play that Perth Test (January INDIA LEGAL February 15, 2015

69

SPORTS/ cricket / ms dhoni

WHAT THE GREATS FELT ABOUT MS

“I have read that great leaders ... give credit to others when things are going well and take responsibility when things are going badly. MS Dhoni is that to the ‘T’.”

“When I die, the last thing I want to see is the six that Dhoni hit in the 2011 World Cup final.”

“Dhoni the best captain I have played under.”

“Dhoni is my hero.

We talk a lot about Sachin Tendulkar, Virender Sehwag, but this boy has as much talent as anyone in the game.”

Gary Kirsten

Sunil Gavaskar

Sachin Tendulkar

Kapil Dev

the final. Finally, again in the ODI series against Sri Lanka in November 2014, the Kohli-led Indians beat Lanka 5-0.

However, Dhoni was at the helm at the start of 2014 in New Zealand when India lost the Test series 0-1; India also lost the ODI series 0-4. Then he was again unavailable for the Asia Cup. He came back for the Test series against England (India lost 1-3, barring that historical win at Lord’s). Then Dhoni led the team for a 3-1 win in the ODI series. But again he was out for the ODI series at home against Sri Lanka.

I

t was now amply clear that Dhoni’s heart lay not in Tests. Fitness was also emerging as a problem area. He preferred the shorter format, where his success as a captain and player were both phenomenal. Also, it was easier on his body.

The buzz is that personally Dhoni would have preferred to skip the Test series against Australia and instead focus on the ODI series and the World Cup. But the Board of Control for Cricket in India (BCCI) and the selectors wanted him at the helm. He missed the first

70 February 15, 2015

Test of the latest Australia series. He was back for the second (India lost) and third Test (a draw). At the start of the third Test in Melbourne, Dhoni was still undecided about his Test future. If Team India, which was trailing 0-2 had won the Test to make it 1-2, he may have stayed on for one more Test—in the hope of leveling the series before bidding goodbye to Test cricket.

But once the third Test was a draw and India lost the series, Dhoni saw no point in carrying on. He wanted Kohli, his preferred and obvious successor, to get the experience of leading India in one more overseas Test, before the Delhi batsman became a full-time claimant for the position.

Despite BCCI officials wanting him to finish the series in the saddle, Dhoni felt Kohli was ready to take over and he himself could do with an extra week of rest before the ODI series and then the World Cup. Also, the next Test series was far away in October 2015 and Dhoni did not want things hanging till then.

The IPL controversy, too, and his personal proximity to BCCI president, N Srinivasan, and his company, India Cements, was begin-

“As far as one-day cricket is concerned, Dhoni is one of the greatest captains of all times in India.”

“He is undoubtedly one of the best captains we have ever produced.”

Saurav Ganguly

Gundappa Vishwanath

ning to take a toll. He wanted to play World Cup, probably lead the Chennai Super Kings one last time in the IPL (unless the Supreme Court takes a harsh decision regarding ownership and the team itself ) and then probably retire from international cricket itself.

F

or more than two years, there has been constant clamor for Dhoni’s resignation or removal as the skipper.

Washouts in England and Australia in 2011 and 2012 respectively, followed by loss to South Africa in South Africa in 2013 and then the three away-series losses in New Zealand, England and Australia in 2014 raised the pitch more than ever.

Even then when Dhoni put in his papers at the end of the third Test in Australia, there wasn’t a single soul who was not surprised by the suddenness because like most of his other decisions Dhoni took no one in confidence till the very last. He did not give any inkling of the impending bombshell, when he met the media after the draw in the Melbourne Test.

A few minutes later, BCCI released a terse statement: “One of India’s greatest Test cap-

“He has that uniqueness to respond to a tough situation with ease.

He does not involve himself much emotionally, and that’s his quality. India was lucky to have a captain like Dhoni.”

“He is a great leader by example. Someone whom I have always admired for his ability to remain balanced and have the sense of equanimity about his captaincy.”

VVS Laxman

Rahul Dravid

tains under whose leadership India became the number one team in Test rankings, MS Dhoni, has decided to retire from Test cricket citing the strain of playing all formats of cricket.” It added: “BCCI, while respecting the decision of Dhoni to retire from Test cricket, wishes to thank him for his enormous contribution to Tests and the laurels that he has brought to India.” Dhoni, who had led India in 60 of the 90 Tests he had played was gone.

He was India’s most successful captain with 27 wins (21 at home and six away) and 18 losses (15 of them away and 3 at home).

Why he did he do that in the middle of a series? Why so suddenly? Why did he not wait for the final Test to get over? The questions continued, but there were no answers, from BCCI or the man himself. All that the media had was a statement from BCCI. Dhoni had left without any fanfare.

Almost in a manner reminiscent of the way he took over the captaincy of the team in World T20 Championships in 2007. He came in suddenly and left as suddenly. Typical of the man, as the cricketing world would repeat over and over again. IL INDIA LEGAL February 15, 2015

71

SPORTS/ corruption/badminton association of india

Something rotten in the state of badminton this national body flouted rules with impunity while selecting three players for an international tourney

By Prabir Biswas

C

ORRUPTION and nepotism in sports bodies are nothing new in India. Powerful people control them and run them like personal fiefdoms. As a result, India has failed to make a mark as a great sporting nation on the globe. In yet another blatant case where rules were flouted to favor non-deserving candidates, the Badminton Association of India (BAI) selected three players—Apinder Sabharwal, Manmohan Sharma and Abhishek Sharma—as entries for the Badminton World Federation (BWF) Iceland International 2015.

DEFYING LOGIC What was shocking about these names was age. Both Sabharwal (left) and Manmohan Sharma were well past 40 years (old enough to retire), while Abhishek Sharma (in his twenties) was a little-known player.

Their inclusion in an international event defied all logic. The tournament is meant to give promising shuttlers a leg-up in international rankings.

To make matters worse, none of them played their first round matches in Iceland, revealed sources to India Legal, and reportedly called it quits at the 11th hour. Intriguingly, Apinder is a referee, while Manmohan, a cop from Punjab. One may argue that the players may have

72 February 15, 2015

been sent there on a private basis. But going by their playing history, BAI will need to do a lot of explaining. Its constitution clearly states that a player must have participated in four tournaments of repute, prize money tournaments worth more than `1 lakh and selection tournaments for national teams to become eligible to play in a tourney abroad on a private basis. Apinder and Manmohan do not meet any criteria.

PASSING THE BUCK India Legal spoke to Girish Natu, the liaison officer between BAI and BWF, but he said the man to contact was TPS Puri, BAI vicepresident (administration). Puri also didn’t respond to repeated calls. Several questions need to be answered by BAI: (a) What was the criterion for selection? (b) Where did the selection committee meet? (c) On what grounds were people well past their forties selected for an international tournament? (d) Why did the players quit at the last moment? (e) Who bore the expenses of their trip?

BAI broke rules last year as well when the team for an exchange program for promising shuttlers in Japan consisted mostly of children of senior officials from BAI and Delhi Capital Badminton Association.

Even the Delhi High Court had recently expressed its concern over the functioning of BAI while upholding an order from CIC directing BAI to disclose certain information pertaining to its rules and regulations.

It is high time the rot in sports bodies is stemmed and deserving candidates get their rightful due. IL

BOOKS/ reaching for the stars

this is the untold story of how India triumphed in its mission to mars. it is also about its dash to win the geo-political race and charting a new role in space exploration

By Ramesh Menon

L

Dream

ET us admit it. India can produce scientific miracles.

How else can you explain the ingenuity of Indian scientists, who, with a shoestring budget of just $70 million (`4,500 million) produced Mangalyaan, the first deep space inter-planetary mission to Mars in 2013?

Undoubtedly, the Mars Orbiter Mission was the cheapest inter-planetary mission in the

74 February 15, 2015

world. India made it possible, incurring a cost of just $76 million, while the United States spent $671 million on Maven, the mission to Mars, a few days after the Indian mission. Maven took six-and-a-half years in the making. Mangalyaan took 15 months! Sadly, this was not noticed or celebrated in India.

The satellite that was the size of a Nano car hurtled into space lighting up millions of dreams and making the world recognize the supremacy of Indian space technology and

Mission craft. All the five payloads were indigenous.

As the writers of Reaching for the Stars say: “Big science they say is fuelled by big dreams, but big dreams can become real only if they are dreamt early enough.”

Reaching for the Stars by Pallava Bagla and Subhadra Menon is veritably an insider’s narrative of what the mission entailed and how it was planned. More than 500 engineers and scientists at the headquarters of the Indian Space Research Organization in

RED HOT TRAIL Scientists at work on Mangalyaan, the 1,350-kg, Nanosized satellite designed to orbit the red planet

Bengaluru, scientists at the Space Applications Center and the Physical Research Laboratory in Ahmedabad and the rocket fabricators at the Vikram Sarabhai Space Center at Thiruvananthapuram worked long hours all those months to fabricate a dream.

As the authors reveal what went behind the scenes, you realize what passion can do to bring in excellence.

This could have been a boring, technical book but the writers, with their slick INDIA LEGAL February 15, 2015

75

BOOKS/ reaching for the stars

The Mars Orbiter Mission was the cheapest inter-planetary mission. India incurred a cost of just $76 million, while the US spent $671 million on Maven, its mission to Mars. anecdotal and personalized style, have made it both an easy and memorable read. The details are arresting and stay in the mind, mapping a picture that will stay for long. The Polar Satellite Launch Vehicle was as tall as 15 storeys, weighing as much as 50 elephants.

Imagine Mangalyaan hurtling down its path of 690 million kilometers.

A

s mission after mission brought back pictures, data and interpretations from Mars, it ignited more mystery and kept the search warm for signs of life. No wonder it is the hottest topic of space exploration today, as many imagine that one day

PEDALLING TO REACH THE SKIES PSLV-C25, the launch vehicle of Mangalyaan, takes off from Sriharikota on November 5, 2014 (Above right) In the fifties and sixties, parts of rockets that were to be assembled were carried by scientists on bicycles

76 February 15, 2015

Mars will be colonized. Astronomers have been obsessed with Mars for many years.

There are details in the book on similarities with our earth and the dissimilarities that make it inhabitable. But there is still hope that life on Mars could be realized one day…

Various cultures worship Mars in some form or other. In India, a person is called a manglik if born when Mars is in a certain position and it is considered inauspicious to marry such a person as it is feared that there

REACHING FOR THE STARS–India’s Journey to Mars and Beyond

By Pallava Bagla and Subhadra Menon Published by Bloomsbury India Pages: 257 Price: `899

will be troubles in the marriage. Ridiculously, there were reports that actress Aishwarya was a manglik and that she would have to marry a peepal tree to ward off its evil effects.

In the fifties and sixties, parts of rockets that were to be assembled were carried by scientists on bicycles. And look at where we have reached today.

A debate continues on whether the Mars mission was required, as India still has to provide electricity to nearly 400 million

people, tackle malnutrition and build toilets.

But it is also a fact that satellite technology has helped India take a scientific leap.

Among many things, it has helped save thousands before cyclones and made it possible for satellites to beam pictures into our living rooms. That is why it is important to read this book as it tells us about the passion of Indian scientists and their missionary zeal that was fired by the one thought—doing something exceptional to benefit future generations. IL INDIA LEGAL February 15, 2015

77

IS THAT LEGAL?

At your own risk A passenger misses his connecting flight because his first flight could not take off due to heavy congestion at the airport. Can the passenger sue either the airline or airport authorities for his loss?

If a passenger misses his connecting flight, he can sue the airline only if there is some kind of deficiency in service by the concerned airline. However, passengers facing delays due to factors beyond the airline’s control, like bad weather and air traffic congestion, etc, are not entitled to compensation.

In the above case, the passenger missed his connecting flight due to heavy congestion at the airport.

If the reason cited by the airline responsible for the delay is genuine and taken in the interest of passengers, the person can’t seek legal action against the airline.

The Directorate General Civil Aviation has established clear-cut rules and guidelines in 2010 regarding conditions under which a passenger can claim compensation for lax services by airlines.

Illustrations: UdayShankar

Making pets of wild animals Many people have the passion of keeping exotic birds and animals, and even dangerous animals like tigers, as pets. Is it legally permissible?

Private possession of wild animals, particularly big cats that are native to India, is prohibited under the Wildlife (Protection) Act of 1972. Article 39 of the Wildlife (Protection) Act stipulates that every wild animal, other than vermin, is considered state property, and according to section 40(2) of the act, no person without previous permission from the chief wildlife warden is allowed to acquire or keep in his possession, transfer to any person, or destroy or damage such government property.

Section 39(2) of the act further says that any person who obtains, by any means, the possession of such animal, should report it to the nearest police station or authorized officer within 48 hours and should, if required, hand over such property to the officer-in-charge.

Additionally, the act prohibits the purchase or acquisition of any captive or wild animal from anyone except a licensed dealer or person otherwise authorized to sell the animal.

Part I of Schedule I of the act lists mammals that are protected under it, including cheetahs, clouded leopards, fishing cats, golden cats, Indian lions, leopards, panthers, marbled cats, snow leopards and tigers. Part II of Schedule II also lists the jungle cat (Felis Chaus) as a protected species.

78 February 15, 2015

Freedom to be responsible While cartoons about the Prophet have led to much bloodshed in France, in Indian law, what is given more importance—freedom of speech or according respect to religious sentiments? Please cite examples vis-a-vis books, movies, etc.

Being a secular country, no religion has been accorded official status in India. The state gives equal treatment to all religions in the country. At the same time, our constitution guarantees freedom of speech and expression to all citizens, as enshrined in Article 19 (1)(a).

However, it is not unfettered and the state can impose restrictions depending on the situation. The idea is to maintain a harmonious balance between freedom of speech and expression and using this

freedom to spread hatred towards other religions. The Indian Penal Code clearly sets out punishment for such acts.

There have been numerous controversies in this regard in India. Bollywood blockbuster PK was recently slammed by hardline right-wing outfits for hurting religious sentiments of the Hindus and a ban was sought on the movie. Another film, MSG: The Messenger of God starring chief of Dera Sacha Sauda chief Gurmeet Ram Rahim Singh, faced trouble as it could ignite religious sentiments.

Some of the prominent books like The Hindus: An Alternative History; Da Vinci Code; The Satanic Verses; and The Hindus: An Alternative History have attracted controversy on religious grounds.

Not liable to libel What do electoral laws say about poll promises not fulfilled by politicians? Can the voters take them to court if their expectations are not met?

Poll promises are nothing but a political party’s agenda on which it fights an election. Each and every political party is free to carve out its own agenda, manifesto, or common minimum program on which it seeks support from the people.

As far as electoral laws are concerned, there is no provision that allows a voter to sue any party for failing to meet promises or fulfil people’s expectations. It is best left to the opposition to raise the issue against the elected people’s representative and raise awareness among the electorate not to vote for such unscrupulous persons in the future.

Ebola menace Ebola is spreading rapidly across the globe and international travel is risky. Much of the risk is due to extensive travel across continents. What do Indian aviation laws say about controlling air-borne diseases?

In order to prevent the spread of airborne diseases, such as Ebola, the National Centre for Disease Control under the Government of India established the Integrated Disease Surveillance Program in 2004. The program is taking proactive steps to ensure that the virus doesn’t enter India.

People travelling by air around the globe, are being made to

go through rigorous medical check-ups and segregated into three categories: low risk, medium risk and high risk.

People with low risks are being advised on general safeguards from the virus, whereas, people with medium and high risks are being detained for further check-ups and are being kept under observation for a period of one month.

Further, there are certain legislations in India, which are quite important but are ignored. One such legislation is The Epidemic Disease Act, 1897. This century-old act has not kept up with the changing times. It prescribes penalty for violating the regulations and also gives legal protection to persons acting under the act.

INDIA LEGAL February 15, 2015

79

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.

HUL PANDEITA IONAL’ ‘ASPIRAT RUM RATH OF TH ON CONUND AU OR TTER 36 CONVERSIDIA TION LE UP THE RESIGNA ‘SEXING’

S W E N N O VIEWS edge JU

TS ST NOT SPOR

ENS ARDS OP FOR AW CLAMOR BOX 39 NDORA’S UP A PA

IS ME

24 ISSUE?

com

newsonline.

son www.view

ITICAL

THE CR

EYE

5 RY 7, 201 FEBRUA

`100

e h t g n i h s u P

ITS D ITS LIM CENSE AN EATIVE LI CR F O E ISSU INES THE BB EXAM DILIP BO

An ENC Publication If the media is leaving you behind, stay ahead of it by picking up yesterday’s Views On News!

VIEWS ON NEWS Don’t miss a single issue of this stimulating, unbiased, entertaining new fortnightly magazine and get special discounts for yourself and your friends

READS METRO d content,

style an s are in 33 Junk thece book fast - pa d

GED UNPLUG t of EDITOR racy accoun

a’s Vinod Mer ht ter journey 30 his rolle coas

12

W

1. He prepared it ….

A: with blood and sweat B: with the sweat of his brow C: by the sweat of his brow D: by the blood of his brow

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

By Mahesh Trivedi

C: Henpecked D: Frightened 8. Plural of series.

A: Series B: Serieses C: Serials D: None of above

2. I am on the wagon.

A: Making progress B: Not drinking alcohol C: With the masses D: Fasting

9. Prefix quasi.

3. Decathlon.

A: 10 events B: 10 finalists C: 10 obstacles D: 10,000-meter race

10. A short witty saying.

4. Lying face up.

11. Humorous.

A: Prone B: Prostrate C: Recumbent D: Supine

A: Factious B: Facetious C: Factitious D: Facile

5. Repulsive.

A. Odious B. Odorous C. Odoriferous D. Odiferous 6. To push the envelope.

A: Bribe B: Resign C: Innovate D: Toil 7. Pussy-whipped.

A: Pampered B: Protected

A: Over B: Almost C: Equal D: Neutral

A: Epigram B: Epithet C: Epitaph D: Epigraph

12. Sound: …… of leaves.

A: Rolling B: Crackling C: Rustling D: Chattering 13. Iatrophobia.

A: Fear of doctors B: Fear of sleep C: Fear of speed D: Fear of crowds 14. DSL. A: Digital Subscriber Line

B: Don’t Sleep Late C: Digital Suitcase Lock D: Don’t Speak Loudly 15. A dragoman?

A: Lazy man B: Guide C: Servant D: Postman 16. Stand out like a ….

A: black eye B: swollen head C: sore thumb D: long nose 17. Which one is correct?

A: The whys and wheres B: The whys and wherefores C: The whens and wheres D: The whos and whats 18. Sermuncle.

A: Eldest uncle B: Small insect C: Short sermon D: No such word 19. In Queer Street.

A: In debt B: Lost in city C: Among strangers D: In red-light district 20. A … of birds.

A: swarm B: flock C: flight D: bunch

ANSWERS

1. by the sweat of his brow 2. Not drinking alcohol 3. 10 events 4. Supine 5. Odious 6. Innovate 7. Henpecked 8. Series 9. Almost 10. Epigram 11. Facetious 12. Rustling 13. Fear of doctors 14 .Digital Subscriber Line 15. Guide 16. sore thumb 17. The whys and wherefores 18. Short sermon 19. In debt 20. flight

Y L D R WO ISE

SCORES

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

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

Above 12—Bravo!

Keep it up! textdoctor2@gmail.com

INDIA LEGAL February 15, 2015

81

PEOPLE / selfie obsession

Photos: UNI

STAR STRUCK Lindsey Vonn of the US takes a selfie with a cow she won as a prize after finishing first in the women’s World Cup Downhill skiing race in Val d'Isere, French Alps

FOLKLORE Garba dancers pose for a selfie at the Navratri festival in Ahmedabad

UNITED WE STAND Pakistani activist and Nobel Peace Prize winner Malala Yousafzai joins in for a selfie with students at a youth symposium and cultural show in Port-of-Spain

DESERT KING Framing a selfie with camels at a farm in Taif, Saudi Arabia

BACKSTAGE BRIEF A model takes a selfie backstage during the New York Fashion Week

Compiled by Kh Manglembi Devi

RNI No. UPENG/2007/25763

Postal Regd. No. UP/GBD-197/2014-16 3ULQWHG RQ HYHU\ PRQWK 3RVWHG DW 6XE 3RVW 2IÀFH 6HFWRU 1RLGD