India legal 15 january 2016

YearEnd Special www.indialegalonline.com www indialegalonline com January 15, 2016

``100

STORIES ST TOR ORIE ORIE IES ES TH THAT AT COUNT C COU OUNT OU NT INVESTIGATION How CBI under former boss

ARUNA SHANBAUG: Justice derailed 40

KEJRIWAL VS JUNG: Stand-off simmers 28

E INNDIA L EGAL

E INNDIA L EGAL Ranjit Sinha became a new employment exchange 24

www.indialegalonline.com i

June 15, 2015

www.indialegalonline.com

February 28, 2015

`100

`100

STORIES THAT COUNT

Who scripted Modi’s Delhi Disaster ?

MODI: Miles to Go

The trumped-up euphoria continues but much remains to be done to boost growth and development 22 ALSO INDIAN RAILWAYS: &$* XQHDUWKV `29,236.77 crore scam 44

PACHAURI CASE: ICC ÀQGV KLP guilty 48

ALS0

NJAC: Stalemate over judges’ appointments persists 10

BUDGET 2015 MAKE IN INDIA Will Modi address the impatient Hurdles in the electorate and bring his growth civil aviation sector 36 agenda on the right track? 26 JAYALALITHAA: Surprising legal challenge

DILIP BOBB profiles the intrepid reporter who exposed FIFA scam 76

ORDINANCE RAJ: But why was SC/ST 66 allowed to lapse? www.indialegalonline.com

EEGAL INNDIAA L EGA

GAL INNDIA L EEGAL

YES! I AM THE SPECTRUM

Food product companies have misled consumers long enough and can no more continue their slew of misinformation. 20

HASHIMPURA: Nobody massacred 42 innocents

34

66A: Off with its head!

10

JAT RESERVATIONS: Supreme Court strikes again

16

www.indialegalonline.com

April 15, 2015

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

The hee ttrumped-up rumpe rrump umppeed-up uupp euphoria euph eup eeu eupho uuph pho horia riia ia continues coontin ont ntin ntinu nues uess but butt much m muuch ch re eem maaiins ns to to be be ddone onne ne to to boost bboo oooost ggr oost rowth owt w wthh an aand nd nd ddevelopment eveloop ev evelo opm meent ent en nt 222 remains growth CENSORSHIP: Thumbs up for AmbedkarPeriyar Study Group 36

ALS0

MISSING COMPANIES: Will the law catch up?54

MASARAT RELEASE: Fueling separatism? 40

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

40

DIA L EGAL E INNDIA

E INNDIA L EGAL Royal tussles over King Solomon’s mines: Sree Padmanabha, Mysore treasure troves

60

Shantanu Guha Ray interviews Malegaon prosecutor Rohini Salian

34

i www.indialegalonline.com

August 15, 2015

`100

YAKUB

SHOULD WE SHOOT THE MESSENGERS? ALSO What price witness protection?

Ajith Pillai talks to lawyers, judges, cops Ramesh Menon tells you how to make an online will and rest in peace 63

DEFAMATION LAW: Strange bedfellows 28

16

`100

STORIES THAT COUNT

NJAC

Your Lordships, We beg b to differ

The Gathering Storm

Why corporates lap up well-connected 5 UHWLUHG ,$6 RIÀFHUV 50

www.indialegalonline.com

November 15, 2015

CENSORSHIP

ALS0

SPECIAL: Kashmir’s teleterrorism 44

42

`100

STORIES THAT COUNT

MP Governor: Raj Bhawan’s lure 54

VYAPAM HORROR: 32 dead and still counting 50

RAMESH MENON

www.indialegalonline.com

Ironically, even as the world cheers Indian social progress, the government appears regressing towards repression

JUSTICE DHINGRA: Man behind Vadra land probe 46

Liberated sex workers turn into paralegal volunteers

E INNDIA L EGAL 36

March 31, 2015

Pachauri’s ignoble exit from TERI 38

`100

Dangerous MEALS

EXCLUSIVE

What constitutes a corporate favor?

The case of the sacked HT staffer

28

June 30, 2015

`100

Exclusive details and analysis of Exclus hot judicial controversy 12 India’s hottest

Justice Jagdish S Khehar

Inderjit Badhwar Dilip Bobb Kalyani Shankar Ajith Pillai Ramesh Menon Shobha John Dinesh Sharma Abhay Vaidya Vipin Pubby RK Misra

Justice Kurian Joseph

Special column IURP -XVWLFH

NARENDRA CHAPALGAONKER

20

Justice Adarsh K Goel

Justice J Chelameswar

Justice Madan B Lokur

VIPIN PUBBY: 6WDWHV RIIHU largesse to ODZ RIÀFHUV

30

SHOBHA JOHN: New guidelines to make Á\LQJ VDIHU

KALYANI SHANKAR: Santhara—religion YHUVXV ODZ RI the land 48

PAPIA SAMAJDAR: 8QVDIH GLVSRVDO RI bio-medical waste 70

58

MEENA MENON: Will Maharashtra continue with dance bar ban? 38

WHO ISLKAFRAID OF THE EMERGENCY? Advani’s fears spark off a national debate

E INNDIA L EGAL Former law minister HR Bhardwaj, Seshadri Chari, Justice Mukul Mudgal, Rajeev Dhawan speak out

28

www.indialegalonline.com

July 15, 2015

`100

THE NAME

BOMBER

It is evident that Delhi does not have a solid case against Modi, who has certainly shaken up the political establishment, forcing everyone to duck for cover 22

Lalit Modi

NJAC: Festering controversy 10

ONE RANK ONE PENSION: Soldier writes to the chief justice of India 48

INDIRA JAISING unplugged: 40

BANK LIQUIDITY: Where’s the money honey?

44

NEW TARGETS: Successful Dalits 57

Special Issue

LETTER FROM THE EDITOR

INDERJIT BADHWAR

A FRESH AVATAR

W

RITING the year-end edit is often a lonely and onerous task. This is largely because, through the year, magazines have their ups and downs in terms of the quality, merit, credibility, display and power of the stories they run. So, finding the best from among them to feature in a special edition requires exceptional diligence and institutional memory. And the editors of India Legal have been up to their necks in the process of choosing, and dropping, and adding.

The final result in on the cover. Actually the task was both easy as well as excruciatingly difficult. Easy, because most of the stories from which we chose had quality and focus. Difficult, because notwithstanding the editorial merit of the story under consideration, we were faced with the task of determining how accurately the article reflected India Legal’s USP. There was little doubt in any reader’s mind as soon as our magazine hit the stands with its first edition, that the market was witnessing a genuinely new product that stood out of the clutter. The name itself suggested a whiff of change. The moment you picked it up and began leafing through it, the first impression you received was that contrary to what it sounded like, India legal was not a technical legal manual or a newsstand version of Manupatra. It was, in fact, a hard core newsy, current affairs magazine containing investigations and controversies with a solid legal angle that would be of special interest not only to lawyers and judges—the core audience—but also to general readers, MPs, politicians, students, diplomats and think tanks trying to make sense of how the rule of law, natural justice, judicial precedents, case histories, judicial activism and accountability

4

January 15, 2016

impacts the day-to-day functioning of modern India, the creature of a long-drawn out, hotly-debated constitutional exercise.

Obviously, we focused, keeping in mind the need to uphold the highest standards of writing on the courts, the Supreme Court and activities of bar associations and councils, ensuring that we missed no developments. Covering stories involving judicial accountability remained a primary focus. Most of our stories are written by big name journalists from India and abroad.

Our special task is to brief them in detail so that they do not miss out on special legal angles or the fundamental legal base of the stories we commission.

of

In case they fail to meet this requirement, India Legal’s editorial board approaches some of the nation’s senior most lawyers and retired judges to provide us guidance. It is small wonder then—thanks to the magazine’s growing credibility with this difficult-toplease but powerful community—that we were able to carry interviews with the Union Law Minister and the Chief Justice of India on the cover of the same issue of the magazine.

A

s we have spread our wings and our reach with the support of a portal run by a special team and are bringing more and more legal stories to our sister concern—APN-TV—and are planning to add an additional channel—India Legal TV—to our group, we have expanded our reporting and editorial staff to include law students and trained lawyers who will report not only from the capital but from every major city and region in India.

Ultimately, our magazine is not for, of, and by lawyers—even though this community is now increasingly involved in its content creation. It is about justice, exposing corruption and charlatans, taking a critical stance on legal matters of national and constitutional importance. It was in this spirit that we ran a lead editorial on the Supreme Court’s prolix ruling on the National Judicial Appointments Commission, titled “Your Lordships, We Beg To Differ.”

Actually, if you look at

India Legal is about justice, exposing corruption and charlatans, taking a critical stance on legal matters of national and constitutional importance. any major story that has caught national attention in the recent past or currently, it stems either from the courts and judiciary, or contains a major legal angle.

Let’s name a few—the NJAC debate, the Nirbhaya story which led to the passing of the Juvenile Justice Act, the CBI’s raid on Delhi Chief Minister Arvind Kejriwal’s office and the attacks and counter attacks on the corruption within the DDCA, stringent rape laws, the visitors’ list in the former CBI chief ’s diary, the still-continuing attempts to implicate Prime Minister Modi and his number two Amit Shah in the 2002 Gujarat riots, the brouhaha over Netaji Bose’s files, Yakub Memon’s hanging and the recrudescence of the death penalty debate, the Supreme Court’s activism as well as initial steps taken by the Kejriwal government to check diesel pollution levels and the Nestle noodles debate.

These are the stories the nation is talking about.

These are the stories we covered. Reading them again they are definitely not old wine in new bottles. They are new wines in new bottles. Let me cite an example from this issue. Veteran Kalyani Shankar has penned an analysis of why it is always premature to write off the Nehru-Gandhi dynasty no matter how politically down and out it may be. Where we value-add to this story is a box item on scams and intrigues that Congress’ First Family and the party have weathered. Here are some of them: In 1966 Ram Manohar Lohia charged in Parliament that Indira Gandhi had accepted an expensive mink coat from shipping magnate Dharam Teja. In 1971, scandal rocked Mrs Gandhi again when it was alleged that the SBI’s chief cashier was instructed to hand over `60 lakhs to a “messenger” of Mrs Gandhi, Sorab Nagarwala. There were other scams—Maruti favouritism (1977), Bofors (1987), 2G Spectrum (2008), Vadra-DLF controversy (2012), chopper controversy (2013)… and the ongoing National Herald case.

India Legal has been on top of all the recent newsbreaks covering them from the very special perspective of a new avatar in journalism.

editor@indialegalonline.com INDIA LEGAL January 15, 2016

5

JANUARY 15, 2016

VOLUME. IX

ISSUE. 09

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designers Ram Lagan, Lalit Khitoliya Photographer Anil Shakya Photo Researcher/News Coordinator Kh Manglembi Devi Production Pawan Kumar Head Convergence Initiatives Prasoon Parijat Convergence Manager Mohul Ghosh Technical Executive (Social Media) Sonu Kumar Sharma Technical Executive Anubhav Tyagi

SUPREME COURT

Choking Capital

Delhi’s pollution levels are alarming. But the government’s knee-jerk measures to combat it are bound to fail in the absence of a strong public transport network and strict implementation of existing green laws. RAMESH MENON

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

All correspondence should be addressed to E N Communications Pvt Ltd .

OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, 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

January 15, 2016

14

Sunset of a Dynasty?

20

Commentators are more than ready to write off the Congress and, by extension, the Gandhi family, given their diminishing numbers in the Lok Sabha, but that may not hold true today. KALYANI SHANKAR INVESTIGATION

No Retribution for 2002

28

The clean chits to Narendra Modi and Amit Shah by the courts in the Gujarat riot and encounter killing cases lend renewed strength to arguments made by both the BJP leaders. RK MISRA HISTORY

The Netaji Dilemma

32

Conspiracy theories aside, the center’s justification of not declassifying the Netaji files as it would hurt India’s relationship with foreign powers is only an excuse. SUJIT BHAR ACTS & BILLS

Juvenile Justice?

36

It gathered momentum too late in the day but was passed by the Rajya Sabha. A quick overview of the debate surrounding the new juvenile justice law. TEAM INDIA LEGAL

THE BEST OF INDIA LEGAL 2015

Neither Free, nor Fair

40

The apex court struck down an amendment validating the National Judicial Appointments Commission Act passed by parliament. A letter from the Editor reads between the lines of this judgment. — November 15

Stuck in a Quandary

45

Even though the courts are massively overburdened, the judiciary is being increasingly called upon to rule on matters which defy precedent and may not find parallels in existing case laws. A letter from the Editor lists its various dilemmas. — June 30

David and Goliath

It’s been a clash of egos and authority as Delhi CM Arvind Kejriwal and L-G Najeeb Jung slug it out. At the heart of the ugly stand-off is the question: Who rules Delhi?

DILIP BOBB — June 15

It’s My Life

48

Yakub Memon’s sentence sparks debate on whether intelligence agencies should be lenient on those surrendering to them. Similar is the case of witnesses who come forward to report crimes and end up paying with their lives.

AJITH PILLAI — August 15

Instant Health Debacle

54

For long India’s staple snack, Nestle’s Maggi Noodles faces ouster as high doses of lead and MSG have been discovered in state after state. DINESH C SHARMA — June 30

64 Faith Matters

86

A landmark survey has shown that Muslim women want the triple talaq to be banned. The community is indeed being swept by winds of change.

AJITH PILLAI — September 15

The Jain custom of Santhara—voluntary end to one’s life through fasting—brings up the question of whether or not religion is more important than the law of the land.

KALYANI SHANKAR — November 15

Money down the Drain

“We tackle complex issues”

70

The Punjab and Haryana High Court has on its payrolls a large battery of law officers, often recruited on questionable grounds.

VIPIN PUBBY — November 15

Silver Lining at Last Trust Deficit

60

74

Sex workers in parts of Karnataka and Telangana feel empowered, thanks to their new role as paralegal workers.

RAMESH MENON — November 15

90

Judge Ronny Abraham, president, ICJ, says that India is finding the best ways to handle increasing commercial disputes.

NEETA KOLHATKAR — December 31

New Lease of Life 92 By allowing a 14-year-old girl to abort her fetus in the 24th week despite the MTP Act prohibiting it, the apex court has shown its humane side. SHOBHA JOHN — August 31

Home Truths 80 from the Church Sexual misdemeanors by the clergy are nothing new. But for the first time, a Kerala nun is paid `12 lakh to remain mum about her sexual abuse. TK DEVASIA — May 15

Whose Right is Paramount?

96

In the debate about child pornography, the issue of amateur sex videos preying on innocent girls has been lost. Why aren’t ISPs being charged for this?

ABHAY VAIDYA — September 15 Cover Design: ANTHONY LAWRENCE INDIA LEGAL January 15, 2016

7

Special Issue

QUOTE-UNQUOTE

“There are three Ds through which parliament functions.

These are debate, dissent and decision.”

—President Pranab Mukherjee, while delivering the keynote address in memory of Jawaharlal Nehru, at Calcutta University Centenary Hall, in Kolkata

“If Jaitleyji were let off without investigations on basis of his press denial, then shud all coal n 2G accused also be similarly let off?”

—Arvind Kejriwal, Delhi Chief Minister, hitting out at Finance Minister Arun Jaitley for financial irregularities in the DDCA, on Twitter

“My daughter’s name was Jyoti Singh… I am taking her name today and so should all of you… I feel angry, not ashamed.”

—Asha Singh, Mother of 23-yearold paramedical student, gangraped on December 16, 2012, in The Indian Express

“You never learn acting till you die...it’s not multiples and formulae.”

—Shah Rukh Khan, replying to a follower as to when will Khan learn acting, on Twitter

8

January 15, 2016

“Why am I not in politics?

Because I think it would have killed me in a couple of years... you should cultivate a sense of insensitivity to be in politics.”

—Azim Premji, IT czar, at the Indian Institute of ManagementBangalore’s first global alumni conclave and leadership summit

“The current Juvenile Justice Act never envisaged that the society will have to deal with such a brutal rapist one day. This case has beaten all.”

—Kiran Bedi, social activist and BJP leader, on Twitter

“The ministry of defense is a bad organization.

Accountability within the ministry is zero…”

—General VP Malik, former chief of Army Staff, on whether Indian defense forces are technologically equipped to fight a war, in The Times of India

Aruna

VERDICT Justice has nothing to do with what goes on in the court room; justice is what comes out of the court room.

Clarence Darrow

INDIA LEGAL January 15, 2016

9

Special Issue

SUPREME COURT

State can’t appoint priests O

bserving that the state had no business to interfere with the appointment of priests in temples, the Apex Court upheld a plea by Adi Saiva Sivachariyagal Nala Sangam, which objected to an order of the Tamil Nadu government. The state government had issued an order in 2006 that it would decide on the appointment of priests to temples in the state.

The Apex Court observed that priests could be appointed according to rules mandated by the scriptures and that the tradition was acceptable so long as it did not violate the principle of non-

RBI must share probe report T he Reserve Bank of India (RBI) must put in public domain all inspection reports on “unethical business practices” adopted by public and private sector banks, the Apex Court ruled. It took the central bank to task for not sharing such details despite information demanded through RTI.

10

January 15, 2016

The Court observed that it was obligatory on the part of RBI to let the people know about such corrupt activities and the bank must initiate tough action against such financial institutions.

The RBI had approached the Court against directions from the Central Information Commission. The Commission had several times ordered RBI to furnish such information under RTI. RBI claimed that doing so would go against the “fiduciary relationship” it had with the banks and harm India’s economic interests. But the Court did not buy the argument and said that the bank was bound by Section 2(f) of the RTI Act.

discrimination based on caste, creed or color, enshrined in the constitution.

The Court made some significant observations on Hinduism in the process. It said that the foundations of Hinduism lay in “the collective wisdom and inspiration of centuries”. Hinduism doesn’t have a single founder, a single scripture or a single set of teachings, the Court noted.

It further held that there is no particular belief or doctrine that guides Hinduism as all forms of beliefs are included in its ambit, without a direction to follow or reject any one belief.

Verdict on Sanskriti School reserved T he Apex Court refused to immediately stay the Delhi High Court’s recent verdict that put an end to the practice of reserving 60 per cent seats for children of Group A government officers by the Sanskriti School in New Delhi. Observing that it needed to hear the matter before arriving at a conclusion, the Apex Court fixed the next hearing on January 4, 2016.

Arguing for the school, Attorney General Mukul Rohatgi wanted the Apex Court to stay the High Court order on the ground that it was wrong on the part of the Court to take suo motu cognizance of the matter and issue a

judgment without hearing arguments from the other side. He argued that the High Court’s judgment would have a bearing on the character of the school set up by the center and considered a top school in Delhi.

Senior advocate KK Venugopal also pleaded with the Apex Court to allow the admission process for the 2016-17 academic session.

of

Directive on Waqf Tribunals T

aking a serious note of the laid-back attitude of state governments in forming three-member Waqf tribunals to settle Waqf property cases, the Apex Court asked them to notify the setting up of such tribunals within four months from December 15, 2015.

The amended Waqf Act, passed in 2013, had mandated the state governments to set up the threemember tribunals to adjudicate such cases. The Court rebuked the state governments for their lax attitude.

The Apex Court made it clear that only the threemember tribunal could decide on cases related to Waqf property. However, till the time three-member tribunals are formed by states, the existing tribunals could adjudicate cases, it held.

The reference came in connection with a September order of the Bombay High Court, wherein

it had turned down an order of a single-member tribunal on the ground that it had no authority to decide Waqf property cases after the changed Waqf Act came into being. It had instead directed that the case be tried by a civil court. The Apex Court ruled that the High Court had made an error of judgment in the case and ruled that the one-member tribunal will continue to hold sway till a three-member tribunal was formed.

UP Lokayukta’s appointment on hold

A rap on states for neglecting NFSA

I

T

n an urgent hearing, the Supreme Court put on hold the swearing-in of Justice Virendra Singh as Lokayukta of Uttar Pradesh after a PIL raised objections to his appointment. The PIL apprised the Court that the retired judge of the Allahabad High Court was part of the list of five candidates said to have been okayed by the selection panel for the post despite objections from Allahabad High Court Chief Justice DY Chandrachud. The Apex Court itself had appointed Singh as the candidate for the post on December 16 after the UP government dragged its feet on the issue despite directions from the Court.

Singh was to be sworn-in on December 20.

Justice Chandrachud himself had written a letter to UP Governor Ram Naik, expressing his displeasure over Akhilesh Yadav going back on his word.

The Court decided to take up the matter on January 4, 2016.

he states of Uttar Pradesh, Madhya Pradesh, Maharashtra, Odisha, Jharkhand, Karnataka, Andhra Pradesh and Telangana were recently asked by the Supreme Court to notify steps taken to provide free foodgrains to people hit by drought. The states are supposed to distribute foodgrains under the National Food Security Act (NFSA) in times of distress. The Apex Court also asked the center and the Ministry of Agriculture and Farmers Welfare to respond on the issue.

A PIL filed by AAP leader Yogendra Yadav’s Swaraj Abhiyan had alleged that the states were sloppy and careless in implementing NFSA. This was nothing but an infringement of the rights of people under Article 21 and 14 of the constitution, it pointed out. Highlighting that the people were denied even two square meals a day, the PIL pleaded that it was the solemn duty of the states to offer relief to the people during tough times.

The petition wanted the Court to direct the concerned states to provide satisfactory compensation for crop loss due to drought and subsidy for cattle fodder, among other demands.

— Compiled by Prabir Biswas; Illustrations: UdayShankar INDIA LEGAL January 15, 2016

11

Special Issue

COURTS

Get all clearances for cricket: HC fter being singed by allegations of irregularities, the Delhi and District Cricket Association (DDCA) had to brace for more trouble. The Delhi High Court restricted it from holding ICC T-20 World Cup games in the capital next year unless it gets all necessary go-aheads from the concerned government departments.

So far, the Court had been granting “interim temporary licence” to DDCA for holding matches or other events, as was done in the case of the India-South Africa Test match from December 3 to 7, 2015.

This was after DDCA’s fervent pleadings.

The association has been having serious issues with municipal corporations, tax department and the Delhi Urban Art Commission (DUAC). The Court had in its last order asked DDCA to get all mandatory clearances by March 31, 2016.

The Court’s order came after DDCA approached it for yet another provisional certificate from DUAC and North MCD so that matches slotted for Delhi could be held in March next year.

A

Azam Khan under scanner land transfer, allegedly at the behest of Azam Khan, a cabinet minister in the UP government, came under the scrutiny of the Allahabad High Court.

A PIL was filed by social activist Nutan Thakur, who claimed that Khan had transferred 1,500 sq yards of government land and building of Maulana Jauhar Ali Shodh Sansthan, Rampur, to Maulana Jauhar Ali Trust, owned by him. This, he did at an abysmally low lease.

Thakur wanted the transfer to be annulled and legal action taken against officials connected with the deal.

According to her, all rules and regulations were broken to seal the deal and transparency was thrown out of the window.

The Court asked the state government to respond to the PIL within two weeks. The matter will again be taken up on January 20, 2016.

A

No law on cow slaughter raming a law on banning cow slaughter was not within the purview of the judiciary and it was for the legislature to decide, observed the Delhi High Court.

While turning down a petition filed by an NGO, Sadh Foundation,

F

that urged the Court to make a law in this regard, the High Court observed that the separation of powers between the judiciary and the legislature restricted its intervention. It also referred to the Supreme Court’s decision on the matter. The top court had held that it could not issue a verdict on cow slaughter ban as the prerogative lay with the government.

Temporary relief for Tuki govt he move by the opposition and dissident MLAs to dislodge the Congress government led by Arunachal Pradesh Chief Minister Nabam Tuki proved unsuccessful after an order of the Gauhati High Court.

The Court on December 17 stayed all proceedings related to the crisis: advancing of the assembly session

by Governor JP Rajkhowa; holding of makeshift assembly sessions by Congress dissidents and BJP MLAs on the orders of the governor; impeachment of Assembly Speaker Nebam Rebia; voting out the Tuki government by the makeshift assembly and appointment of Kalikho Pul as the new speaker. The interim order will prevail till February 1, 2016.

The Court’s order came after a petition was filed by Rebia. It took serious objections to Rajkhowa’s conduct in the entire matter, especially his decision to advance the assembly session. It observed that the governor had violated constitutional norms by his unilateral decision.

Later, a petition filed by the deputy speaker of the state assembly, TN Thongdok, in the Gauhati High Court on December 21, pleaded for annulling its December 17 verdict.

However, Justice BK Sarma’s court decided to hear the petition on January 4, 2016.

T

— Compiled by Prabir Biswas; Illustrations: UdayShankar

12

January 15, 2016

of

NATIONAL BRIEFS

Row over quota remarks

Firing at Karkardooma court complex OUR armed juveniles entered the premises of Karkardooma Court in Delhi recently and fired randomly inside a courtroom. The incident occurred when a high-risk undertrial, Irfan, was being brought into the courtroom for hearing. A head constable, Ram Kunwar Meena, escorting Irfan was killed in the firing. The metropolitan magistrate who was to hear the case barely escaped a bullet. Irfan, too, was critically injured.

All the four assailants were later nabbed by lawyers, litigants and police.

F

Rivalry between two gangs is said to be the trigger behind the attacks. The attackers, suspected to be contract killers, wanted to kill Irfan. A case of murder and attempt to murder was registered.

Judicial accountability HE government indicated in the Lok Sabha that a fresh bill could be brought in to change the present system of probing complaints of misbehavior and incapacity against judges of the Supreme Court and high courts, as the Judicial Standards and Accountability Bill has lapsed, Hindustan Times reports.

“The Judicial Standards and Accountability Bill has lapsed. We are working on it,” Law Minister DV Sadananda said in the Lok

T

Bill to legalize gay sex thwarted HE Lok Sabha shot down an effort by Congress MP Shashi Tharoor to legalize gay sex through a private member's bill at the introduction stage itself, Livemint reports.

The MPs prevented any discussion aimed at dropping Section 377 from the Indian Penal Code (IPC) of 1860 that criminalizes homosexuality. The ruling BJP members scored a victory as the introduction of the bill was disallowed by a majority of 71, against 24 voting for it. Tharoor tweeted: “Surprising to see such intolerance.”

Criticizing the attitude of MPs, Bangalore-based NGO Sangama, working for LGBT communities, said that no responsible parliament should ignore the harassment and persecution of sexual minorities on account of the archaic Section 377.

T

S many as 58 members of the Rajya Sabha have petitioned the Vice-President and Rajya Sabha Chairman Mohammad Hamid Ansari to initiate impeachment proceedings against Justice J B Pardiwala of the Gujarat High Court for his “unconstitutional” remarks against reservations in a case pertaining to Patidar leader Hardik Patel, reports NDTV. The lawmakers alleged that while delivering the judgment on a special criminal application against Hardik Patel, Justice Pardiwala ruled that two things have “destroyed this country or rather, (have) not allowed this country to progress in the right direction...(I) reservation and (II) corruption”.

However, within a few hours of the move by MPs, the state government moved a petition in the Gujarat High Court requesting deletion of the controversial comments, and in response, Pardiwala expunged the entire offending paragraph from the judgment.

A

Sabha, in an indication that the proposed legislation could be brought afresh. He said any decision will be taken “after taking suggestions from the stakeholders.”

Gowda was responding to questions on the judiciary, including pending cases, allegations of corruption against judges and lack of transparency in their appointment.

Vikramjit Sen, the next Lokayukta ustice Vikramjit Sen (left) is likely to become the new Lokayukta in Karnataka.

The state government has already selected him for the post. A former judge of the Karnataka High Court, Sen will retire from the Supreme Court on December 30, 2015.

Earlier, Lokayukta Justice Y

J

Bhaskar Rao had to quit office after his son, Ashwin Rao, was arrested for running an extortion racket from the Lokayukta office.

Incidentally and for reasons unknown, Sen’s candidature was also propped up by Catholic connections in Karnataka, according to sources.

— Compiled by Anuj Raina INDIA LEGAL January 15, 2016

13

Special Issue

SUPREME COURT/ Tackling Delhi’s Pollution

GASSED! While the apex court very recently cracked down on diesel pollution, the government has proposed a new formula to reduce Delhi’s traffic burden. But that may end up as a cosmetic move. What’s needed is to improve public transport and enforce existing laws

By Ramesh Menon

14

January 15, 2016

T

HE air pollution saga in Delhi gets murkier with each passing day as authorities helplessly grapple with it. It has been unable to get a fix on the dangerous reality that has made the capital the most polluted city of the world. It has put the health of its population in severe danger.However, the story of Delhi being a heavily polluted city is not new.

of

Dangerous Breath Delhi Air Quality Score:

Delhi: 201

Beijing: 160

Shanghai: 134

London: Paris: 86 65

Washington DC: 42

Rating of Delhi: Very unhealthy Health Effects in Delhi: Significant aggravation of heart or lung disease and premature mortality in persons with cardiopulmonary disease and the elderly. Significant increase of respiratory problems in the general population.

Cautionary Statement for Delhi: People with heart or lung disease, older adults and children should avoid physical activity outdoors. Everyone else should reduce prolonged or heavy exertion.

entering Delhi and has taken 10-year-old commercial vehicles running on diesel off the city’s roads. The court ordered immediate paving of roadsides along with vacuum cleaning of roads as dust has emerged as a major health hazard. Municipal authorities have been asked to curb burning of waste.

Incidentally, diesel vehicles contribute hugely to particulate matter and nitrogen oxides that are rising in Delhi. These emissions were branded as human carcinogens by the International Agency for Research on Cancer of the WHO for their strong links Photos: Anil Shakya

Twenty-two years ago, I had done an exhaustive piece in India Today on precisely this topic. Today, the situation is worse and more serious. For more than two decades, Delhi has seen more than a thousand new vehicles hogging its streets every single day! It is now clear that the breaking point has been reached.

HISTORIC JUDGMENT As no government really cracked down on pollution or strictly enforced norms, the Supreme Court this fortnight in a historic judgment banned the sale of high-end diesel luxury cars and SUVs with an engine capacity of 2,000 cc or more for a period of three months. It also made it mandatory for taxis to shift to CNG, slapped a huge tax on trucks INDIA LEGAL January 15, 2016

15

Special Issue

SUPREME COURT/ Tackling Delhi’s Pollution

Burning of biomass and garbage in winter has led to rising pollution.

with lung cancer.

A draft report of the Indian Institute of Technology, Kanpur, has shown that diesel vehicles are the major source of particulate matter emissions in the transport sector. In areas like upmarket Vasant Kunj, diesel vehicles were found to contribute 90 percent of particulate matter pollution.

The court extended the proposed ban to the National Capital Region as it feared that Delhites would go beyond the borders to purchase diesel cars. All city cabs, including appbased services such as Uber and Ola, will now have to move to CNG. TARGETING THE RICH Diesel was always subsidized as it was crucial to the transport sector. Every little increase in the price of diesel would make those of essential commodities sky-rocket. But, ironically, it helped the rich operate expensive dieselrun SUVs and luxury cars. Today, 30 percent of vehicles in Delhi run on diesel. The court pertinently asked why the rich were being allowed to pollute the capital and said that they can’t go around in luxury sedans and

16

January 15, 2016

SUVs polluting the environment as people’s life were at stake.

Senior advocate Harish Salve who was the amicus curiae said that the blame must lie with diesel vehicles as one diesel car is equal to eight petrol cars as far as pollution is concerned. Senior advocate Dushyant Dave who appeared for automobile manufacturers argued that diesel vehicles formed only a small part of the overall number of vehicles and they should not be targeted as impractical curbs would affect thousands of workers and huge investments. He said even Beijing had not banned diesel vehicles. But the bench of Chief Justice TS Thakur and Justices AK Sikri and R Banumathi disagreed saying: “Let us stop it for three months. The worst polluted city in the world should take drastic measures.”

Earlier in October this year, the court had ordered that light duty vehicles would have to pay Rs 700 and three-axle vehicles would pay Rs 1,300 to enter Delhi as an “Environment Compensation Charge”. The court had taken note of a study by the Centre for Science and Environment (CSE) which

of

showed that about 23 percent of commercial vehicles and 40-60 percent of heavy trucks entering Delhi were actually using it as a transit point and were going to other places.

Chief Justice Thakur said that the court might increase the charge by 100 percent for commercial vehicles travelling through Delhi. It is estimated that 80,000 trucks crossing Delhi everyday are adding to the problem.

ODD POLICY? Meanwhile, the Delhi government had requested the Supreme Court to give its stamp of approval to the formula to allow only odd number and even number cars on certain days, saying that it would embolden it if it did. The court said that it was up to the Delhi government to implement it if it thought it was the way forward. It is bound to

World’s Most Polluted Indian cities have the dubious distinction of leading the world insofar as fine particulate matter pollution is concerned Rank 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

City and country Delhi, India Patna, India Gwalior, India Raipur, India Karachi, Pakistan Peshawar, Pakistan Rawalpindi, Pakistan Khorramabad, Iran Ahmedabad, India Lucknow, India Firozabad, India Doha, Qatar Kanpur, India Amritsar, India Ludhiana, India Igdir, Turkey Narayanganj, Bangladesh Allahabad, India Agra, India Khanna, India

PM2.5 153 149 144 134 117 111 107 102 100 96 96 93 93 92 91 90 89 88 88 88

lead to a lot of chaos as there are nearly 75 lakh vehicles and it would be impossible to monitor them. Delhi does not have enough traffic policemen to manage the present traffic and one can imagine what can happen when the formula kicks into force for a trial period of 15 days from January 1, 2016.

Public transport in the capital is very inadequate and commuters and office-goers will find it a serious problem on all the days proposed. One of the reasons why there are so many cars on the road is that the public transport system has not evolved the way it has in cities like Mumbai. Clearly, stop-gap superficial methods to tackle air pollution are not going to help.

Sunita Narain, director-general of CSE told India Legal that the landmark decision of the Supreme Court to stop the registration of luxury diesel cars and SUVs in NCR, bar entry of pre-Euro III trucks into Delhi, double the environment compensation charge on all trucks entering Delhi and mandate all taxis in NCR to convert to CNG was achieved after fighting for over 12 years.

“These steps are expected to catalyze longer term solutions to clean up the air. This winter, Delhi has already experienced a rapid increase in pollution—PM2.5 levels have remained three to four times the standard

Diesel vehicles contribute hugely to particulate matter and nitrogen oxides pollution. WHO says these are carcinogenic as they have a strong link with lung cancer.

Source: World Health Organization Anil Shakya

INDIA LEGAL January 15, 2016

17

Special Issue

SUPREME COURT/ Tackling Delhi’s Pollution

UNI

pollutants than petrol cars.”

APEX COURT’S CLEANUP ACT The Supreme Court on December 17 banned registration of all diesel vehicles with engine capacity of 2,000cc and more in the entire National Capital Region till March 31 Trucks older than 10 years were banned from plying in Delhi Trucks were banned from transiting through Delhi to other places The environment compensation charge on trucks that do ply in the city was doubled from `700 to `1,400 for light duty vehicles and from `1,300 to `2,600 for three-axle vehicles This is payable in addition to toll tax All app-based services including Uber and Ola must now completely switch to CNG from March 1

The court on the odd-even rule On the issue of the Delhi government's “odd-even” plan for alternately allowing private vehicles to ply, the bench said, “We cannot say anything on it. We are not too sure that this is the only way. This is one of the measures. It is for you (Delhi government ) to implement” The CJI observed that “he won't hesitate” to car pool with “brother judges”

and on smoggy days, the level can go up to six to seven times. The court had examined evidences of health impacts which indicate that the lung of every third child is impaired,” she said.

Anumita Roychowdhury, Centre for Science and Environment’s executive director, said: “Dieselization adds to the burden of particulate matter, nitrogen oxides, and ozone which are the key pollutants. The current emissions standards in India legally allow diesel cars to emit more particulate matter and nitrogen oxides that are greater

18

January 15, 2016

FACTORS FOR POLLUTION Another reason for rising pollution levels is that a lot of biomass and garbage is burnt in winter in Delhi and NCR. People often light fires to keep warm, using whatever they can gather. Little has been done to stop this.

Another factor is dust, which piles up on the roadsides and is often gathered and dumped on the divider, from where it again falls on to the road when the wind blows. Or it is just left on the road in heaps for it to spread again. There seems to be no organized timebound system to clear it.

Then, there are frequent power cuts in the capital, leading people to use diesel generators which spew poisonous smoke. No one is talking of all these pollutants in this debate.

Then, there is adulterated fuel which again causes a lot of harm and there are hardly any checks on it. There have also been car-free days where commuters were encouraged to cycle. But there are no cycle tracks and cycling in the present chaotic traffic that cares little for etiquette or even traffic rules, is dangerous.

Clearly, knee-jerk reactions, like allowing cars only with certain numbers on a certain day, is not the answer as it is just not going to work. Improving public transport, fine-tuning the traffic management system by removing encroachments and stopping illegal parking and heavily fining polluting vehicles might be a more practical solution. IL

of

INTERNATIONAL BRIEFS

Brazil lifts WhatsApp suspension A

Brazilian judge ordered the lifting of a 48-hour suspension of the services of Facebook Inc's WhatsApp phone-messaging application, overturning an order from a lower court.

The ban lasted about 12 hours until an appeals court judge overturned it, said the BBC. The interruption of WhatsApp’s text message and internet telephone

Japanese scribe gets off the hook

service caused outrage in Latin America’s largest country, where the company estimates it has 100 million personal users, and led to angry exchanges on the floor of the Congress. WhatsApp is installed on 93 percent of Android devices in Brazil, making it the most installed app in the country, according to the TechCrunch website.

Denmark decides to seize migrants’ assets for maintenance

A

Japanese journalist has been found not guilty of defaming South Korea's President Park Geun-hye, Voice of America reports.

Writing for Japan's Sankei Shimbun, Tatsuya Kato repeated rumors about Park’s whereabouts on the day of the Sewol ferry disaster in April 2014 that killed more than 300 people—mostly teenagers on a school trip. Kato maintained that the report was in the public interest.

Critics had said the decision to prosecute infringed on free speech.

Park’s government has faced a huge public backlash for its handling of the rescue operation.

A

Danish government proposal to seize assets of asylum-seekers to make them pay for their maintenance has drawn sharp criticism in international media. The Washington Post described the plan as “extreme” and website Vox called it

Japanese couples to share surnames

T

Tatsuya Kato

he Japanese Supreme Court has upheld a law that married couples must have the same surname, in a blow to women’s rights activists, reports The Atlantic.

Campaigners have said the law is discriminatory as most couples end up using the husband’s surname. However, the court said the law did not violate the constitution. It did, however, deem a separate law that stops women remarrying within six months of a divorce unconstitutional.

“cruel”.Denmark expects to receive around 20,000 asylum seekers this year, compared to 15,000 last year. It further expects about 25,000 next year.

Integration minister Inger Stoejberg said the police should be allowed to seize valuables to make them pay for housing, healthcare and education. She likened migrants to jobless Danes who must sell their assets above a certain level to claim benefits. Both the ruling centre-right Venstre party and the right-wing, anti-immigration Danish People’s Party back the bill, meaning it should pass by February. Stoejberg said wedding rings, watches or items “with a sentimental value” should not be taken. The law will only apply to cash worth more than 3,000 kroners ($436) and “tangible assets of a considerable value”.

Turkey ill-treating refugees: Amnesty

A

mnesty International says Turkey has rounded up scores of refugees and asylum-seekers since September and transported them to detention centers where some have been mistreated or forcibly returned to Syria and Iraq, reports International Business Times.

Turkey hosts the world’s largest number of refugees, including 2.2 million Syrians. It has denied that Syrians are being forced back, and says that all

returnees are interviewed by the UN staff.

This month, Turkey and the EU reached an agreement aimed to curb the flow of migrants to Europe.

It includes an EU pledge to provide 3 billion euros ($3.3 billion) to help improve the conditions of refugees in Turkey.

— Compiled by Anuj Raina INDIA LEGAL January 15, 2016

19

Special Issue

POLITICS/ Nehru-Gandhi Family

Dynasty’s Roulette With the Congress ruling in just nine states, it would seem that the might of the Gandhi family is over.

But in politics, one can never write off anyone and the family could well come back

By Kalyani Shankar

I

S India’s powerful Nehru-Gandhi dynasty on the decline? This political family—which produced three prime ministers, including Jawaharlal Nehru is obviously gasping for breath. While it has overcome obstacles earlier, can it

do so now?

Firstly, the dynasty is declining perhaps because it is losing relevance politically. The growing number of aspirational youth (65 percent of the population) are not impressed by it. A good chunk of voters are born after Indira Gandhi’s assassination in 1984.

Nehru’s memory is even further removed for them. Few voters under the age of 30 remember Rajiv Gandhi either. So it is not surprising that the reverence for the first family is disappearing fast.

Secondly, over the years, the Congress has

20

January 15, 2016

declined steeply in many states including Gujarat, Madhya Pradesh, Uttar Pradesh, Chhattisgarh, Jharkhand, West Bengal, Odisha, Tamil Nadu, Telengana and Andhra Pradesh. It has lost power in Tamil Nadu for 48 years, West Bengal for 37 years and UP and Bihar for more than 25 years. In Punjab, the party is facing a serious threat from the Akali Dal-BJP combine, while in Delhi, it has virtually disappeared. In Bihar, it is slowly raising its head. The party is currently ruling in just nine states.

Thirdly, even the rank and file of the Congress is looking for a direction that can restore its fortunes. At one time, it was a democratic party with a formidable organization and a pan-Indian appeal. But from the 1970s onwards, it saw a decline in most states due to Indira Gandhi’s style of functioning.

The Congress presently faces a structural

of

Anil Shakya

dilemma on several fronts—organizational weakness, ideological stagnation and shrinking social support. There is also a leadership crisis with Sonia Gandhi’s declining health and confusion over Rahul Gandhi taking over the reins.

F

ourthly, there is a splintering of polity.

Several new dynasties from more than a dozen politically significant families have risen in some key states, including Uttar Pradesh and Bihar. These regional chieftains have a proprietorial hold over their strong vote-bank. The Congress has lost the capacity to breach these fortresses unless it chooses to ride piggyback on them as it did in Bihar.

Fifthly, the Gandhis are unable to battle a declining public image because of their disconnect. After the 2014 Lok Sabha drubbing,

Sonia was forced to defend not only the family but also the dynasty. “I take the responsibility as the Congress president,” she had declared after the defeat in an effort to shield her son. The party is still backing the dynasty.

An internal report after the 2014 debacle concluded that the defeat was due to a spate of corruption scandals, poor handling of the economy, infighting in the party and poor leadership, thereby rejecting any specific blame on the dynasty.

Sixthly, what is more worrying for the Gandhis is not only the loss of key states, but also the loss of traditional support of the minorities, Dalits and adivasis to the growing number of regional parties.

However, as experience shows, it is never wise to write off a politician and more so the Nehru-Gandhi dynasty. It always springs back. Therefore, it will be premature to

Though Rahul continues to be a reluctant prince, it is only matter of time before he takes over the party as the die is cast. His friends and supporters believe that he is shy, reserved, decent and out of place in politics. Age, however, is on his side.

FRESH CHALLENGE Sonia and Rahul arrive at the Patiala House district court for hearing in the National Herald case. It was for the second time that any member of the Gandhi family had to appear in a court

INDIA LEGAL January 15, 2016

21

Special Issue

POLITICS/ Nehru-Gandhi Family

The Congress presently faces organizational weakness, ideological stagnation and shrinking social support.

There is a also a leadership crisis. write off the first family despite its steady decline. The party looks to the Gandhi glue for unity and survival even if it has shrunk.

After all, this is not the first time that the dynasty is fighting for its survival.

I

NEVER SAY DIE Indira Gandhi with her son Sanjay Gandhi during the Emergency. She lost power after the Emergency in 1977 elections but soon bounced back after the polls in 1980

22

January 15, 2016

ndira Gandhi who was booted from office after the Emergency in 1977 bounced back in 1980. After her assassination, the party rode back to power winning an unprecedented 404 seats out of the 533 in the Lok Sabha, a record, which is yet to be beaten. After the Bofors scandal, Rajiv lost the elections, winning just above half of his earlier performance. In 1991, after Rajiv’s assassination, the party came to power with PV Narasimha Rao heading a minority gov-

ernment only to lose again in 1996. The next two years, it remained influential by supporting the United Front government but from 1998, it sat in the Opposition. In 2004, when everyone thought the party was finished, the Congress rode back to power and led by Sonia Gandhi, ruled for ten years until 2014.

However, the key to the revival was more to do with the mistakes committed by others and also the arithmetic when Sonia Gandhi stitched a coalition of secular parties. Now after the 2014 polls, with the Congress getting its lowest-ever score of just 44, the Gandhis are waiting once again to benefit from the mistakes committed by the BJP and Prime Minister Narendra Modi.

Italian-born Sonia Gandhi’s rise to power is like a fairy tale. She transformed herself from a housewife to a politician and from a European to an Indian in the last 45 years.

Born in a middle class family in Turin, Sonia met Rajiv Gandhi in Cambridge. It was a love at first sight and the two got married in 1968.

Sonia remained a housewife until the assassination of Rajiv in 1991.

After 1998, when she joined politics, she went on to become one of the most powerful women in the world. She was rated third most powerful in 2004 by Forbes magazine and sixth in 2007. She was ranked ninth in the list of world’s most powerful persons in 2011 and 12th in 2012. She also featured in the Time ’s list of 100 most influential women in the world in 2008. She was ranked sixth, a notch above US First Lady Michelle Obama in Forbes list of 100 most powerful women in 2012.

Congress leader Shashi Tharoor in an article in Time on May 12, 2008, wondered: “But which story is one to tell? That of the Italian woman who became the most powerful figure in a land of a billion Indians? That of the reluctant politician who led her party to power? That of the parliamentary leader who rejected the highest office in her adopted land, one she had earned by her hard work and courage? That of the woman of principle who demonstrated that one could stand for right values even in a profession corroded by cynicism and cant? That of the novice in politics, who became a master of the art, trusted her own instincts that she could be right

of

more often than her rivals could ever have imagined? The story of Sonia Gandhi is all these stories and more.”

S

onia continues to remain an enigma.

Former external affairs minister K Natwar Singh, a one-time family loyalist, in his autobiography, One Life is Not Enough, described her as “authoritarian, obsessively secretive and suspicious”. But her friends vouch for her warmness.

During Narasimha Rao’s regime (19911996), her political ambitions became visible when she created the Congress T (Tiwari) in 1994 with her loyalists, including ND Tiwari, Arjun Singh, ML Fotedar, Natwar Singh and Sheila Dixit. This experiment failed and she had to wait for four more years to become party president.

The timing of her entry was perfect as the declining Congress needed a charismatic leader and Sonia filled that vacuum. Sonia claims that she took the decision to head the party because of her duty to her husband’s family. Her decision on December 27, 1997,

announced from 10 Janpath took many, including the then party president Sitaram Kesri by surprise. She covered the length and breadth of the country covering 60,000 km, speaking in 138 constituencies in 34 days even as the party watched her breathlessly.

She eased out Kesri and took over the reins of the party in March 1998. Till today, she has remained the undisputed leader and the longest-serving chief. Only twice was her leadership challenged—once by the Sharad Pawar-Sangma duo in 1999 and a second time by the late Jitendra Prasad in 2000.

Both times, she emerged stronger.

Sonia became crafty by joining hands with Tamil Nadu chief minister Jayalalitha and pulled down the Vajpayee government in 1999. However, Vajpayee came back to power and Sonia also entered parliament to become the first woman Leader of the Opposition in 1999.

By 2004, she managed to get respectability in political circles and was able to gobble up a non-BJP coalition, including the DMK, Left parties and the RJD. In a master-

Experience shows that it is never wise to write off the Nehru-Gandhi dynasty. It always springs back. This is not the first time the dynasty is fighting for its survival.

ENIGMATIC RISE (Above) Sonia Gandhi on the cover of Time magazine in its May 2004 issue, after Congress regained power at the center (Left) Sonia with Rajiv Gandhi.

She took the plunge to head the Congress, as a duty to her husband’s family

INDIA LEGAL January 15, 2016

23

Special Issue

POLITICS/ Nehru-Gandhi Family

Rajeev Tyagi

FAILED ATTEMPT Sonia Gandhi created the Congress (T) in 1994 with her loyalists, including Natwar Singh (left) and ND Tiwari. But the experiment failed to make her party president

stroke, she put her proxy, Manmohan Singh, as prime minister to the surprise of all.

This was the second time she declined the throne, the first being soon after Rajiv’s assassination. She cleverly punctured the high-pitched criticism of the BJP by this proxy ruling. But it was no secret that Sonia continued to be the prima donna in her party as well as in the country as nothing moved without her knowledge for the next ten years.

However, the government was blackened by

a series of scams relating to the Commonwealth Games, 2G licenses, coal block allocations, and Adarsh housing scam.

S

onia also has achieved three things.

First, she brought a languishing party to power not once but twice. Secondly she has kept the flock together since 1998.

Thirdly, she also broke anti-Congressism in other parties, including the Left, to the extent they joined the UPA coalition. Anti-

Locked in scams and intrigues Corruption charges or allegations of being involved in controversies is nothing new for the Gandhi family. It has been involved in legal battles right from 1948. We list a few:

24

Mink Coat controversy (1966) In 1966, Ram Manohar Lohia, charged in parliament that Indira Gandhi had accepted an expensive mink coat from Jayanti Dharma Teja, a shipping tycoon and a dubious personality.

Nagarwala. The cashier was directed to collect the receipt later but when he went to PM’s residence to collect the same, he was told that no such request has been made by the PM. Police arrested Nagarwala and he was found guilty after he confessed his crime in court. However, the 1978 Reddy Commission report found that the confession should have been rejected as it was not admissible evidence.

Nagarwala case (1971) SBI’s chief cashier got a phone call from someone speaking in the then PM Indira Gandhi’s voice directing him to hand over `60 lakh to her messenger, a former army officer Rustom Sorab

Maruti scandal (1977) In 1974, Indira Gandhi’s name came up again in the first Maruti

January 15, 2016

scandal, where her son Sanjay was favoured with a licence to make passenger cars in the then highly restrictive-environment (Licence Raj).

Bofors scam (1987) The then prime minister Rajiv Gandhi and several of his associates were accused of receiving kickbacks from Bofors AB for winning a bid to supply 155 mm field howitzer guns to India.

2G Spectrum scam (2008) It is alleged that millions of dollars

of

Congressism was not only against the Congress but also against the Gandhi family.

Between 2004 and 2014, the Congress not only won two national elections and ruled for two full terms but also won 21 assembly elections. But there is no evidence that the party used its stint in power to energize the organization. Instead, it promoted rootless leaders.

Sonia brought her son Rahul to succeed her in 2004. Since then, these dual power centers have confused many in this party which believes in sycophancy. She has kept her daughter Priyanka Vadra Gandhi in reserve in case Rahul failed. That stage has not yet come.

As for Rahul Gandhi, he is yet to become a 24/7 politician. Ironically, the man who could have become prime minister at any point in the past decade did not want the job.

Had he become at least a minister in 2004 when he joined politics, he would have learnt a lot but he frittered away many opportunities. For instance, he could have intervened during Anna Hazare’s “India against Corruption” movement. He could have shown his mettle when Sonia Gandhi went abroad for treatment in 2014. He certainly did not show

were paid in bribes to ensure favours for certain firms in 2007-08 when India issued 122 new licences to mobile service providers. It was during the Congress rule and under Sonia’s presidency. Several licences were issued to firms who were ineligible, or who had no prior experience in the sector, or who had concealed material facts while applying.

Vadra-DLF controversy (2012) The controversy surfaced in October 2013, when antigraft activist Arvind Kejriwal and his associates accused Robert Vadra of

The dynasty can survive only as long as people let it survive. If it fails to perform, it may be booted out. But the Gandhis have not yet reached that stage. his vote-catching ability in the Uttar Pradesh, Maharashtra, Haryana, Jharkhand and other recent assembly polls where the Congress failed miserably.

All his experiments with the NSUI, Youth Congress and handpicked PCC presidents did not succeed. He has not only alienated senior leaders but has not been able to pick the right people for the right job. He has not grown into a good parliamentarian nor into a good public speaker. Part of his problem is the coterie around him who has no experience in politics.

However, though Rahul continues to be a reluctant prince, it is only matter of time before he takes over the party as the die has been cast. The advantage for Rahul is that there are no challengers within the party who are willing to give him a long rope. His friends and supporters believe that he is

corruption. Kejriwal alleged that Vadra, son-in-law of Congress President Sonia Gandhi, purchased at least 31 properties mostly in New Delhi worth more than `300 crore for which money came from “unsecured interest-free loans from DLF Ltd”. Both Vadra and DLF denied the allegations.

Chopper scam (2013) It is alleged that bribes were paid to several Indian politicians and military officials by AgustaWestland in order to win the `36 billion (US$ 540 million) Indian contract for the supply of 12 AgustaWestland AW101 helicopters to perform VVIP duties for the President of India and other important state officials.

National Herald case BJP leader Subramanian Swamy filed a complaint before a trial court in 2012, alleging that Congress leaders were involved in cheating and breach of trust in the acquisition of Associated Journals Ltd (AJL) by Young Indian Pvt Ltd (YIL), which has Sonia and Rahul on its board of directors. Assets worth over `2,000 crore had been transferred to YIL. The case created a sensation when Rahul and Sonia made an appearance in the Patiala House Court in New Delhi.

— Compiled by Priyvrat S Chouhan

INDIA LEGAL January 15, 2016

25

Special Issue

POLITICS/ Nehru-Gandhi Family

shy, reserved, decent and out of place in politics. Age, however, is on his side.

T

REAL TROUBLE? The Gandhis can’t take the National Herald case lightly as Subramanian Swamy, the accuser, is known not to let go his opponents

he Nehru-Gandhi family is also mired in some legal controversies. The Jeep scandal in 1948 was the first major corruption case in independent India when the first Indian High Commissioner VK Krishna Menon ignored protocols and signed `80 lakh contracts for the purchase of army jeeps with a foreign firm. In 1958, much to the embarrassment of the government, Feroz Gandhi, Indira’s spouse, exposed the insurance scandal involving Ram Krishna Dalmia.

In the late sixties, there was the mink coat controversy when shipping tycoon Dharam Teja was alleged to have gifted a mink coat to Indira Gandhi. She also faced the Nagarwala scam in 1971. The next one was the Maruti scandal involving Sanjay Gandhi in 1974, followed by the Bofors gun deal which embroiled Rajiv Gandhi and made him lose power. This was followed by the 2G contract scam in 2008, followed by the Vadra-DLF scam which surfaced in 2012. The Augusta chopper scam broke out in 2013. The same year, the Italian marines scandal also surfaced.

The latest issue rocking parliament is the National Herald case in which both mother and son are alleged to be involved.

BJP leader Subramanian Swamy has accused Sonia and Rahul of setting up a firm called Young Indian to buy the debt of Associated Journals Ltd (AJL, the company that owned National Herald) using Congress party funds. The Congress claims that it had given a loan of over `90 crore to AJL. The Delhi High Court recently observed: “From the complaint and the evidence led so far, it appears that (Young Indian Company) was in fact created as a sham or a cloak to convert public money to personal use or as a special purpose vehicle for acquiring control over 20 billion rupees ($335 million) UNI

26

January 15, 2016

worth of assets.”

However, when the Gandhis appeared before the Sessions Court at Patiala House on December 19 as per the High Court orders, they and the others got bail on a surety of `50,000 each. Metropolitan magistrate Loveleen said: “Charges cannot be termed serious in magnitude at this stage.” On Swamy’s insistence that they might tamper with evidence and even flee from the country, Loveleen retorted: “They are respectable people belonging to the oldest political party.

They have deep roots in society.”

W

hile the Congress is celebrating the bail as a victory, the magistrate has directed all accused to appear before it in person on February 20, 2016. By making out a purely legal case into a political one, the Gandhi family is perhaps trying to project the party as a victim and seeking popular support. They are also trying to relive the Indira Gandhi era by evoking memories of the legal case she had to fight, little realizing that it was a different time and different players.

Even she had to fight her case legally.

Whatever image the Gandhi’s might be trying to project, the case could harm them politically. For one, they fail to realize that it’s a gamble and can go either way in public perception. Politics is about perceptions, after all. While they expect a wave of sympathy, many may turn against them.

They also need to be careful because the case might take a long time to reach conclusion. And each time it comes up in court, the media will provide a flashback of the case, which is not in the family’s interest.

They also need to reckon that Swamy is a one-man army and does not let go his opponents, be it Ramakrishna Hegde, VP Singh, Jayalalithaa or Vajpayee.

Finally, by claiming a political victory in a bail, they are losing sight of the commonplace wisdom that bail is normal and jail is abnormal in legal cases. The moral of the Gandhi story is that the dynasty can survive only as long as people let it survive. The baton is about to passed over to Rahul Gandhi. If the dynasty fails to perform, it may be booted out. The Gandhis have not yet reached that stage. IL

Special Issue

INVESTIGATION/ Modi & Amit Shah Cases

UNI

Futile Fight C for Justice?

Attempts to implicate Narendra Modi and his right-hand man Amit Shah for the 2002 riots in Gujarat have come to naught as courts have given them and others a clean chit. Has Zakia Jafri’s fight been in vain?

By RK Misra in Gandhinagar

28

January 15, 2016

LEAN chits given by courts to those in power are not as simple as they look. Behind them are many issues—investigating agencies and their pullbacks, political arm-twisting and legal jugglery. The clean chit given to then Gujarat chief minister, Narendra Modi, former Gujarat minister of state for home, Amit Shah and others in the 2002 riots cases have raised many eyebrows.

Of course, the fact that Modi is now the prime minister and Shah the national BJP president may have had a bearing on the investigations. Power alters equations and absolute power alters it absolutely.

ARDUOUS FIGHT A petition challenging the clean chit given to Modi and others by Zakia Jaffri in the 2002 riots cases is before the Gujarat High Court.

of

Her quest for justice has been an arduous one after her husband, former Congress MP Ehsan Jafri, was among 69 people killed in the Gulbarg society massacre in Ahmedabad.

This was during the 2002 communal riots that followed the Godhra train carnage in which some thousand people died, largely from the minority community. The administration sought to thwart impartial investigation into the rioting cases and repeated attempts at lodging an FIR were subverted.

In 2006, Zakia filed a complaint in the Supreme Court against Modi and 62 others, which included ministers, police officers, bureaucrats and BJP leaders. The apex court constituted a Special Investigation Team (SIT) to probe the cases which included identified cases where it was felt that justice had not been done. The SIT found substance in the charges and filed charge-sheets in many of these cases against those who were culpable and the courts handed out varying jail terms to those involved.

However, it is the clean chit given to Modi

by SIT which was subsequently upheld by a metropolitan magistrate that has been challenged in the Gujarat High Court in March 2014. Zakia’s revision petition argues that the

lower court has not taken into consideration numerous aspects of the case, including the larger conspiracy that began before the burning of the Sabarmati Express bogie near Godhra railway station on February 27, 2002. The petition also said that even if riots broke out in reaction to the bogie’s burning, the state machinery had failed to control it.

Officials failed to do their duty, curfew was not imposed in time and the army was not called in immediately, it said.

Moreover, while upholding the SIT closure report, the lower court did not rely on witnesses such as former DGP RB Sreekumar, IPS officer Rahul Sharma and

POWERFUL DUO (Facing page) Amit Shah and Narendra Modi during a National Executive meeting Zakia Jafri (above left) waged a lone battle to punish the killers of her husband (above right) former Congress MP Ehsan Jafri. He was among the 69 people killed in the Gulbarg Society massacre during the riots that followed the Godhra train carnage

INDIA LEGAL January 15, 2016

29

Special Issue

INVESTIGATION/ Modi & Amit Shah Cases

The court rejected call records as evidence against Shah in the Sohrabuddin case saying the home minister of a state needed to be in touch with his officers. suspended IPS officer Sanjiv Bhatt. Zakia also asked for further investigation by an agency other than the SIT in the lower court, but this was turned down on the ground that it was out of the jurisdiction of the court.

This also forms a ground in the revision petition, notwithstanding the fact that a plea for reconstitution of the SIT before the Supreme Court was turned down. The matter now rests with the High Court.

UNTOUCHED The CBI did not chargesheet Amit Shah in the Ishrat Jahan fake encounter case

30

January 15, 2016

NOT CULPABLE? The case of Amit Shah has also seen interesting twists and turns. A special CBI court in Mumbai in December 2014 discharged him in the Sohrabuddin Sheikh and Tulsiram Prajapati fake encounter cases. “I find sub-

stance in the main contention made by the applicant (Shah) that he was involved in the case by the CBI for political reasons,” Judge MB Gosavi held.

CBI director Anil Sinha had then stated that the agency would study the court order and decide the further course of action, even as lawyer Abhishek Singhvi of the Congress had charged that the investigating agency did not present the case convincingly.

Small-time gangster Sohrabuddin Sheikh and his wife, Kauserbi, were on their way from Hyderabad to Sangli in Maharashtra by bus in November 2005 when they were intercepted and abducted by Gujarat’s AntiTerrorist Squad (ATS) and allegedly killed in a fake encounter. Tulsiram Prajapati, a witness to the encounter, was subsequently killed by the police at Chapri village in Banaskantha district of Gujarat in December 2006.

In September 2012, the CBI filed a charge-sheet in a Gujarat court against 37 accused, including Amit Shah and senior IPS officers such as DIG Vanzara and superintendent of police Rajkumar Pandian, under sections 302 (murder), 120B (criminal conspiracy) and 201 (destruction of evidence) of the IPC. In the same year, the encounter cases of Sohrabuddin and Prajapati were clubbed together and transferred to Mumbai following a Supreme Court order.

Interestingly, four months after Shah was discharged from these cases, on April 13, 2015, Judge Gosavi ordered dropping of criminal proceedings against another key accused, Gujarat IPS officer Abhay Chudasama. A day earlier, the same court had discharged two other accused—Ajay Patel and Yashpal Chudasama. They were all charge-sheeted by the CBI in 2010. Arrested

of

on April 28, 2010, IPS officer Chudasama was granted bail on April 28, 2014, and promptly reinstated in his job in August 2014 and posted in the vigilance squad that works directly under the Director General of Police of the state.

This, when the CBI charge-sheet had described Chudasama as a “trusted officer” of Shah. The CBI had defended its case against Shah by submitting his call records and alleging that he was in constant touch with the other accused during the time of the encounter. These included Pandian, then superintendent of police (ATS), Ahmedabad.

The court, however, rejected this contention saying that the home minister of a state needed to be in touch with his police officers who were part of an anti-terror unit. Chargesheeted along with others, Shah spent three months in jail in 2010 before being bailed out by the Supreme Court.

WITHDRAWING CASES There are other coincidences in these cases which make one question the truth behind certain matters. For example, earlier this year, Rubabuddin, brother of Sohrabuddin made it clear that he would not pursue criminal proceedings in the fake encounter case.

Last month, Tulsiram Prajapati’s family also decided likewise.

Rubabuddin had withdrawn his appeal against Shah’s exoneration in the Bombay High Court. Narmadabai, Tulsiram’s mother has written a letter to Nirjhari, widow of advocate Mukul Sinha, withdrawing permission to Jan Sangarsh Manch, the NGO fighting the cases of encounter victims, to fight cases on her behalf. She alleged that Sinha and other lawyers had taken her thumb impression on blank papers and vakalatnamas and she apprehended their misuse. She directed that these not be used to initiate any court proceedings and also stated that she was registering this letter.

Interestingly, Rubabuddin was the first to move the Supreme Court for his sister-in-law Kauserbi after his brother was killed in an alleged fake encounter. The probe ordered by the apex court led to the arrest of a dozen or more cops.

When the case was handed over to the CBI, it was its investigations that led to the resignation of Shah as MoS home and his arrest later.

Again, is it a mere coincidence that relatives who have been doggedly pursuing the cases involving the killings of their near and dear ones for years, were now retreating?

What has changed in these except those who are in power? A lawyer connected with this case said: “You said it.” IL

NADA FOR THEIR TROUBLES The court did not rely on witnesses like ex-DGP RB Sreekumar and IPS officer Sanjiv Bhatt (right) while upholding the SIT closure report on Gujarat riots

INDIA LEGAL January 15, 2016

31

Special Issue

HISTORY/ Netaji’s Files

SENSE OF ALIENATION Subhas Chandra Bose felt Jawaharlal Nehru had marginalized him in the Congress and the freedom struggle

What’s the “Secret” in the Papers?

S

IXTY-four files pertaining to Netaji Subhas Chandra Bose were declassified in Kolkata by Trinamool Congress chief Mamata Banerjee recently. The files, comprising 12,000 pages, immediately became the talking point for Netaji conspiracy theorists. However, the only “shocking” information that the files have revealed is that the Bose family had been tailed by Intelligence

32

January 15, 2016

The declassification of some files on Netaji is an attempt by the strident Bengali bhadralok to lionize this leader and by the present central govt to use its contents to turn the screws on political rivals

By Sujit Bhar in Kolkata Bureau sleuths—and, hence, by the ruling Congress party at the center—long after Independence.

That is intriguing because had Bose died in a Taiwan plane crash as has been explained for long, then, there was actually no need to put his family—political lightweights post-Independence—under constant surveillance even after the British left.

One can, of course, understand the hulla-

of

UNI

baloo over this declassification and the nondeclassification of several other Top Secret and Very Secret files held in New Delhi archives, all on Bose. To put it bluntly, it is Bose, and not Jawaharlal Nehru or even Mahatma Gandhi, who is the lionized leader in West Bengal.

To describe the mood, one just has to refer to a letter written by Netaji’s nephew Sishir Kumar Bose to Netaji’s wife, Emilie Schenkl, in 1955. He wrote: “If you were in India today, you would get the feeling that in India’s struggle two men mattered— (Mahatma) Gandhi and (Jawaharlal) Nehru.

The rest were just extras.”

ALIENATED BENGALI The reverence with which Netaji was held in West Bengal then is no different from what it is today. Mamata’s action in declassifying his files wasn’t just a political affront, it stemmed from a deep-rooted sense of alienation that

“The blunt truth is that even if all files are declassified, revealing ghastly secrets, none of its findings would be legally enforceable today.”

—Arunava Ghosh, former politician Bengalis felt at being sidelined from mainline politics, post-Independence. Till the advent of CPM leader Jyoti Basu—and that too for a brief while in the latter stages of his political career when he called his not being promoted as prime minister a “historic blunder”—Bengal lacked a leader who was prime leadership material, and that rankled.

That is what keeps Netaji alive in the hearts of the strident Bengali bhadralok, who spew arguments and theories to no specific end. That is the mindset that keeps Netaji conspiracy theorists alive. Maybe there is fire somewhere if the smoke is so thick. That is what pushed members of the Bose fami-

ENIGMA LIVES ON Family members of Netaji Subhas Chandra Bose present his portrait to Prime Minister Narendra Modi in October

INDIA LEGAL January 15, 2016

33

Special Issue

HISTORY/ Netaji’s Files

“I am sure the current dispensation wishes to use its contents to turn the screws on its political rivals.”

—A retired political observer ly—relative nobodies—right into the mainstream of state politics.

But what do the declassified files actually tell? They are full of the inane to the mundane. Petty matters of the Bose family—the birth of a child, the growing up of Netaji’s daughter Anita Bose (Pfaff ) and such—noted with care as if that was what state secrets look like.

Meanwhile, debate rages on about whether the Union government has any moral right now to hold on to the rest of the files. This, when it had promised before the elections in 2014 that it would declassify the files if it came to power.

HEATED EMOTIONS Followers of Netaji organize a padyatra in Kolkata in April 2015, demanding revelation of the truth regarding his death

HISTORICAL IMPORTANCE As emotions run high, it is time to look at what possible positions one can take if very specific bits of information—and ghastly ones at that—are indeed contained in the yet-to-be declassified files. To objective eyes and ears, a total declassification would be welcome because that very act would add value to our democracy and to the his-

tory of the Freedom Movement.

According to former politician and ace lawyer Arunava Ghosh, the declassification would “enrich history for sure, but the bogey of ‘relationships with foreign powers being spoiled’ is bunkum.” That is what the Union government has claimed in not agreeing to declassify the rest of the documents. He points to the acceptance of war crimes by Japanese soldiers in Korea. The result was a decorative “sorry”.

What does it all lead to?

The Netaji files bogey has been scripted by different “authorities” and “experts”. The Japanese turned against him, say some, especially since the timing was suspicious.

Bose, then 48, allegedly died in a plane crash in Taiwan on August 18, 1945, three days after Japan’s surrender to the Allied Forces. Others are sure it was the Soviet Union—“Netaji went to Stalin for refuge, but the dictator sent Bose to Siberia instead and had him executed.” All, however, accept that the British would not be liable to say sorry, because “they were the original crime bosses anyway”.

“If it were the Russians,” says Ghosh, “it would be stupid for anybody to expect the dispensation of Vladimir Putin today to take any blame for that act. It would be stupid for any Indian agency, leave alone the government, to try and apportion such blame.” This, then, leads to a position where the government should not be worried about the fallout of the declassification anyway. While the declassification could lead to fingers being pointed at the Congress, the fact remains that Mamata has openly courted this party, specifically on the Bihar elections platform.

LEGAL ANGLE If Japan were responsible for Netaji’s death, then it would only have to repeat the Korea act and say “sorry”. That is because there is no legal option open today.

According to Ghosh: “The blunt truth is that even if all files are declassified, revealing, in turn, ghastly secrets, none of its findings would be legally enforceable today.

It is too late. According to Indian laws, a private claim is not tenable after 12 years,

UNI

34

January 15, 2016

of

and a government claim, after 20 years.”

He brings up the Winston Churchill case. The-then British premier had routed all food grain from Bengal to war-torn UK in the early 1940s, leaving hundreds of thousands dead in villages and the streets of Calcutta. “Have we been able to do anything about this proven fact?” he asks.

“What makes you think anything can be done about Bose’s death?”

HISTORY & TRUTH “However, I salute the true patriotic spirit of Bose,” says Ghosh. “It has often been said

by Gandhians from upcountry that our Independence came primarily through peaceful means, through satyagraha. They conveniently forget the huge amount of bloodshed that preceded Independence.

Yes, these files must be declassified for the sake of history, because history deserves the truth,” he says.

A retired political observer (formerly of the CPM) has a different angle. “I don’t believe the government’s theory that declassification would ‘prejudicially affect relations with foreign countries’,” he says. “I believe there would be stories of Indian political wrangles being revealed instead.”

Bose wrote a letter in 1939 to his nephew Amiya Nath Bose, where he said: “Nobody has done more harm to me than Jawaharlal Nehru.” But Bose was in poli-

To objective eyes and ears, a total declassification would be welcome because that very act would add value to our democracy and to the history of the Freedom Movement. tics, and he had to keep good relations with Nehru and he tried. Says the observer: “If you have to live in the water, you cannot afford to quarrel with the crocodile.”

So why would the Union government not declassify the rest of the files, held secret for over 60 years? “I am sure the current dispensation wishes to use its contents to turn the screws on its political rivals,” says the observer with a smile. “The same way that earlier dispensations had kept the lid tight on them.”

Ghosh says that in the end, the historical significance of the contents of the file could well justify opening them up for the public. “Where Netaji went, and how and where he died may still remain shrouded in mystery, but what we would come to know was where he stood vis-à-vis the political scenario of the country at that time.

Historians would be able to draw a clearer picture of the Freedom Movement, and our leaders would show up to be more human, down from the pedestals we have put them on. That would be the gain.” IL

FEW ICONS TO BANK ON (L-R) West Bengal CM Mamata Banerjee’s keenness to have the Netaji files declassified stems from a sense of alienation that Bengalis feel in national politics Jyoti Basu, the only Bengali politician of prime ministerial mettle

INDIA LEGAL January 15, 2016

35

Special Issue

ACTS & BILLS/ Juvenile Justice

Bill of Contention THE Juvenile Justice (Care and Protection of Children) Amendment Bill 2015 was finally cleared by the Rajya Sabha on December 22. Having already been passed by the Lok Sabha, it now needs President Pranab Mukherjee’s assent to become law. The amended bill was tabled in parliament last year in the wake of the public outrage over the 2012 brutal gang rape of a 23-year-old paramedical student in a moving bus in Delhi. Among those charged with the heinous crime was a juvenile who was let off after serving a three-year detention.

The new juvenile bill, which has courted much controversy, facilitates juveniles (16 years of age and above) to be tried and punished as adults for heinous offenses like rape and murder.

Critics of the bill have questioned its constitutionality on the ground that it does not adequately protect child rights. Many also feel that the bill violates the UN Convention on the Rights of the Child which mandates that all children under the age of 18 years be treated equally. India is a signatory of the convention.

Votaries of lowering the cut-off age for juveniles are of the view that crimes committed by teenagers are on the increase and leniency should not be shown to those guilty of heinous acts. Harsh punishment, they believe, will serve as a deterrent.

There are several grey areas and varying shades of opinion on this highly emotive issue. MEHA MATHUR and SUCHETA DASGUPTA collated the views of lawyers, politicians and social workers on the amended bill:

36

January 15, 2016

Enakshi Ganguly Thukral, co-founder, Centre for Child Rights “I am deeply disappointed. The legislation is influenced by lynch mob and media hysteria. Even women’s groups are saying that women’s safety should not be at the cost of putting children into prisons. The two should not be pitted against each other. The juvenile justice system is not about letting children go free, but about putting them into a separate system. And age 18 needs to be the age for juveniles.

We are also working with child sexual abuse victims, and it’s not that we have no understanding of their pain.”

Vrinda Grover, lawyer, women’s rights activist “It’s a very unfortunate and regressive move. They have completely misunderstood that the Juvenile Justice Act was in keeping with the principles of international law, the entire purpose of which was reformative.

I represent women victims and I am not sympathizing with rapists, but the Act was based on scientific analysis of the age for juveniles.

Under the new bill it’s the Juvenile Justice Board which will decide the maturity of the person, even though these boards lack the expertise. The parliament has done this without putting proper systems in place. We have only played out to public sentiments which can be uninformed sentiments. And we have only ensured that the problem will get worse as they will turn into hardened criminals.”

of

Voices from parliament “We can do nothing about that young man (the Nirbhaya rapist). He will come, he will go his own way in life and, God willing, be a decent citizen after this; if it is possible. But it will stop a large number of boys who have got into this.”

—Maneka Gandhi, union minister for women and child development, in the Rajya Sabha

Kavita Krishnan, secretary, All India Progressive Women’s Association (AIPWA) “It sets a very unfortunate precedent as no law should be enacted without due diligence. The government should have consulted with women’s groups who work with rape survivors. AIPWA, AIDWA, Pragatisheel Mahila Sangathan, Jagori, Saheli have almost unanimously stood against this bill. It has been our long-held position. The Justice Verma Committee rejected both death penalty and sending juveniles into the adult courts and jails.

The Committee, quoting extensively from studies of international experience, and praising the maturity of women’s organizations on the issue, noted: ‘We have heard experts on the question of reduction of the age of a juvenile from 18 to 16 for the purpose of being tried for offences under various laws of the country. We must confess that the degree of maturity displayed by all the women’s organizations, the academics and a large body of thinking people in the way they have viewed this incident humbles us....We are of the view that the material is sufficient for us to reach the conclusion that the age of ‘juveniles’ ought not to be reduced to 16 years.’ On a more specific note, I would say the parents’ anger in this case is justified. But retribution does not equal justice for society as a whole.”

“What is the harm in taking cognizance of public sentiments? The five-hour debate was by and large rational. We now need to be gracious about the fact that the entire House except the CPM passed the bill, acceding to what the people wanted.

Good bill, very good bill, ideal bill, we can’t wait indefinitely for an ideal bill.”

—Derek O' Brien, TMC leader, in The Indian Express

“We are emotional, worried about safety of women. At this juncture, what is the hurry? Child crime is static and not gone up… The parliamentary standing committee as well as Justice Verma Committee were against reducing the age. This is a concern. Please send it to a select committee.”

—Kanimozhi, DMK leader, in the Rajya Sabha

“If tomorrow you catch hold of a young ISIS terrorist, you will say bring down the age by another two years. The question is not about the age but the kind of crime that has been committed.”

—Sitaram Yechury, CPM general secretary, in The Indian Express

INDIA LEGAL January 15, 2016

37

Special Issue

ACTS & BILLS/ Juvenile Justice

Dr Ranjana Kumari, director, Centre for Social Research “I am very happy with the Rajya Sabha passing the bill. I was campaigning for it, despite facing criticism. One problem with the Juvenile Justice Act, 2000, was that it did not consider the nature of crime. It was not acting as a deterrent. It’s important to bring in a more stringent law. The power to decide on the maturity of the person and quantum of punishment has been given to Juvenile Justice Boards under the new bill. I don’t see a reason to mistrust them. If you are, you are questioning the complete system. Rather than questioning, we should now be streamlining the system. I too believe in child rights but the nature of crime will have to be considered. Rape and murder are not juvenile crimes.”

Karuna Nundy, advocate, Supreme Court “The bill is very problematic. For a deeper examination of the bill as well as the statistics that seem to have necessitated it, it should have been sent to a select committee. If the juveniles leave as unreformed adults, crimes against women will go up as a result of it. It is indeed a tragedy that it has been passed in the Rajya Sabha. The parliamentarians and other louder voices have failed to look at the evidence that would actually reduce crimes against women.”

Kailash Satyarthi, Nobel peace laureate and founder, Bachpan Bachao Andolan, on TV18 “The new bill has provisions that were not there in the old law. These children, aged between 16 and 18, who commit heinous crimes like rape and murder will not be sent to a jail along with other criminals but rather will be sent to a special place of safety, till they turn 21. After which they will be reviewed and if it is proven that he is reformed then it is fine. But if not he will be sent for reformation again.

I feel the Juvenile Justice (Care and Protection of Children) Amendment Bill 2015 has many good things as age is not the only factor in it.”

38

January 15, 2016

INDIA L EGAL

The Best of

India

Legal NJAC-Collegium controversy...................Page 40

Sex workers as paralegal volunteers.................... Page 74

Need for judicial reforms..........................Page 45

Sexual misdemeanors in Kerala churches...... Page 80

Yakub Memon’s hanging.........................Page 48

Judicial intervention in Santhara ritual.......Page 86

Maggi ban......................Page 54

Interview with ICJ president, Judge Ronny Abraham..........Page 90

Arvind Kejriwal-Najeeb Jung imbroglio..............Page 60 Muslim personal law ... Page 64 Appointment of state ODZ RIoFHUV Page 70

Landmark ruling on abortion...................... Page 92 Amateur sex videos......Page 96

Special Issue

LETTER FROM THE EDITOR

INDERJIT BADHWAR

YOUR LORDSHIPS, WE BEG TO DIFFER HE long-awaited tantalizing Supreme Court judgment in the NJAC case was out in the public domain on October 16—about four months after the conclusion of hearings. The court essentially struck down as unconstitutional the amendment that validated the National Judicial Appointments Act passed by parliament and thus paved the way for the continuance of the collegium system for the appointment of judges to the higher judiciary. Union Law Minister Sadananda Gowda reacted by saying the judgment was surprising.

Arun Jaitley called it the “tyranny of the unelected”. As usual, the declared and undeclared spokesmen for the Congress party and other opposition parties attacked Jaitley and hailed the judgment.

They were obviously guided by political interests, forgetting that all the parties had unanimously passed the legislation in parliament. Justice RM Lodha, the former CJI, advised a no confrontation course, but counseled improvement in the collegium system.

To put things in perspective, one must examine the background and contours of the appointments issue. The “First Judges Case” in 1981, presided by a seven-member bench, interpreted the words “shall in consultation with CJI in Article 217” to mean effective and meaningful consultation without giving primacy to the views of the CJI. The Second Judges Case in 1993, presided by 11 judges, interpreted the words “consultation in Article 124” to mean concurrence and that the views of the CJI along with two seniormost judges would be binding on the president.

This is how the collegium system was evolved.

The interpretation was essentially a judge-made

T

40

January 15, 2016

law not found in the text of Article 124. The interpretation of the word “consultation” was in the light of the constitutional debates, in which Dr BR Ambedkar rejected giving primacy to the views of the CJI and chose a mid-path of effective consultation with the CJI. In the Third Judges Case in 1998, presided by an 11-judge bench, the Attorney-General (A-G) at the outset submitted that the government does not want to seek review or reconsideration of the rationale laid down in the Second Judges Case. The arguments were addressed only on the question of reference made by the president.

The Third Judges Case expanded the numerical strength of the collegium to the CJI plus four seniormost judges for elevation to the Supreme Court and transfer of the judges of the High Court.

The CJI, plus two seniormost judges, were to be the collegium for appointment of judges and chief justices of High Courts. It was further laid down that the views of the concerned seniormost state judge in the Supreme Court should be taken.

Since there were large numbers of vacancies in high courts that remained unfilled, the judgment in the Second Judges Case directed filling up the vacancies immediately. It prescribed the timeframe of the procedure. It was also stated that the Supreme Court collegium is an expert and the best judge to appoint suitable persons. Thus, it held that executive interference in the appointments is obviated, which ensures the independence of the judiciary. The purpose for which the collegium system was evolved utterly failed. Neither were the vacancies filled up in time nor were efficient and suitable judges appointed to high courts to dispose civil, criminal and tax matters expeditiously. Cases of

of November 15

Anil Shakya

this nature are still pending for over 10 to 15 years.

Also, a strong sense got ingrained in the high court collegium that it must remain obeisant to the Supreme Court collegium and to the state judge in the Supreme Court. All recommendations made by the high court collegium had to be in accordance with the wishes of the apex court collegium and state judge or there was the imminent risk of these being rejected. The reasons for rejection are not even made known to the high court collegium. For this reason, the vacancies in the high courts could not be filled up, and at times, unsuitable persons got elevated.

T

he lack of transparency and objectivity in the functioning of the collegium created lot of discontent among jurists and civil society. The Second Judges and Third Judges cases permitted recommendations with dissent but the collegium intelligently avoided recommending any case with dissent to prevent indulgence of the executive.

The recommendations for appointment, non-appointment, transfer and complaints against the judges are not subjected to RTI and judicial review under the pretext that the litigative debate would result in erosion of credibility of the decisions.

In the case of a junior judge to be elevated overlooking his senior, it was said that the outstanding merit of the person recommended need not be compared with that of the senior judge

The lack of transparency and objectivity in the functioning of the collegium created lot of discontent among jurists and civil society. bypassed. Only the outstanding merit of the person recommended be stated. The judgment of outstanding merit is also a subjective one. The collegium system has been criticized by Justice Punchi as judicial oligarchy.

There were abortive attempts to establish a Judicial Commission in 1990 and 2003. The UPA government too was strongly in favor of creating a Judicial Commission. Both the houses of the present parliament unanimously passed the constitutional amendment to incorporate Article 124A and enacted the NJAC Act. The object of NJAC was to bring in transparency and objectivity in the matter of appointments to the higher judiciary which was being rampantly breached in the collegium system.

The basic challenge against the NJAC before the Court was that it impinges the independence of the judiciary which is one of the postulates of the basic structure of the constitution. The constitution bench, presided by Justice JS Khehar, by 4:1 struck down the NJAC and the constitutional amendment as ultra-vires as it scuttles the judiciary’s independence. The wisdom of the judg-

JUDICIAL CHURNING (Above) The landmark judgment on NJAC Act by the apex court raises a number of questions on the future of Indian judiciary

INDIA LEGAL January 15, 2016

41

Special Issue

LETTER FROM THE EDITOR

MINCING NO WORDS (L-R) Finance Minister Arun Jaitley and Law Minister Sadananda Gowda expressed surprise at the Supreme Court judgment

Photos: UNI

ment has to be judged by the reasons upon which the conclusions of the judgments are based.

T

he following are the broad reasons given by the judges in their separate judgments: (1) The A-G at the outset submitted in the Third Judges Case that the government does not wish to seek review or reconsider the decision in the Second Judges Case; (2) The memorandum of procedure evolved by the executive gives it adequate and fair participation in the process of appointments; (3) The controversial recommendations made by the collegium have been accepted by the executive without any demur. Thus, there was a failure on the part of executive in not performing of constitutional duty. For that, the collegium system cannot be condemned; (4) The presence of the law minister in NJAC tantamounts to executive interference; (5) The veto power given to eminent persons is vulnerable to misuse and they can veto any and every recommendation made by the CJI and two seniormost judges in the NJAC; and (6) The judges elevated by a political lobby would be loyal to the political bosses and a sense of reciprocity will prevail in them. Thus, the judgments rendered in crucial matters may not be free and fair.

There is a counter to the judgment. The first reason was that in the Third Judges Case, the Union government did not seek review or reconsideration of judgment in the Second Judges Case.

42

January 15, 2016

But this cannot stop the parliament from enacting a law. (2) The fact that the government did not oppose the controversial appointments is also not a factor to prevent parliament from making a law.

In fact, when there have been inappropriate compromises between collegium and the executive, the parliament has every right to enact a law which is more transparent and objective. (3) It’s again a myth that the memorandum of procedure gives fair and adequate participation for the executive.

The recommendations from the high court collegium are always influenced by the collegium judges and the state judge in the Supreme Court.

What transpires behind closed-door meetings of the collegium is not known to anybody. The Supreme Court collegium, to suit its convenience, always makes unanimous recommendations cryptically, without any reasons, lacking objectivity. (4) The view that the presence of the law minister in the NJAC amounts to executive interference and the tendency to condemn all politicians, parliamentarians and ministers as non-trustworthy to uphold the constitution lacks requisite judicial respect for other constitutional institutions and functionaries. In the memorandum of procedure, the participation of the law minister is accepted for giving inputs. But, his presence in the discussions among the judges of the Supreme Court is one that becomes uncomfortable to the collegiums since such presence does not give scope for the arbitrary decisions of the collegium. (5) That emi-

of November 15

nent members will misuse veto powers arbitrarily and oppose the names proposed by the judges of the Supreme Court is an untenable view. The eminent persons are appointed by the committee consisting of Prime Minister, CJI and the leader of the opposition.

Therefore, the inference and the view that eminent persons would always be partisan and to suspect their intellectual integrity is an untenable view and it is an affront to civil society.

Integrity and probity is not the sole monopoly of judges and the legal community.

The object of participation of eminent persons is to only ensure transparency, objectivity and credibility of the discussions and decision taken by the NJAC. One of the judges made a reference to LK Advani’s statement that an Emergency-like situation can still occur. A reference was also made to the removal of governors by the NDA government and attributing political motives in the Teesta Setalvad case—these are out of the purview of the legal parameters and not appropriate to be made as reasons for striking down the NJAC. One of the judges noting that LGBT candidates will have no scope for elevation in the NJAC system is an amusing view.

T

he National Commission to Review the Working of the Constitution (NCRWC), headed by Justice MN Venkatachalaiah, along with the team of former judges of the Supreme Court and eminent personalities, did suggest a National Judicial Commission consisting of the CJI, chairman, two seniormost judges of the Supreme Court, Union minister for law and justice, and one eminent person nominated by the President to replace the collegium system. In fact, the majority judgments do not make any reference to this aspect. It cannot be said that the chairman and members of NCRWC had glossed over the concerns of independence of the judiciary while making the suggestion.

Majority of the judges held that the collegium

JUDGES’ CLUB (L-R) Justice JS Khehar presided over the SC Bench on NJAC Act; Former CJI RM Lodha advised against any confrontation

system which evolved in the Second and Third Judges Case does not require any reference to a larger bench and the law laid down is correct. If it is so, where is the need for the bench to hear the issue of making improvements in the collegium system? Will this bench of five judges be competent to add suggestions to the guidelines laid down by the 11 judges’ bench to improve the collegium system? It is implicit that the collegium system suffers from many legal infirmities. If at all the exercise is needed to improve the collegium system, it should be by a larger bench of 13 judges.

The judges could have read the provisions of the NJAC Act, guidelines could have been laid down prescribing the parameters for those who could be considered to be appointed as an eminent person and made the provisions of NJAC Act in accordance with the constitutional spirit instead of improving the failed collegium system.

One gets the feeling that the judges are not prepared to give up their arbitrary power of making/ influencing recommendations for elevation to the higher judiciary. Absolute power corrupts absolutely; judges are no exception to this adage. IL

The latest…

The SC agreed that the centre should finalise its memorandum of procedure (MoP) for appointment of judges to the higher judiciary. But the apex court set certain guidelines and wanted the CJI’s involvement after he had sought views of the collegium of the four seniormost judges of the SC. The five-judge bench zeroed in on major aspects which include eligibility criteria, a clean appointment process, a secretariat for the selection process, and a mechanism to address complaints against judges who were being considered.

editor@indialegalonline.com INDIA LEGAL January 15, 2016

43

NO I HOLDS BARRED

Bhai gets new Jaan26

ical Minefield Chhota Rajan: Polit AJITH PILLAI

Never-told-befor Lalu Yadav’s poli e explosive story of the CBI’s com tical enemies to nail him in the foddplicity with 46 er scam

NDIA L EGAL E L N INDIAL EGAL NDIA L EGA I tion tion of Sedi Interpreta KER N CHAPALGAON

52

JUSTICE

By NEETA KOLHATKAR

lonline.com

www.indialega

`100

49

www.indialegalonline.com

December 31, 2015

`100

By AP DURAI

30, 2015 November

December 15, 2015

www.indialega

lonline.com

`100

STORIES

STORIES THAT COUNT

NT THAT COU

Political Paralysis

ECTIONS

’s Moditvah minis ing Dim urnstics of Retu

BIHAR EL

THE PA

nkar

nomics Modi’s Freako

By Ajith Pillai or PM? PracharakBad hwar

By Inderjit

VIPIN PUBBY: Identity crisis hits meat 40

THAT COU NT

As the Congress goes on the warpath in defense of its First Family in the National Herald controversy, legislation comes to a full stop Ajith Pillai examines the national fallout Venkatasubramanian untangles the legal intricacies 18

ia, old tac In an aspiring Indwill not work 08 divisive politics i and Nitish Lessons for Mod

By Kalyani Sha

STORIES

BIKRAM VOHRA: Air travails of the disabled 64

RK MISRA: Wanting a Womb 26

IAN: BRAMAN R RAMASUin Bad blood 42 Madras HC

LAW TWEAKED SO BEATLES CAN LIVE ON IN RISHIKESH 58

PAPIA SAMAJDAR Legal ownership race in space 70

TS THAKUR Chief Justice speaks out on arbitration

EFFECRTIS SMRUTI Endemic intolerance

34

42

Inderjit Bad r exa legal tangle hwa on sno mines the Indian France caught oping in a Is Belgium the web of confusion new US ponders effi terror theatre? cacy of mass sur veillance 08 CONSTIT UTION

DEBATE Modi’s balm 54

MURALI KRISHNA N Taslima Nasreen’s exclusive interview

42

AJITH PILLAI Indrani’s mess gets messier

56

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 editor@indialegalonline.com

SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS HTb 8 f^d[S [XZT c^ bdQbRaXQT c^ 8=380 ;460; \PVPiX]T U^a cWT ^UUTa X]SXRPcTS QT[^f Tick one

Term (Years)

No. of Issues

Cover Price (`)

You pay (`)

You save (`)

% Saving

1 Year

24 Issues

2,400/-

1,200/-

1,200/-

50%

2 Years

48 Issues

4,800/-

1,920/-

2,880/-

60%

=P\T) 0VT) BTg) 0SSaTbb)

2Xch) BcPcT) ?X]) ?W^]T ATb ) >UUXRT) T \PX[) 4]R[^bTS 33 2WT`dT =^ ) 3PcTS) 3aPf]) U^a `) 2PaS =^ ) BXV]PcdaT) 5^a ^dcbcPcX^] RWT`dT _[TPbT PSS ` $ 33 2WT`dT c^ QT SaPf] X] UPe^da ^U 4= 2^\\d]XRPcX^]b ?ec ;cS C^ QT bT]c c^) 4= 2^\\d]XRPcX^]b ?ec ;cS 0 ( BTRc^a %' 6PdcP\ 1dSSW =PVPa =>830 D ? ! " ( CTa\b R^]SXcX^]b P__[h ?[TPbT _a^eXST db # fTTZb c^ bcPac h^da bdQbRaX_cX^]

of

LETTER FROM THE EDITOR June 30

INDERJIT BADHWAR

COURTS AND THE AGONY OF TRANSFORMATION UR courts are going to have a handful.

Already overburdened by a mindboggling backlog of cases of every conceivable nature—civil, criminal, jurisdictional, international—the higher judiciary must now get ready to face an array of cases that concern the way the country is run and governed.

And the decisions it makes in these cases may well become the harbingers of constitutional shifts and game-changing precedents affecting our very nationhood.

India is going through a massive political transition not only because it is now governed by a party with a majority whose right-of-centre ideology will perforce trickle into every nook and corner of governance but also because the courts are being increasingly called upon to rule on matters which often defy precedent and may not find parallels in existing case laws and the precepts of natural justice within the body of Indian or international legal opinions and judgments.

Take for example the case of the poor farmer who was killed by hanging from a tree adjacent to a pro-farmers rally by Delhi’s ruling Aam Aadmi Party. There’s a police and magisterial investigation under way to determine who is culpable: the security forces? The rally organizers? Mediapersons who stood around recording the event rather than jumping to help the hapless victim? Or the Delhi government?

In yesterday’s India, the man would have been cut down from the rope. The event declared a suicide. A cremation. And then…on with the next show. But in today’s India, accountability is becoming a key watchword in the everyday busi-

O

ness of being and functioning as a citizen. The Indian wants answers. The Indian wants someone to pay for something that has gone wrong and needs sorting out. The system of governance— heavily weighted towards an elected but largely unaccountable, rigid, hidebound, self-protectionist executive branch guarded by a colonial-style bureaucracy— has not learned to respond adequately or in time unless prodded by the courts or the press.

So, naturally, the people turn more and more to the courts which, although also the object of public criticism for being slow or compromised—have often proven to be the only real last and lasting resort. But despite the intentions of the best of our judges, what are they to do in the face of the backlog mountain? Let me cite—from media sources— the Supreme Court’s own statistics:

A

ccording to data available with the apex court, the number of pending cases with the Supreme Court is 64,919 as on December 1, 2014. The data available for the 24 high courts and lower courts up to the year ending 2013 showed pendency of 44.5 lakhs and whopping 2.6 crores, respectively. Of the over 44 lakh cases pending in the 24 high courts of the country, 34,32,493 were civil and 10,23,739 criminal.

The maximum pendency of civil and criminal cases together was in Allahabad High Court with 10,43,398 cases while the minimum was in Sikkim with 120 cases pending at the end of 2013. The Delhi High Court had a total of 64,652 cases pending before it. As per the data, the Allahabad High Court had the maximum number of pending INDIA LEGAL January 15, 2016

45

Special Issue

LETTER FROM THE EDITOR

TOO MUCH ON THE PLATE (From left) The judiciary is saddled with a plethora of cases like Nirbhaya rape, Jayalalithaa’s conviction followed by acquital, the Sunanda Pushkar murder mystery, and the row over fake degrees

criminal cases—3,47,967.

Of the 2.6 crore cases pending in lower courts, Uttar Pradesh subordinate judiciary tops the chart with over 56 lakh cases pending by the end of 2013, out of which 41,98,761 are criminal matters.

Delhi district courts recorded a total of 5,22,167 pending cases, including 3,81,615 criminal cases.

I

f you said, whew! you would be expressing the same exclamatory sentiment probably being experienced by conscientious judges struggling with how to prioritize their schedules. Do they deal first with the innocent undertrial, unable to afford bail, who has been sitting in jail for 10 years waiting to clear his name or do they tackle cases of grave constitutional import and significance that may impact the very functioning of the Indian Republic and the Rule of Law? That everybody seems to be turning to the courts to solve problems is no exaggeration. If you study the papers and watch TV news of the last couple of years, you cannot escape the fact that almost every Page One story—current affairs, politics, economic—has a massive legal angle to it crying out for juridical comprehension and judi-

The courts are being increasingly called upon to rule on matters which often defy precedent and may not find parallels in existing case laws.

46

January 15, 2016

cial resolution.

Start anywhere: The former Tehelka editor Tarun Tejpal case and the definitions of rape and Vishakha guidelines as well as sexual harassment charges against sitting judges. Net neutrality.

Cyber censorship and the implementation of laws such as Section 66A. The Armed Forces Special Powers Act. The Modi government’s rule by ordinance. The issue of bills involving criminal prosecutions being passed off as “money bills” in the Lok Sabha and thereby bypassing the scrutiny of the Upper House. Draconian provisions of the antiblack money legislation that would give police powers to ordinary tax assessors and shift the burden of proof to the taxpayer. The ugly battle between an elected government in Delhi and a Lieutenant Governor accused of sabotaging governance under orders from the central government.

A state law minister being arrested and detained for allegedly faking a law degree. Prosecutors challenging the verdict of a court that exonerated Tamil Nadu Chief Minister Jayalalithaa. The tussle between the ministries of Information and Broadcasting and Home over stopping the Sun TV and media empire from functioning. The bitter struggle between the executive and the judiciary of the Judicial Appointments Commission and the old collegium system for appointing judges. The politics of post-mortems in which murder is suspected as in the Sunanda Pushkar case. Retroactive taxation as in the Vodafone case.

India Legal has reported on most of these sto-

of June 30

ries keeping in mind the legal perspectives, of which readers must become aware if they are to understand and discharge their duties and protect their civil rights and liberties as citizens. In the current issue of our magazine, we focus on similar vexing issues which ultimately will tax the brains and acumen for our lawyers and judges because in many ways their outcomes—as in the stories listed in the previous paragraph—will change the way we live and our nation functions.

The cover story—inspired by Nestle’s Maggi noodles controversy—will mark a watershed, as Bhavdeep Kang argues, in India’s history as a consumer nation, its laws, health regulation, consumer protection, and human awareness as a whole. It is going to create a tidal wave of reactions and counter reactions and judicial outcomes.

This issue also reports on Madhya Pradesh’s Professional Examination Board (PEB) scam which has left some 32 suspects dead under mysterious circumstances.

W

e also carry a story on the posts of chief vigilance commissioner and chief information officer finally being filled after a long gap. Now this is good news. But for constitutional analysts and good governance proponents, the news provokes the need to seek judicial intervention to declare that the non-filling of these key government posts should be made culpable. One analyst has pointed out a lacuna in the law itself: The first problem is that the CVC post is directly

Do judges deal first with the innocent undertrial, unable to afford bail, or tackle constitutional cases that may impact the functioning of India and Rule of Law? under the control of the government as the committee that selects the CVC consists of three parliamentarians, the prime minister, minister of home affairs and leader of opposition. Moreover, there is no transparency in the process of nomination and selection of candidates for the post and the law reserves this post only for active or retired bureaucrats. The second problem is that the CVC Act, 2003 does not set any time limit within which to appoint the CVC , after the incumbent retires or is removed. This is a big loophole which is misused by the political parties in keeping the post vacant for as long as possible. Surely this is a fit case for a PIL or judicial intervention.

But where do we begin? How will the learned judges know what to prioritize in a nation in the throes of change, corruption, criminality and controversy? They will have to learn to make quick, tough and hard decisions and pave the way for sweeping reforms holding on tenaciously to the precepts of liberty, equality, freedom, and justice for all as India transforms itself. IL

editor@indialegalonline.com INDIA LEGAL January 15, 2016

47

Special Issue

LEAD/ Yakub Memon Case

A BREACH OF TRUST?

Getty Images

Yakub’s death sentence has raised questions about the way probe agencies have made fugitives surrender after giving promises. With agencies having washed their hands off him, will new informants hesitate to come forward?

By Ajith Pillai

48

January 15, 2016

T

HE death sentence awarded to Yakub Memon raises a pertinent question. Should a deal brokered by the police or intelligence agencies that precedes the informal surrender by an accused be honored following his or her arrest? And, in good measure, though not directly related, it also puts a question mark on the manner in which the system allows witnesses to be coerced by vested interests to

of August 15

QUESTION OF FAIRNESS B Raman, head of the counter-terrorism division of RAW, had revealed in an article for Rediff.com how Yakub had surrendered

derail a case. In several such instances, the state, the police and the prosecution are guilty of hiding certain truths and backing the side they favor to subvert justice. This is the reason why several judicial experts, including judges and lawyers, have been strongly recommending the enactment of a law that provides for comprehensive witness protection. (See accompanying story.)

As for Yakub Menon, the prosecution’s charge, upheld by the TADA court in Mumbai, was that he conspired, aided and abetted in the planting of 13 bombs across Mumbai in 1993, which killed 257 and injured 713. He is said to have worked in tandem with his brother, Tiger Memon, one of the principal accused in the 1993 Bombay blasts case, who, along with Dawood Ibrahim, another key conspirator, are still absconding. The court sentenced Yakub to death in 2007. He is the only accused in the case to be handed the death penalty.

The date of his execution was slotted for July 30 when he approached the Supreme Court for one last time.

RAMAN’S REVELATIONS Under normal circumstances, Yakub’s case would not have attracted the public attention it has or courted controversy. But it did

because of the publication of a column written by the late B Raman, who headed the counter-terrorism division of the Research and Analysis Wing (RAW), India’s external intelligence agency, when Yakub Memon had been persuaded to surrender in 1994. Raman had penned his revelations in 2007 and submitted it to news portal rediff.com after the TADA court had pronounced Yakub’s death sentence. However, Raman requested the website to withhold publishing his views since others “might escape as a result of this article if the higher court holds that the entire case has been vitiated as a result of the prosecution concealing a material fact from the sentencing court”. On July 24, rediff.com printed Raman’s column posthumously and it kicked up a storm.

What comes through from Raman’s column was a rumor that did the rounds among crime reporters in Mumbai when the police dramatically announced that Yakub had been arrested at Old Delhi Railway Station in January 1994. It was then said that the police had worked out a deal and that Yakub was promised a lenient punishment if he cooperated with the investigations. Raman’s revelations more or less confirm this.

According to him, Yakub, who had fled with other members of the Memon family

“There is no infirmity in the procedure followed by TADA court in issuing the death warrants on April 30 and scheduling the execution for July 30.

The issuance of death warrants cannot be faulted”.

—Supreme Court, upholding death sentence for Yakub Memon on July 29

INDIA LEGAL January 15, 2016

49

Special Issue

LEAD/ Yakub Memon Case

Getty Images

reputation, confirms that “the entire operation was coordinated by me”. According to him, the then prime minister, Narasimha Rao, was also kept in the loop.

Crucially, Raman goes on to say: “The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.” In short, Raman’s plea was that Yakub should have been given a lesser penalty than what he was awarded.

LIMITING THE OPTIONS Indian agencies are struggling to bring back those wanted by law, notably Dawood Ibrahim (top) and former BCCI chief Lalit Modi

50

January 15, 2016

to Pakistan at the insistence of his brother, Tiger, was “informally picked up in Kathmandu… driven across Nepal to a town in Indian territory, flown to Delhi by an aircraft of the Aviation Research Centre (RAW’s air support wing) and formally ‘arrested’ in Old Delhi by the investigating authorities and taken into custody for interrogation.”

The RAW officer, who enjoys an impeccable

MORAL SUPPORT Ever since the column became public, politicians, from BJPs Shatrughan Sinha to Congress’ Mani Shankar Aiyar and CPM’s Sitaram Yechury, have pleaded for a re-look at Yakub’s sentence. Former Supreme Court judge HS Bedi has suggested that the court should take suo moto cognizance of Raman’s column, while another former justice of the apex court, Markandey Katju, has said that there was “gross travesty of justice” in Yakub

of August 15

Memon’s case. Several eminent lawyers, politicians, former judges, actors, writers and human rights activists have signed a mercy petition and submitted it to President Pranab Mukherjee, urging him to stay Yakub’s execution.

From within the intelligence community, several former officials vouch for Raman’s credibility and say that what he has revealed must be taken seriously. AS Dulat, former RAW chief and National Security Advisor in the Vajpayee government, says: “It is brave of B Raman to speak the truth, I admire his courage...I totally believe what Raman says, I have no reason not to believe him.”

Dulat should know. In his book Kashmir: The Vajpayee Years, he talks of how he had opened back channel negotiations with separatists in Kashmir, befriended those who had taken to the gun and persuaded them to give up militancy and return to the mainstream.

They were given concessions, sops and were even rehabilitated. All this was done informally and was based purely on trust. The big question that Raman’s column raises is, whether there was a breach of trust in Yakub Memon’s case.

INFORMAL ROUTE This becomes pertinent when we factor in several cases where intelligence agencies may be employing the informal route to bring back those wanted by the law like, for

instance, Lalit Modi. In fact, every now and then, one hears demands being raised to bring back Dawood Ibrahim and other criminals lodged in Pakistan. Since extradition from that country is virtually impossible, the only options are to capture them through a commando operation and run the risk of triggering a war with our neighbor or to work the back channels and make them surrender.

But after Yakub’s experience, any informal assurances made by negotiators—including that of a fair trial—may lack credibility.

Why, even those brought back from PoK under a formal arrangement approved by the government, are arrested on trumped-up charges after they have crossed the border.

Manisha Sethi’s book, Kafkaland—Prejudice, Law and Counter Terrorism, cites the illustrative example of 45-year-old Sayed Liyaqat Shah. His ordeal began in March 2013 when he was arrested at the Indo-Nepalese

SEEING REASON (L-R) Justice Markandey Katju calls Memon’s death sentence a travesty of justice; Former RAW chief AS Dulat says there’s no reason not to believe B Raman’s claims on Rediff.com

Was the informal understanding between Yakub Memon and B Raman at the time of his surrender never communicated to the investigating agencies? Or was this conveniently kept under wraps?

Anil Shakya

INDIA LEGAL January 15, 2016

51

Special Issue

LEAD/ Yakub Memon Case

“There was undue haste” Yakub Memon was hanged despite last-ditch efforts of civil rights lawyer Anand Grover and a few others.

Why was undue haste shown in carrying out the execution, he asks

BY Ajith Pillai communicated to the convict till the he final curtain came down final execution. The mercy petition on the Yakub Memon saga that was rejected by the president at 6.43 am on June 30 when on July 29 was the first one sent he was hanged at the Nagpur

by Yakub, although there was an Central Prison and buried later in earlier petition sent by his brother the day at Chandanwadi burial in 2013. grounds at Marine Lines, South Mumbai. But Yakub’s story did not end without a late night twist.

WRONG PERCEPTION At 2.30 am on June 30, a Grover says the 14-day window Supreme Court (SC) bench was should have been opened in all fairhastily constituted by the chief jusness to the convicted person. But tice of India. It heard a petition here “there was undoubtedly a filed by civil rights lawyers Anand sense of undue haste”, he says.

Grover, Prashant Bhushan and “The opportunity should have been Nitya Ramakrishnan, who pleaded given to challenge the president’s for a stay on the execution. The decision. What was the hurry all hearing continued till 4.16 am about? As it turned out, the haste when the apex court upheld the shown created a wrong perception death warrant. For many, it was among people about the manner in virtually a chronicle of an execution which the system finally acted.” This foretold once President Pranab is a view endorsed by several rights Mukherjee had rejected Yakub’s activists. mercy petition late on July 29.

When asked if the government Grover says he expected the had lost a key witness in Yakub, court to give Memon a 14-day who could have testified against reprieve. He told India Legal: “We Dawood Ibrahim and Tiger did not file a mercy petition as was Memon—the main accused in the wrongly reported. I was arguing for Bombay Blasts case—Grover says a 14-day stay so that the lawyers the question doesn’t arise. could challenge the decision of the “I don’t think the main accused president when he rejected Yakub will ever come back to India to be — Anand Grover Memon’s mercy petition. This is a tried here,” he says. matter of right given by the The lawyer is critical of the role Supreme Court in the well-known Shatrughan Chauhan played by sections of the media. He says: “The language case. But Yakub was, unfortunately, denied this right.” used against those who defended Yakub was truly conGrover was referring to the January 2014 SC judgement demnable. People like me were accused of protecting terrorby the then chief justice of India, P Sathasivam, in which he ists or fighting the case just for the money. The lynch mob had laid down guidelines for safeguarding the interests of mentality was promoted by press reports and by the TV death row convicts. The court had prescribed a 14-day channels. One must hold the media responsible for fuelling stay—from the time the rejection of the mercy petition was this mentality.”

T

“The media accused people like me of protecting terrorists or fighting the case just for the money. The lynch mob mentality was promoted by press reports and by the TV channels.”

52

January 15, 2016

of August 15

border and charged with plotting attacks on targets in Delhi during the Holi festival.

Shah was accompanied by his wife and daughter and was returning to India from PoK under the Rehabilitation and Surrender Policy of the J&K government, instituted three years ago. Under it, Indian citizens who had turned to militancy and had crossed the LoC could return to Kashmir once they declared their intent to lay down arms and return home.

Those opting to surrender and return are subjected to detailed checks by RAW, IB and the J&K police before their names are cleared. Shah was given the green signal after several months of scrutiny. But despite that, he was arrested by the Special Force of the Delhi police at the Sannauli check post, an entry point on the Indo-Nepal border. It was alleged that he was on the way to Delhi to pick up guns, ammunition, including hand grenades, and maps (indicating his targets) from a guest house in Old Delhi. The police charge was that he was being directed by his handler in Pakistan, who was coordinating the entire operation.

After the National Investigating Agency (NIA), which looks at terrorism-related cases, took over the investigation, it concluded that the police charge had no substance and had been cooked up. The guns and ammunitions were planted in the guest house by a police informer who was absconding. Shah was declared innocent in January 2015, almost two years after his arrest.

NOT COMMUNICATED? To come back to the Yakub Memon case, there are several imponderables. Was the informal understanding arrived at between him and Raman at the time of his surrender never communicated to the investigating agencies which took charge of him after he was “arrested” in Delhi? Or was this conveniently kept under wraps? Raman’s column suggests that the prosecution may have done so. To quote: “In their eagerness to obtain the death penalty, the fact that there were mitigating circumstances do not appear to have been highlighted.”

Justice PD Kode of the Mumbai TADA court, who pronounced Yakub’s death sen-

As the events unfolded Yakub Memon is the third son of Abdul Razak and Hanifa. He is the younger brother of Tiger Memon, the mastermind of the 1993 serial blasts, which killed 257 people and injured more than 700 in Mumbai.

Here’s a chronology of events leading to his hanging: 1994: August 5 Yakub arrested in Kathmandu by Nepal police 2006: September 12 Four members of the Memon family held guilty

by TADA court. The court acquits three, sentences 12 to death and gives life term to 20 2007: July 27 TADA court pronounces death sentence for Yakub 2011: November 1 SC starts hearing appeals from convicts, including Yakub, as well as the government 2013: March 21 SC upholds death sentence of Yakub and commutes death sentences of 10 convicts to life imprisonment 2014: May 21 President rejects mercy plea filed by Yakub’s brother

2015: April 9 SC nixes the review petition of Yakub 2015: April 29 Special court in Mumbai fixes July 30 as execution day 2015: July 21 SC rejects Yakub’s curative petition. Yakub sends his mercy appeal to the governor 2015: July 23-29 Yakub moves SC seeking stay of execution.

Two-judge bench split, refers it to CJI for consulting a larger bench, which dismisses plea.

2015: July 29-30 Yakub files a fresh mercy petition before president and Maharashtra governor.

Governor rejects petition. President takes close look at case, seeks opinion of legal and constitutional experts. Finally, goes by advice of home ministry and rejects it

2015: July 30 Lawyers knock CJI HL Dattu’s doors in the middle of the night, convince him that the matter needed one last hearing 2015: July 30 (3.16 am-4.16 am) In one of the rare hearings in the apex court’s history, a three-judge SC bench headed by Justice Dipak Mishra meets again in SC. Yakub’s lawyers plead that he could not be hanged at least for 14 days after his mercy plea was rejected by the president, as per SC guidelines. But the bench stands by its earlier judgment and rejects the petition 2015: July 30 (6.43 am): Memon hanged

tence, says that he was never informed of any “so-called surrender” or any agreement arrived at. This brings up the other question —why did the defense lawyers refrain from bringing up this aspect in court? Some legal experts point out that they may not have because there was no evidence to prove that anything was agreed upon.

Does Raman’s posthumously published column constitute any evidence? Perhaps it doesn’t, but it provides proof, in a manner of speaking, of a certain factor that mysteriously didn’t figure in the quantum of punishment that Yakub Memon was given. IL INDIA LEGAL January 15, 2016

53

Special Issue

LEAD/ Maggi Noodles Row

Nestle’s instant infamy

Maggi Noodles is under the spotlight for high levels of lead and MSG being found in samples.

Has Nestle flouted food safety norms in order to capture the `2,700 crore instant noodle market in India?

By Dinesh C Sharma 54

January 15, 2016

F

OR a whole generation of young Indians, Maggi, the instant noodle brand of Swiss multinational Nestle, is almost in the same category as the Indian staple diet of dal, chawal and roti. That’s why the millennial generation was caught in a tizzy when reports of Maggi flouting food safety norms erupted.

Emotions ranged from disbelief and anger to conspiracy and vendetta, with one digital news website declaring that “Maggi disappearing is less likely to have a positive impact and more an apocalyptic outcome”. The “two minute” noodle brand has ruled the Indian processed food market for three decades with aggressive marketing and emotions of “love, bonding

of June 30

NO FAST WAY OUT Madhuri Dixit’s endorsement of Maggi Oats Noodles had landed her in legal soup

Those micro trouble makers MSG Monosodium

and togetherness” peddled through television spots. With the contamination charges slapped on its flagship brand, Nestle India has been forced to defend its carefully crafted image. Besides perception, what is at stake for the company is its market share —close to 70 per cent—in the `2,700 crore instant noodle market in India. Maggi accounts for almost a third of Nestle India’s sales. Besides business and perception, this episode will be a major test for India’s still-evolving food standard and regulatory system.

DANGEROUS LEVELS The controversy began with Uttar Pradesh Food Safety and Drug Administration finding traces of toxic heavy metal lead, as well as high levels of added monosodium glutamate (MSG), a taste enhancer, during routine tests on samples picked up from local markets.

The lead concentration was found to be 17.2 parts per million (ppm), which is nearly seven times the maximum permissible limit.

The acceptable limit of lead ranges between 0.01 ppm and 2.5 ppm, as notified in the Food Products Standards and Food Additives Regulations, 2011, notified under the Food Safety and Standards Act of 2006.

Opinion is divided on the source of lead and MSG in Maggi samples. Nestle claims official tests may have confused naturally occurring glutamate from raw materials like onions, peas and tomato with commercially added MSG. The lead content, it says, is

Glutamate (MSG) is the sodium salt of glutamic acid.

Glutamate is an amino acid which especially occurs in foods with high protein content such as meat, fish and dairy products. Foods famous for their flavors like mushroom and tomatoes contain high levels of glutamate.

It is also produced in human body and plays an important role in normal body functioning.

For long, MSG was extracted from natural protein-rich foods such as seaweed. Today, it is made in an industrial fermentation process.

There’s a debate over its illeffects, but the symptoms are said to include burning sensations along the back of the neck, chest tightness, nausea and sweating.

Using MSG can help to reduce the need for sodium (salt) in a recipe by 20 to 40% while maintaining flavor.

Companies add MSG to foods because it helps enhance taste and creates the illusion of being nutritious. This enables the manufacturer to add less of real food.

Lead Lead

is found naturally in a significant quantity in the earth crust. Characteristically, it’s a tasteless and odorless element and is usually found in all parts of the environment.

Lead is found in drinking water as it is used in plumbing, it gets into the water table through the soil and also due to contamination due to waste water from industries that use lead.

Food grains may contain lead if they are overexposed to dust containing lead.

The amount of lead in a dish is determined by its ingredients. For example, acid foods and drinks will leach lead out of dishes much faster than non-acid foods. Soy sauce, orange juice, apple sauce, coffee, tea, cola drinks, and salad dressing are examples of acid foods.

Excessive content of lead may cause neurological disorders, reproductive problems, diminished intelligence and numerous other ills.

— Ashish Mehta

INDIA LEGAL January 15, 2016

55

Special Issue

LEAD/ Maggi Noodles Row

From Amitabh Bachchan to common housewives, everyone latched on to the fast food revolution ushered in by Maggi Noddles.

Ban Upheld NESTLE India on June 12 filed a petition in the Bombay High Court against the order of FSSAI and Food and Drug Administration, Maharashtra, banning the sale, production and distribution of Maggi.

However, the court upheld the ban till its next hearing on June 30, and ordered the center, state and FSSAI to file their reply to Nestle’s petition within two weeks.

56

January 15, 2016

regularly monitored as part of quality control processes, including testing by accredited laboratories, and has been found to be within permissible limits.

“Possible sources of lead in any processed food product are mainly water used in processing, indirect sources like spices and equipment used in production. Lead could also come from the packaging material.

Whatever be the source, the manufacturer is responsible for the final product,” says Dr Thuppil Venkatesh, head of Bangalore-based National Referral Centre for Lead Poisoning in India. These elevated levels of lead in Maggi, he says, is a serious issue since growing children—who are target of all junk food advertising—are most vulnerable to serious health impacts of lead exposure. “Detailed and exhaustive studies done by our center on lead content in various food ingredients and processed food have found it both in branded and unbranded products,” he adds.

While there is a permissible limit for lead in processed food, the 2011 rules state that

MSG cannot be added to “pastas and noodles”, as well as any food for use by infants below 12 months. For other processed foods, use of MSG is allowed, subject to Good Manufacturing Practices and under proper label declaration, as provided in Food Safety and Standards (Packaging and Labeling) Regulations, 2011. On toxic metal contamination, the law states: “No article of food shall contain any contaminant, naturally occurring toxic substances or toxins or hormone or heavy metals in excess of such quantities as may be specified by regulations.”

Centre for Science and Environment (CSE) has welcomed the food authorities’ initiative in testing processed food for contaminants like heavy metals. Chandra Bhushan, CSE’s deputy director general and head of its food safety programme, says: “It’s an issue of public health and public good, hence, there is no room for any compromise. It’s great that for the first time, processed food is being tested for contaminants like heavy metals by our food safety authorities.” CSE’s Pollution Monitoring Lab has tested a wide range of food products—from bottled water and soft drinks to honey and chicken—and exposed their contamination by pesticides, antibiotics and heavy metals.

The UP food regulator found Nestle violating the food safety law on two counts— presence of MSG and lead beyond permissi-

of June 30

Dream merchants Companies that violate Section 24 of FSS Act, 2006, and FSS (Packaging and Labelling) Regulation, 2011

ble limits. The state authorities have filed a case against the company in the court of Additional Chief Judicial Magistrate in Barabanki from where the samples were picked up.

OTHERS OF ILK This is the first time a government regulator has found a leading manufacturer of a popular consumer product at fault. Earlier too, food companies were found to violate labeling and other norms, but their products were tested by action groups like CSE. Food safety authorities had then turned a blind eye and no prosecutions followed. In the present case, Nestle withdrew two lakh packets of Maggi from UP as they were being sold beyond the “best before use” date, while denying charges of excess lead and MSG in its product.

The UP case has had a domino effect, with food authorities in several other states testing Maggi packets and deciding to prosecute the manufacturer. The central authority—Food Safety and Standards Authority of India (FSSAI)—too has begun its own investigation. “The food safety law empowers state food authorities to proceed against food companies independently for violations of its provisions. When the prosecution begins, these cases may be clubbed for common hearing at the

Name of the product

Misleading claims made by companies

COMPLAN

Its advertisement claims that consuming the product can make a consumer grow two times faster.

COMPLAN MEMORY

The ad claims that Complan Memory helps to improve memory. The product label shows students studying, which could mislead the public into thinking that this health drink will help them become good in studies.

BOOST

The claim that “Boost provides three times more stamina than sadharan chocolate drink”.

HORLICKS

Its advertisement claims that children consuming this product become taller, stronger and sharper.

EMAMI-HEALTHY AND TASTY SOYABEAN OIL

The logo on the product says “7 stage European refining technology: Suraksha Shakti”.

SAFFOLA

The use of heart symbol and the claim “the heart of a healthy family” is misleading.

It makes claims like “health and vigor” and “cholesENGINE MUSTARD OIL terol 0g” and that research shows that people who eat low fat breakfast like Kellogg’s Special K tend KELLOGS SPECIAL K to be slimmer than those who don’t.

BRITANNIA NUTRICHOICE BISCUITS

Its advertisements make claims like “no added sugar”, “complex carbohydrates”

BOURNVITA LITTLE CHAMPS

The manufacturer has claimed presence of DHA in the product with a host of benefits, which are not proven.

NUTRILITE

The claim that if you are not taking a truly adequate and well-balanced diet, nutrilite is convenient supplement you have been looking for.

“Each tablet supplies 13 vitamins, 11 minerals and phytofactors plant compound from nutrilite’s exclusive plant concentrate,” it claims.

Source: Food Safety and Standards Authority of India, Ministry of Health and Family Welfare

INDIA LEGAL January 15, 2016

57

Special Issue

LEAD/ Maggi Noodles Row

Global lessons

T

he Maggi controversy puts a big question mark on the efficiency of FSSAI, an agency of The Ministry of Health and Family Welfare, Government of India, which is responsible for regulating and supervising food safety. Much is left to be desired in its testing process, right from the frequency of checks to lack of standard certification for most of the food products.

When one compares the Indian agency with those in developed countries like Japan and the US, one realizes that there is a lot to be learnt. In Japan, The Ministry of Agriculture, Forestry and Fisheries (MAFF) has come up with the Japan Agriculture Standard (JAS), under which MAFF provides five different types of certifica-

The Latest...

Maggi returned on stores in early November following a Bombay High Court order lifting the ban.

But food regulator FSSAI was quick to move the Supreme Court against the High Court order, questioning samples provided for testing in government labs and emphasizing that these should have been picked up on a random basis. The Supreme Court has directed Nestle India, Maggi’s manufacturer, to file its reply. The FMCG company will file it by January 5, 2016.

58

January 15, 2016

tions, out of which four are voluntary and one is mandatory, covering most of the food products available in the market (both local and imported products).

These certificates are provided after inspection by MAFF as per the standards set by the government. Food processing companies are allowed to put the JAS mark on their products after passing rigorous tests. Companies opt for the JAS mark as it proclaims that the product is healthy and can be bought without worrying about its quality, giving them an edge over their competitors.

The Food and Drug Administration (FDA) in the US has a reputation for being very and effective in maintaining food quality and standards. The Food

instance of high courts or the Supreme Court or if the company files a petition for doing so,” explains Bejon Misra, a consumer activist and former member of FSSAI. Nestle could also face a class action suit if a complaint is filed before the National Consumer Disputes Redressal Commission.

WHAT’S UP, NESTLE? Nestle has earlier faced rough weather for violating the Infant Milk Substitutes (IMS) Act, which prohibits promotion or sale of infant milk substitutes. “Recently, was booked by health authorities in Haryana for violating labeling provisions of the IMS Act. In a similar case earlier, Nestle was found guilty by the additional deputy commissioner of Rohtak for misbranding baby foods with health claims and for violating labeling norms under the Food Safety and Standards Act,” reveals Dr JP Dadhich, national convener of the Breastfeeding Promotion Network of India.

This comes to the role of a celebrity endorsing an unhealthy food product. Is he or she responsible for health claims made in an advertisement? The answer is yes, according to food safety authorities in Uttar Pradesh who have issued a notice to Madhuri Dixit, asking

Safety Modernization Act of 2010 (FSMA), gives FDA powers like mandatory recall and mandatory inspection of domestic facilities as well as of facilities based in other countries which export goods to the US and placing responsibilities on the food producers and processors.

In the international market, companies sometimes go for a third-party certification by independent organisations like NSF to show that their products are safe. NSF certification is considered reliable not just because they are strict with quality checks, but because they do unannounced follow-up inspections to check if the quality is being maintained or not.

—Priyvrat Singh Chouhan

how Maggi noodles endorsed by her could be considered nutritious and what was the basis for making such a claim. While Madhuri said on Twitter: “Nestle has reassured me that they adhere to stringent testing for quality and safety,” the notice said it was a violation of “advisory on misbranding and misleading claims” in food adverts issued by FSSAI in 2011.

The advisory says: “The various false claims made by the Food Business Operator about food articles and consequent violation, if any, are punishable under the provisions of Food Safety and Standards Act, 2006.... Misleading advertisement related to food items is imputed with malafide intent on the part of the person making the claim and is normally made to misguide a consumer to purchase the food item without disclosing the complete details on the advertisement.” However, it is unclear if the guidelines also cover celebrities who feature in ads or just the manufacturer.

Food is an emotive issue for consumers, and companies making them and stars endorsing them would do well to keep ethical standards about it. IL

—The writer is Fellow, Centre for Media Studies, New Delhi

of

CALENDAR 2016

HOLIDAYS Name of Holiday

Month & date

Days of the week

New Year Holiday

January 1

Friday

Local Holiday

January 25

Monday

Republic Day

January 26

Tuesday

Maha Shivaratri

March 7

Monday

Holi Holidays & ` Good Friday

March 21 to March 26

Monday to Saturday

Ram Navami

April 15

Friday

Mahavir Jayanti

April 20

Wednesday

Idu’l Fitr

July 6

Wednesday

Independence Day

August 15

Monday

Raksha Bandhan

August 18

Thursday

Local Holiday

August 19

Friday

Janamashtami

August 25

Thursday

Id-ul-Zuha (Bakrid)

September 12

Monday

Dussehra Holidays & Muharram

`October 10 to October 15

Monday to Saturday

Diwali Holidays

October 29 to November 4

Saturday to Friday

Guru Nanak’s Birthday

November 14

Monday

Milad-Un-Nabi or Id-E-Milad

December 13

Tuesday

Christmas & New Year Holidays

December 19 to January 1, 2017

Monday to Saturday

1. Sundays and Supreme Court Holidays are shown in red. Orange colour squares indicate the actual date of festivals.

2. Buddha Purnima and Mahatma Gandhi’s Birthday which fall on 21st May and 2nd October, 2016 have not been shown separately as these fall on Saturday during Summer Vacation and Sunday respectively.

3. Holi, Dussehra and Diwali actually fall on Thursday, the 24th March, Tuesday, the 11th October and Sunday, the 30th October, 2016 respectively.

4. The Summer Vacation of the Court will commence on Monday, the 16th May, 2016 and the Court will resume its sitting on Wednesday, the 29th June, 2016. The Summer Vacation is shaded in orange. The Registry of the Court will, however, be functioning throughout the vacation except on Saturdays, Sundays and Holidays.

5. Idu’l Fitr, Idu’l Zuha (Bakrid), Muharram and Milad-un-Nabi or Id-E-Milad which fall on Wednesday, the 6th July; Monday, the 12th September; Wednesday, the 12th October and Tuesday, the 13th December, 2016 respectively are subject to change depending upon the visibility of the Moon.

6. During the Christmas/ New Year Holidays, the Registry will remain closed from 25th December, 2016 to 1st January, 2017 (Both days inclusive).

By Order V.S.R Avadhani Secretary General

Special Issue

POLITICS/ Delhi Imbroglio

Rebel without a pause The turf tussle between Chief Minister Arvind Kejriwal and Lt Governor Najeeb Jung has no winners and throws up the question: Who Rules Delhi?

By Dilip Bobb

M

AVERICK, megalomaniac, autocrat, Quixotic, crusader, Arvind Kejriwal has attracted all these labels over the years, and his latest clash with Delhi Lt Governor Najeeb Jung should throw up a few more. The clash, of egos and authority has dragged in the president and prime minister too, and threatens to escalate into an ugly political face-off which involves a question that has vexed legal and constitutional experts, namely, Who Rules Delhi?

It is, at its heart, a confrontation that exposes the capital city as literally an unruly state, with some powers vested in the center, namely the Lt Governor, while leaving the chief minister with no control over key elements of governance. The latest episode is to do with the appointment of senior bureaucrats, including the chief secretary, one of whom was, in a bizarre manifestation of the battle, locked out of his own office.

At one level, it has given Kejriwal the

60

January 15, 2016

image of a man constantly in search of headlines, even if they make him look more like Don Quixote tilting at imaginary windmills, rather than the man who made a host of ambitious pledges (“a New Delhi”) when he swept to a historic election earlier this year, stopping the Modi juggernaut in its tracks.

Since then, he has faced an embarrassing internal rebellion in the ranks of his Aam Aadmi Party, initiated a running battle with Delhi’s police commissioner, diluted his reformist image by taking on the media and threatening them with defamation suits, and now, ensuring that he remains a rebel without a pause in taking on the Lt Governor, who represents the center.

The current battle involves Jung’s appointment of an acting chief secretary for 10 days while the incumbent was away on vacation. Kejriwal opposed the move, claiming the bureaucrat, Shakuntala Gamlin, was too close to two power distribution companies (Discoms) that the chief minister sees as blood-sucking capitalists. The Lt Governor refused to budge and declared void an attempt by Kejriwal to transfer the bureaucrat who issued Gamlin’s appointment order.

Frustrated, Kejriwal says he will keep a “close eye” on Gamlin’s activities during the period to ensure she doesn’t make any mischief since “the Modi government wants to fail us”.

The center, on its part, played the racist card, claiming Kejriwal was insulting Gamlin, a woman from the North East (and wife of a former chief minister). To reinforce the message, the BJP government deployed Kiren Rijiju, Minister of State for Home Affairs, who is from Arunachal Pradesh, to make the argument. Meanwhile, a bizarre twist was added to the tale when the principal secretary (services) who had signed the order on Gamlin, was locked out of his office and replaced with Kejriwal’s secretary, Rajendra Kumar.

T

here are multiple issues at play in this sorry saga. First is Kejriwal himself and his perpetual conspiracy theories which ensure that his rule—and role— becomes an “us-versus-them” battle even when they are no “thems”. Then, there is his conspiracy theory regarding the Discoms and

of June 15

the so-called “comfort letters” that Gamlin was to issue, to help the distribution companies get a loan, a fairly routine process.

Then, there is the larger question, namely the chief minister’s ability to make appointments and transfers in Delhi. The fact that Delhi is a Union Territory makes this an area of ambiguity. The LG claims that senior bureaucratic appointments are under his authority and what Kejriwal was trying to do in appointing officials of his choice “was against established rules and procedures”.

Since coming to power in February, close to 100 officials have been transferred by the AAP government, but those were relatively junior bureaucrats.

Kejriwal’s first choice for chief secretary, Ramesh Negi, was turned down by the center and led to some angry exchanges with Home Minister Rajnath Singh. On that occasion, Kejriwal agreed to the center’s suggested choice, KK Sharma, who was shifted from Goa. This is the first time a bureaucratic

Kejriwal’s problem, as seen by many, is that his default setting is that of an opposition leader, even when he is in power. He is making more enemies than friends. appointment, that too a temporary posting, has descended to such an unseemly turf battle. In fact, the turf tussle had begun within days of Kejriwal coming to power when he instructed officials to route all important files through him and not the L-G, a move that was promptly rejected by Jung.

Now, Kejriwal has issued orders saying any instructions from the L-G, written or verbal, should be routed through the concerned minister and the CM, in order to ensure that bureaucrats do not bypass the AAP government.

Logically, it seems obvious that the chief minister should have a say in senior bureaucratic appointments. But the problem is to

PORTENT OF POWER STRUGGLE Arvind Kejriwal waves to the crowd at his swearingin ceremony in February, as LG Najeeb Jung seems absorbed elsewhere

INDIA LEGAL January 15, 2016

61

Special Issue

POLITICS/ Delhi Imbroglio

do with Delhi’s peculiar administrative arrangement under which the center has a major say in how Delhi is run. There is an obvious—the conspiracy theorists would say deliberate—lack of clarity on the division of power between the state and the center as far as Delhi is concerned.

E

ven former chief minister Sheila Dixit had pushed for full statehood, especially control of Delhi police, which comes under the home ministry. This was during the Congress-led UPA reign.

That it failed is because no government at the center wants to give up on its jurisdiction, loosely based on the fact that the city is the capital and home to so many VIPs. Partial statehood to Delhi should have come with clear demarcation of powers and responsibilities; and executive and legislative jurisdiction. As things stand, the division of responsibility is left vague, paving the way for frequent confrontations.

The current problem is Kejriwal and his one-man-show governance model which is based on his perception that he is always right and everyone else is conspiring to

The battle rages on...

CAUGHT IN THE CROSSFIRE (Clockwise from above) Bureaucrat Shakuntala Gamlin’s appointment became the bone of contention between Kejriwal and Jung Rajendra Kumar was made principal secretary (services); Former chief minister Sheila Dixit had also asked for full statehood and control over Delhi police

62

January 15, 2016

THE tussle between the Arvind Kejriwalled Delhi government on the one hand and Lt Governor Najeeb Jung and the center on the other, over powers solely resting with L-G on transfer postings of bureaucrats in Delhi continued unabated.

While the center had made its intentions clear by issuing a notification on the issue, which said in no uncertain terms that the L-G was the “boss” and could ignore the state government's opinion if he felt like it, Kejriwal looked all set to take the center head on, demanding that an elected government could not be bulldozed by the center.

The issue threatened to become a constitutional crisis, with none yielding ground, and the ball was in the president’s court to settle the matter once and for all.

The Delhi Chief Minister got a major boost when the Delhi High Court overturned the center’s line that the Anti-

Corruption Bureau set up by the Delhi government had no powers to prosecute government employees caught indulging in corruption.

This may open a Pandora's Box and stir the statehood debate, especially when curbing corruption has been one of the leitmotifs of the Kejriwal government.

The center is girding up to challenge the issue in the Supreme Court.

Meanwhile, Kejriwal had convened a two-day emergency assembly session of the Delhi assembly to pass resolutions on full statehood and center's notification on bureaucratic postings and transfers.

On May 25 , the day Aam Admi Party marked its 100 days in office by organizing a mega public meeting in the Central Park of Delhi, Kejriwal made his government’s intentions clear by ordering the transfer of nine officers from various departments, including two IAS officers.

In the meeting, he hit out at the center calling its attitude “dictatorial” and lauded the high court’s stand on the issue.

of June 15

DIVIDED OPINION (L-R) Constitutional expert SC Kashyap says the LG is acting as per law; Senior advocate Rajeev Dhawan says Jung has exceeded his brief

The latest… bring his government down. All other parties in power in Delhi, including the BJP, opted to avoid a conflict and bought peace with the central government. Former BJP Delhi chief minister Madan Lal Khurana used to say that he was like a chief secretary and the Lt Governor had all the powers. Kejriwal is made of sterner stuff. His aggressiveness and authoritarian ways are often unpalatable but that is his inherent style of functioning.

Which is why his battle to give the state government more powers carries more weight than any of his predecessors.

T

he truth is that Delhi, for all the power and architectural grandeur, is poorly governed, largely because of the multiplicity of authority. When there is an opposition government in the state, the center can use its special constitutional powers to embarrass the state government. Finance Minister Arun Jaitley weighed in on the current controversy when he stated: “The people of Delhi experimented with a new party, but it’s a very costly experiment. Governance is not AAP’s political agenda.”

Legal opinion is bitterly divided on the issue of CM versus L-G. One section of legal luminaries, led by senior advocate Rajeev Dhawan, feels that the Lt Governor exceeded his authority by interfering in bureaucratic

appointments. There is an opposing view, expressed by constitutional expert SC Kashyap, who said: “The Union territory is administered by the Lt Governor. In case of service matters, it is the LG’s call.”

As the battle rages, governance suffers.

Caught in the crossfire, bureaucrats are ducking for cover. At least 45 officers have applied for leave, others have sought transfers while the remainder are stalling on decisions, fearing for their careers. The man who signed Gamlin’s appointment was locked out of his office and has no work.

If Kejriwal’s tantrums can help the state find a long-term solution to a festering problem, it would be a major victory. Sadly, with a BJP government at the center, that is unlikely to happen. Modi and the BJP have not forgotten the slap in the electoral face delivered

by Delhi voters when they chose to give the AAP a majority in the assembly.

More importantly, the fracas has devalued Kejriwal’s image in the eyes of the public.

Kejriwal’s aggressiveness and authoritarian ways are often unpalatable but that is his inherent style of functioning. Which is why his battle to give the state government more powers carries more weight than any of his predecessors.

Ultimately, the turf battle between him and Jung has no winners, everyone loses. IL

The CBI raid in the Delhi Secretariat enraged CM Arvind Kejriwal. The center and the CBI claimed the raid on the office of Delhi’s Principal Secretary Rajendra Kumar was done to probe corruption charges against him. But, Kejriwal maintains that his office was also searched as there was a file pertaining to the inquiry into DDCA. The CM wanted to set up a panel to probe charges of irregularities in DDCA, when it was headed by FM Arun Jaitley. BJP MP Kirti Azad too leveled the same charges against Jaitley.

The Congress demanded his resignation. Later, Jaitley filed defamation cases against Kejriwal and five AAP leaders.

The Delhi assembly notified the inquiry commission, but it was yet to get the LG’s approval. This may open up another tussle between the center and the AAP government.

Meanwhile, the BJP suspended Azad for anti-party activities.

INDIA LEGAL January 15, 2016

63

Special Issue

LEGAL EYE/ Muslim Personal Law/Survey

Surprising Revelations A survey among Muslim women in 10 states threw up startling results. Almost 92 percent wanted talaq to be banned. With an NGO publishing a model nikah namah, are the signs of change on the horizon?

By Ajith Pillai

T

HAT the Muslim Personal Law is gender unjust and discriminates against women is wellknown and has been articulated on several intellectual platforms. But now, perhaps for the first time, an extensive survey has been conducted to give voice to ordinary and marginalized Muslim women about a law that has an important bearing on their marital and adult life. The outcome of the study is not only revealing but should make Muslims as well as lawmakers sit up and introspect.

The survey was conducted among 4,710 Muslim women across 10 states between July and December 2013 by the Bharatiya Muslim Mahila Andolan (BMMA), which describes itself as a “secular, autonomous and rightsbased Muslim women’s movement”.

VITAL QUESTIONS Among the questions asked were: what should be the minimum age for marriage; Photos: Anil Shakya

64

January 15, 2016

of September 15

should men be allowed to keep more than one wife and should the oral system of divorce or triple talaq, which bypasses the established legal system, be banned.

The results of the survey reflect that an overwhelming number of Muslim women are not only against what they feel is an archaic law but they also want the government to codify a new legislation which is non-discriminatory, gender sensitive and relevant to modern times.

The BMMA operates in 12 states and for the survey, its activists and volunteers reached out to respondents in urban and semi-urban centers in Maharashtra, Gujarat, Bihar, Rajasthan, Madhya Pradesh, Jharkhand, Odisha, West Bengal, Karnataka and Tamil Nadu.

Answers to the BMMA survey reflect the frustration among Muslim women (see graphs) with certain practices followed in the name of the Personal Law. For example, as many as 92.1 percent respondents were against the unilateral or oral divorce system or talaq. They wanted it banned. A sizeable majority, 88.5 percent, wanted the qazi who sends the notice of oral divorce to be punished. But what came as a surprise was that 95.5 percent of those polled had not even heard about the All India Muslim Personal Law Board (AIMPLB) which claims to be a representative body of Muslims in the country.

Zakia Soman, one of the co-founders of BMMA, said: “The AIMPLB is only an NGO like any of us. It has simply been given too much importance by the media and politicians. The average Muslim does not recognize it or even know of its existence.” Indeed, for the record, the AIMPLB is a non-government body set up in 1973 “to adopt suitable strategies for the protection and continued applicability of Muslim Personal Law”. But the popular perception is that the organization is a quasi-official one whose reactions must be sought on every Muslim issue.

DON’T TAMPER The AIMPLB, on its part, has been critical of the survey and the conclusions drawn, including the one calling for a ban on talaq.

Maulana Abdul Raheem Qureshi, spokesper-

What came as a surprise in the survey was that 95.5 percent of those polled had not even heard about the All India Muslim Personal Law Board. son of the AIMPLB, reportedly had this response: “Which sane Muslim in the country is not aware of the AIMPLB? We are not in favor of tampering with Muslim laws. The Islamic system gives a way out of a difficult marriage—it allows couples a chance of coming out of a bad relationship.” When contacted by India legal, a representative of the AIMPLB refused to elaborate further, saying that he would not like to comment without seeing the survey and could not go by a few sketchy media reports.

That apart, how much credibility should one give to the survey and the organization that conducted it? When contacted by India Legal, activists who work with Muslim women in Gujarat, Mumbai and Delhi vouched for the genuineness of the BMMA, although they differed with it on ideological grounds.

“They have fought against communal forces and have taken up issues that affect the lives of Muslim women. So we should not be dismissive of its survey. After all, it confirms that women are fed up with the patriarchy that rules the Muslim clergy and the Personal Law. But will the data be taken as seriously as, say, the study conducted by the Sachar Commission? Was the same rigueur INDIA LEGAL January 15, 2016

65

Special Issue

LEGAL EYE/ Muslim Personal Law/Survey

92.1% Muslim Women Want Triple Talaq Banned AROUND 4,710 adult Muslim women, from the middle and lower middle class, took part in the survey conducted between July-December 2013, by the Bharatiya Muslim Mahila Andolan (BMMA).

Responses were elicited from urban and semi-urban centers in 10 states—Maharashtra, Gujarat, Bihar, Rajasthan, Madhya Pradesh, Jharkhand, Odisha, West Bengal, Karnataka and Tamil Nadu.

A majority of 78.7 percent women were homemakers. 12.7 percent respondents were employed in the unorganized sector, 7.9 percent in the organized sector and others, 0.7 percent. The annual income of 73.1 percent was below ` 50,000, of 18.3 percent between ` 50,000 and `1 lakh, and of 8.6 percent above `1 lakh. The respondents included 87.6 percent Sunnis, and 4.1 percent Shias. 8.3 percent claimed they were unaware of which sect they belonged to.

followed in collating the findings? And is codifying the Personal Law of utmost priority today or are there more urgent issues that need to be addressed?” wonders an activist.

She says that the BMMA is unlike other progressive women’s organizations in that it swears by the Quran and feels that any change should be within the framework of the Holy Book. According to another activist, it “holds the Quran in one hand and the Indian constitution in the other”. It believes that the Quran is just and fair to women and that it is its warped interpretation that has

66

January 15, 2016

The Questionnaire Have you heard of the All India Muslim Personal Law Board

Yes 4.5% No 95.5% Should there be a legal ban on the practice of unilateral triple divorce or talaq?

Yes 92.1% No 7.9% Should polygamy be allowed after consent from first wife?

Yes 27.1% No 72.9%

caused so much mischief.

Talking about the survey, Soman told India Legal: “It became possible because of our volunteers and team members. They showed the patience to interact with the women and draw them out to answer several sensitive questions. It took us six months to collect the responses.” She says there was nothing political in the survey or the timing of its release in the second week of August. “The survey was carried out in 2013 and it took us time to collate the data and also to finalize the report that accompanies it,” she says.

of September 15

Should the government help the community to codify its personal laws?

Should polygamy be allowed if first wife is terminally ill?

Yes 37.2%

Yes 88.9%

No 62.8%

No 1.4% Don’t know 9.7%

What should be the punishment for a man who unilaterally divorces his wife?

Put behind bars 51.4% Pay compensation 36.2% Pay fine 12.4%

Should religious leaders support Muslim women’s demand for codification of laws?

Yes 86.7% No 3.4%

Should arbitration be made mandatory before divorce is finalized?

Yes 93% No 7%

Don’t know 9.9% Should Darul Qaza/ qazis come under government regulation?

Yes 89.5% Should husband take the permission of the court before second marriage?

Yes 75.5% No 24.5% Should the qazi who sends the notice of unilateral divorce be punished?

No 3.4% Don’t know 7.1% Will codification help Muslim women get justice?

Yes 88.5%

Yes 83.3% No 2.8%

No 11.5%

Don’t know 13.9% Lalit Khitoliya

UNFAIR TO WOMEN In the report, Seeking Justice Within the Family by Dr Noorjehan Safia Niaz and Zakia Soman, the authors point to what they feel is the crux of the problem. To quote: “The Shariat (Islamic laws based on the Quran), as practiced in different parts of the country are subject to multiple interpretations and misrepresentations which more often than not are unfair to women. Often the injunctions in the Quran are violated in the name of the Shariat.... It is not difficult to guess as to what is the perspective and understanding of

some of the men who dispense justice at the Shariat courts across the country! Most of the time the verdicts in family matters end up being unfairly pro-men and anti-women.

These can hardly be said to be based on Quranic injunctions.”

The way forward that the BMMA has come up with, after consultations with women from various strata of society as well as legal experts and social activists, is to work within the framework of the Muslim religion and push for a law that is Quran compliant and yet, without the inadequacies and INDIA LEGAL January 15, 2016

67

Special Issue

LEGAL EYE/ Muslim Personal Law/Survey

Law Unto Itself Instances of flawed notions of right and wrong, with horrifying results

M

USLIM Personal Law in India is based on the interpretations of Shariat (Islamic laws) and can vary from place to place and from person to person. It largely deals with marriage and family matters, including divorce, custody of children, inheritance of property, etc.

Since it is not codified, women activists complain that the many interpretations of Shariat laws have been extremely patriarchal and biased towards men. It is also alleged that by invoking the Shariat to justify arbitrary interpretations, women have been denied their rights spelt out in the Quran. The Shariat, liberal Muslims point out, is man-made and not divine. But its divinity is invoked to justify unjust acts like triple talaq.

It was in the post-1857 era that the British introduced laws to reform society. In keeping with its divide and rule policy, separate rules were framed for Hindus and Muslims. For the latter, two laws were enacted —Shariah Application Act, 1937, and the Dissolution of Muslim Marriage Act, 1939.

To put it in a nutshell, the first merely stated that Shariat laws will govern all Muslims. It did not go into specifics but left it to the interpretation of Shariat courts manned by clerics or those given the task of interpreting. The second law empowered women by giving them the right to opt out of a bad marriage on nine counts. Divorce was earlier banned for Muslim women and led to several conversions to other religions to dissolve their marriages.

In post-Independent India, no changes were made. It was the Shah Bano case which created a storm in 1985. The woman from Indore was divorced by her husband in 1978 under the Muslim Personal law. But she approached the courts for maintenance. The case reached the Supreme Court, which ruled in 1985 that under Section 125 of the CrPC, Shah Bano be paid maintenance of TURNING POINT `500 per month by her husband.

Shah Bano’s case was a This led to outrage among the watershed moment for Muslims Muslim community and the Congress government under Rajiv Gandhi buckled under pressure and passed the Muslim Women (Protection of Rights on Divorce) Act 1986, which virtually overturned the apex court decision.

Under it, the husband is liable to pay alimony for three months after the divorce, following which the woman has to turn to her relatives for financial support. In case they fail to help, the court can order the Wakf Board or the state to provide for the woman and her children. The constitutional validity of the 1986 Act was challenged in 2001 in the Supreme Court. Shariat laws have no legal binding in India and Shariat courts can do nothing more than advise those who approach it. Fatwas passed by them are also mere advisories.

68

January 15, 2016

inequalities that the Personal Law has in its current form. A draft Muslim Family Law has already been circulated. “We plan to take it up with the government and with the people. We want the law codified,” says Zakia.

The BMMA has also formulated and published a model nikah namah or marriage contract, which, in contrast to the ones generally used in India, safeguards the rights of both spouses, and is fully in accordance with the Quran. It was framed by a team of Muslim women scholars with the help of the well-known Islamic scholar, the late Dr Asghar Ali Engineer. Several marriages, according to the BMMA, have been conducted in Maharashtra and Gujarat, using this nikah namah.

It remains to be seen if the BMMA’s campaign for a codified Muslim Personal Law will overcome resistance from the clergy and the powerful conservative political lobby within the community.

One issue that the lobby raises is the word “Bharatiya” in the full form of BMMA. But the organization is clear that “Bharatiya” means Indian and it does not believe in allowing Hindutva elements to monopolize the term. Zakia also maintains that she and others associated with the organization are strongly opposed to Hindutva oriented politics and will not allow their campaign to be exploited by vested interests. IL

of

CALENDAR 2016

Special Issue

LEGAL EYE/ State Law Officers

Money down the Drain In a startling revelation, the Supreme Court has found that states are spending huge amounts on law officers without proper systems being put in place. Loyalty, more than merit, is amply rewarded

By Vipin Pubby in Chandigarh

T

HE largesse doled out by state governments has come under scrutiny. This generosity by way of arbitrary appointments of law officers to deal with cases relating to states in high courts has caught the attention of the Supreme Court.

While hearing a clutch of petitions challenging the appointments, the Court, which has now reserved its ruling, has come across startling facts. Not only are there no set rules for the appointment of additional advocategenerals (A-Gs), senior deputy A-Gs and deputy A-Gs, state governments had been spending huge amounts on a large number of advocates appointed to these positions.

HUGE TEAMS Haryana, for instance, has 183 law officers, which includes 58 additional A-Gs, one senior deputy A-G, 62 deputy A-Gs and an equal number of assistant A-Gs, as per an affidavit given by the state to the apex court last month. Punjab is not far behind, with as

70

January 15, 2016

many as 174 law officers who were also appointed without any norms in place. It has a team of 74 additional A-Gs, five senior deputy A-Gs, 40 deputy A-Gs and 55 assistant A-Gs. In contrast, the center has a team of less than a dozen law officers in the Supreme Court led by Attorney-General of India Mukul Rohatgi.

A majority of these state lawyers have not been appointed on merit or experience. In fact, most are related to politicians, senior officers, judges, senior advocates and other influential people. One of those appointed in Haryana is a relative of the chief minister and did not even fulfil the norms to practice in the High Court. In some cases they are officebearers of political parties, too. This is despite the fact that the Bar Council of India has fixed a minimum experience of two years in a sessions or district court for being eligible to appear in high courts.

The Haryana government affidavit also details the emoluments given to these officers.

Additional A-Gs are paid a monthly remuneration of `1.40 lakh and entitled to leave as

of November 15

Not only are there no set rules for the appointment of additional advocategenerals, senior deputy A-Gs and deputy A-Gs, state governments spend huge amounts on a large number of advocates.

Anthony Lawrence

admissible to Class I officers, except earned leave. They are on contract for one year, which is renewable every year. They are entitled to do private practice but are barred from appearing against the state.

Deputy A-Gs are put on regular pay scales, with entry-level salaries being a minimum of `43,390, plus the usual allowances, including house rent allowance and TA/DA, as admissible to state government employees. Assistant A-Gs have an entry-level minimum pay starting at `28,000, plus the usual allowances.

MONEY SQUANDERED? Details of the official expenditure calculated by the Haryana’s A-G office show that the state incurs a monthly expenditure of around `70,235 on an assistant A-G, `85,000 on an additional A-G, `90,000 on a senior additional A-G, `1,00,575 on a deputy A-G, and `1,00,675 on a senior deputy A-G. It also spent `18.71 crore on the state A-G’s office between April 1, 2012, and January 31, 2013, as per official figures of a CAG report in 2014.

The report also said that about 80 percent

of the law officers don’t have adequate work most of the time. It questioned the “faulty selection of law officers resulting in idle payment of salary”.

In its reply to CAG’s objections, Haryana had justified the appointments, citing several court judgments, including some from the Supreme Court. “It is the choice, prerogative and discretion of the government to engage such law officers to defend and plead their cases through whom it has faith, confidence and trust, which may be based on word of mouth and performance,” it said.

In its latest affidavit submitted to the Supreme Court, the state informed that the A-G is the only validated post of law officer and the “engagement of law officers are not governed by any rules and regulations”. It added that their engagement is primarily on the basis of recommendations made by the AG. The affidavit admitted that no search or selection committee had ever been constituted to invite applications and scrutinize the names and that it was left to the “discretion” of the A-G to select his team of officers.

INDIA LEGAL January 15, 2016

71

Special Issue

LEGAL EYE/ State Law Officers

CRUX OF THE MATTER (L-R) Solicitor General Ranjit Kumar will probe if states have laid down procedures for selection of law officers SC Bench led by TS Thakur said appointments of law officers must be transparent

“It is the choice, prerogative and discretion of the government to engage such law officers to defend and plead their cases through whom it has faith, confidence and trust, which may be based on word of mouth and performance.”

—Haryana’s affidavit to the Supreme Court

72

January 15, 2016

The affidavit was submitted days after the court slammed the Punjab government over appointment of law officers. A bench led by Justice TS Thakur had said such appointments cannot be an act of “political appeasement” and must be transparent. The court had questioned the process for such appointments in states as it appeared that political connections outweighed merit. It asked Solicitor-General Ranjit Kumar, who was assisting the court as amicus curiae, to find out whether any state had laid down procedures for selection of law officers.

Punjab government, in its affidavit, had said that “conventionally, law officers are engaged on contractual basis after being recommended by the advocate general or in consultation with him. The advocate general recommends to the state government those lawyers who are competent and best suited to carry out the onerous and multi-faceted tasks of law officers”.

LOYALTY PAYS The issue came up before the apex court following a petition filed by advocate Pradeep Rapria, who had challenged the appointment of law officers in the A-G office, Haryana. This was done after the Punjab and Haryana High Court, which had heard his plea, adjourned the case sine-die. In his petition before the Supreme Court, Rapria argued that loyalty to the ruling party, and not legal acumen, had become the deciding factor in the appoint-

ment of government advocates.

Integrity, capabilities, honesty and efficiency of lawyers were secondary to loyalty to the party in power.

In his affidavit, he said that he had filed the petition “against the arbitrary and illegal engagement of Advocates in the AG office, Haryana, on pick and chose basis, without any supporting legislation or Rule, Notification, guideline, norms, which is clearly in violation of Article 14 of the Constitution of India. In response to the RTI query, the State Govt. has informed the Petitioner that there is no specified qualification or rule dealing with the engagement of Advocates in the AG Office and even no application was ever received from the engaged Advocates.

Therefore, there was no occasion for the State Govt. to apply mind on the merits of the Advocates engaged in the AG Office, who deal with the Fundamental Rights and other vital rights of the citizens in the High Court”.

The petitioner submitted that the state exchequer is held by the state as a trustee of the citizens. Remuneration to such state counsels from the state exchequer amounts to state largesse, which cannot be given to any person according to the sweet will and whims of political entities. He pointed out that no applications were sought and there was no specified qualification or rule dealing with the engagement of advocates in the A-G office.

Rapria further said in his petition: “In the democracy, the government cannot behave like a King, who can give benefit to any person as per his whims and fancies.”

Senior advocates in the Punjab and Haryana High Court pointed out that though the appointments of some law officers are justified, the numbers appointed by both states is far higher than required. They also stressed that an improvement in the quality of lawyers appointed for such posts could cut down on the need for so many appointees.

It is hoped that the Supreme Court will issue guidelines to bring some order in these appointments. IL

of

CALENDAR 2016

Special Issue

SPECIAL REPORT/ Sex Workers/ Legal Services

HEALING TOUCH An activist discusses benefits that can be accessed by people living with HIV/AIDS, at an informal meeting in Bengaluru

The New Legal Eagles A project in AP and Karnataka has empowered sex workers by making them paralegal volunteers. As they are made aware of their rights, a confident community is fighting exploitation and domestic violence

By Ramesh Menon in Bengaluru and Anantapur 74

January 15, 2016

S

EX workers in poverty-stricken Anan-tapur district of Andhra Pradesh, like anywhere else in India, have often battled discrimination, exploitation and domestic violence. They have faced frequent harassment by the police and many say they were forced to offer sex to them for free. But now, a growing number of empowered sex workers here are using legal services to protect themselves and secure their rights and see light at the end of a dark tunnel.

Many of them have become paralegal volunteers and are going from door-to-door sensitizing sex workers about their rights and even helping them file cases. This is a part of many other projects run by Delhi-based Centre for Advocacy and Research (CFAR) to facilitate social inclusion of sex workers across programmes and schemes.

Renuka Pattar, working with Shakthi AIDS Tadegattuva

of November 15

Mahila Sangh, a community-based organization in Karnataka, says that women constantly needed help from the police and the legal community to fight incessant violence at work.

Mangladevi, a paralegal volunteer, says: “When we went to train the police force in sensitization towards sex workers, we found that they all blamed us as they felt that we had got into the profession to make easy money. I told them that I too was from a good family like them, but as I was deserted by my violent husband and had two children to support, I was forced into sex work. I saw how their attitude changed. Some had tears in their eyes. The police is also human.”

Adds Radha, another paralegal volunteer: “The police attitude changed only after a lot of advocacy. Once they see our paralegal volunteer identity card, they listen to us.

We have got new respect. We are no more cross-questioned.”

One of the places where trafficking is rampant is Kadiri as it borders the povertystricken districts of Kadappa, Chittoor and Anantapur, where women are trafficked to Bengaluru, Pune and Mumbai. Ramadevi,

a community coordinator, says: “Many of the women are single and helpless. We have to sensitize the local population into seeing them as humans who are victims of circumstances so that they do not morally abhor them.”

A

nantapur is one of the four districts in the Rayalaseema region which have seen frequent famines and is so one of the most economically vulnerable areas. This makes it a fertile ground for trafficking of women. Human development and poverty indices put Anantapur as one of the worst in Andhra Pradesh.

Akhila Sivadas, executive director, CFAR, says: “Most of the sex workers have a history of violence, be it at the hands of the police, clients or husbands. But with legal knowledge at their command now, they are able to challenge it. We are getting communitybased organizations to spearhead the process of getting them pensions and other government facilities so that their quality of life improves. The challenge is to enable the community of sex workers to get mainstreamed and reduce both risk and vulner-

NEW MEANING TO LIFE Playtime at a school in Anantapur

Special Issue

SPECIAL REPORT/ Sex Workers/ Legal Services

ability to HIV/AIDS.” For example, Mangladevi feels empowered enough to file a case against her husband who got married to another woman without taking a divorce from her. She has filed for maintenance under the Domestic Violence Act. This is something she would never have had the confidence to do a few years back.

M “Most sex workers are victims of violence. But with legal knowledge, they can now challenge it. We are helping them get pensions and other government facilities to improve the quality of life.”

—Akhila Sivadas, executive director, CFAR

76

January 15, 2016

any like her have got trained by the Karnataka State Legal Services Authority. They proudly carry identity cards proclaiming them as paralegal volunteers. They mediate in cases of domestic violence or any other matter and try to resolve it as a legal right and entitlement amicably. The men are informed about different laws under which they can be booked. If this does not work, it escalates into a court case.

The District Legal Services Authority then nominates a lawyer who will fight for the victim for free. These measures have decreased violence against the women and other exploitative methods. Says Sivadas: “Unless a measure of social inclusion comes in, nothing can be done for these communities. So, it is important not to criminalize them and get them into the legal process.”

Adds Satish Agnihotri, a former bureaucrat: “Without legal literacy, mobilizations remain incomplete. As stakes increase, both need to be raised a step further. It is imperative to have paralegal training.”

Meena from Bengaluru, an outreach worker working with a NGO, was saddled with four children to look after when her husband died of a HIV/AIDS. She tearfully remembers how her daughter was constantly humiliated in school by teachers who kept telling her that her mother was HIV-positive.

Ultimately, she had to be pulled out of school.

“There are enough laws now, but the main issue is to check whether it works. Women, especially sex workers, need sensitized lawyers as most do not understand HIV/ AIDS issues and are not interested in doing legal aid work for us as the payment is meagre,” she says.

Activist lawyer Vrinda Grover says that there is no monitoring of legal aid services

for sex workers. “It should be done to ensure that it works the way it was designed. How many lawyers come well-prepared to defend sex workers in court?” she asks.

Narsamma from Anantapur was a victim of domestic violence. Her first husband deserted her, leaving her with two children.

Then, a client of hers professed his love and took her to Bangalore. She had a son with him. After the child was born, he started demanding money from her to fund his drinking habit. Fed up, she returned to Anantapur. It was not easy looking after three children, but counseling from the protection officer in the Women and Child Development Department stopped her from committing suicide. She has now realized the need to be legally literate and is grateful for the help she got from the community.

A para legal volunteer talks of how one sex worker who was a mother of three was forced to live with a powerful toughie. He however did not contribute to running the family. One day, she was forced to get a client home. When he came to know of this, he severely beat her up and inserted a sharp piece of wood into her private parts and also inflicted a head injury. As she was part of a self help group, they rushed her to the Victoria Hospital in Bengaluru but she could not be saved. The women filed a police complaint, got him arrested and followed up with the legal process till he was convicted with a life term for murder.

The Community-based Organizations (CBO) representing sex workers, supported by civil society organizations such as CFAR, have for many years been mobilizing sex workers in Andhra Pradesh, Karnataka and elsewhere. They also ensure that children of sex workers do not get pulled into the profession.

Sharda (name changed), the daughter of a sex worker, shyly sits in her school principal’s room. She softly speaks of how her mother was rescued by the Delhi police from a brothel and sent back to Gandlapenta in Andhra Pradesh. The young girl is happy being in school as it has triggered new dreams. “I want to become a teacher one day as I can change the lives of so many,” she says.

Sex workers were long denied govern-

of November 15

ment benefits under various schemes. To prevent this, the then Anantapur district collector, Lokesh Kumar, decided to set up, what he called, “single window” in 2014 that would ensure that sex workers and transgenders get all their paperwork done to avail of government schemes.

Earlier, they would run from pillar-topost for aid and often failed to get them even after paying touts. The single window also helped them get voter identity, Aadhar and ration cards, birth certificates and property documents.

I

t was the Single Window run jointly by CBOs and CFAR which got Sharda into school and secured a pension for both her mother and grandmother. The principal has kept her family background a secret so that she isn’t discriminated against. She is not the only one. Many children of sex workers are now living in residential schools in Andhra Pradesh due to the efforts of social workers.

Sunita Kumari, principal of KGB Vidyalaya, Gandlapenta, where over 200 girls from disadvantaged backgrounds are given free education, says: “Normally parents insist on their daughters marrying before they turn 18. But we do not have a single instance of any of our girls being forced to do so. This is because we counsel the parents regularly on the advantages of education and the career opportunities it opens for their children.”

Poor performers in school are singled out for special attention of the teachers. In the last two years, all students appearing for the board exam have passed. Community workers constantly look for students who could be potential dropouts or get into crime.

Take the case of Ishwaraiyya from Anantapur, whose mother, a sex worker, was murdered by his father, who then fled. The Single Window team ensured that he got admission in a free government school with a hostel. He says he has put the past behind him and wants to make his grandmother proud.

Sreenivaslu, assistant project manager of the District Rural Development Agency at Anantapur, told India Legal that the administration had identified 10 areas in the dis-

Ramesh Menon

trict that were poor and, therefore, prone to trafficking. It had identified as many as 6,000 women who would be attached to selfhelp groups that would ensure that they get benefits of various government schemes and are not coerced or sexually exploited. The administration would get funds out of the National Livelihood Mission which had earmarked a budget of `11.28 crore, he said.

Government officials were, for the first time, more than ready to help these sex workers. This happened because the district collector had told officials that sex workers must be given priority. They were told that under the Right to Education Act, it was their legal right to get access to education.

Sujata, who is being treated for HIV/AIDS, says she got 21 children of sex workers admitted to school as she knows the rights they have to education. “I understand the importance of education as I am illiterate,” she says.

For the first time, sex workers also realized that they were eligible for pensions.

While district officials specified what documents were needed, community coordinators helped them garner the necessary documents and filled in the application forms. Anantapur has six community-based organizations and over 9,000 sex workers under their umbrella. To ensure that sex workers get immediate attention of government officials when they apply, they are given them a distinctive blue file. Usually, action is taken within two weeks.

READY HELP A beneficiary getting her documents verified at a pension adalat

INDIA LEGAL January 15, 2016

77

Special Issue

SPECIAL REPORT/ Sex Workers/ Legal Services

IT’S ALL ABOUT INCLUSIVITY Government officials brief sex workers on some of the programs aimed at the target group in Anantapur

Earlier, social workers in Anantapur district found it difficult to get their children admitted into hostels run by the Social Welfare Department or even to get scholarships. But with the blossoming of this new attitude, sex workers and transgenders were told that they could take advantage of eight different schemes. Social workers in the community based organization helped sex workers get income and caste certificates and other documents.

This has brouRamesh Menon ght about a sea change. Ratnamma from Chapiri village in Anantapur says that her nine-year-old daughter secured admission in Vth standard.

“She will study till the XIIth without a problem,” she says with a smile. Sujata (name changed) whose mother is a devadasi, was under family pressure to get married. She refused to do so after social workers persuaded her to continue studying. She is now in the XIIth standard. The single window process helped her mother get her a scholarship of `2,500 a year and get hostel accommodation to continue studying. “I am grateful that I now have a future,” she says. Many of us take our lives for granted. She does not.

T

he new confidence in the community shows. Khaja Bee from Dharmavaram says that when the Aadhar centre was set up, she did not go there, fearing stigma.

But, when social workers set it up to give out these cards, she confidently approached them and even got a card for her mentally challenged daughter.

Also, under the Integrated Child Protec-

78

January 15, 2016

tion Scheme, the district also increased financial allocation to ensure that children of sex workers benefited and some were also rehabilitated in government-run homes. As many as 600 children who needed foster care were identified.

The single window culture also got government officials to reach out to sex workers in places convenient for them. In a rectangular room in Ramnagar, where the sun filters in through large windows, a group of brightly dressed women with orange and white flowers in their hair, patiently listens to a group of officers explaining what schemes they were entitled to. And, their legal rights.

Periodically, the officers come there to listen to their grievances and work out solutions on the spot. It is an excellent example of local governance at its best. Here, Venkatarathnam, the district program manager for HIV/AIDS tells a group how he is working on a proposal to secure loans for them under the scheduled tribe category, where they would only have to repay 10 percent of it if they fall into the category of people with HIV/AIDS. Other officers take notes and promise immediate action.

Geetha, who works as an activist in Bengaluru with the Vijaya Mahila Sangha, says: “We learnt how to access social development schemes and HIV prevention methods and realized that even marginalized women have rights. This has happened as sensitive government officials encouraged us with the single window system, listened to our grievances and ensured we got various benefits.

We do not have to knock on government doors anymore as they come to us. The district legal services authority deputed lawyers to help us procure certificates when our husbands deserted us or died.”

Asha Ramesh, a gender activist in Bengaluru, says the single window and legal training has “amplified the voices of sex workers on issues and given them access to government benefits they never knew about.”

But then, it took the effort of many to see this empowerment. All eyes are on Anantapur as it is a model that can easily be replicated all over the country. IL

of

W

1. To kick the bucket.

A: To resign B: To divorce C: To die D: To loiter around 2. Chutzpah.

A: Russian dish B: Audacity C: African beast D. Chinese dress 3. Electra complex.

A: Girl’s fixation on father B: Arrogance C: Obsession for gadgets D: Boy’s love for mother 4. Crepe.

A: Snake B: Thin pancake C: Silky material D: Boring person 5. Souped-up.

A: Superior B: Confused C: Spicy D: Wet 6. To grit one’s teeth.

A: To show anger B: To hide one’s feelings C: To hone one’s skills D: To criticize 7. Anoxia.

A: Lack of sleep B: Drug resistance

Have fun with English.

Get the right answers.

Play better scrabble.

By Mahesh Trivedi

C: Lack of oxygen D: Loss of memory 8. Palindrome.

A: Reads same backwards B: Small aerodrome C: Anti-TB drug D: Big car 9. He collects flags.

A: Flagophile B: Vexillologist C: Numismatist D: Philatelist 10. Ne plus ultra.

A: Top terrorist B: Give me more C: Top expert D: The ultimate 11. Twist-and-twirl.

A: Young woman B: Silky cloth C: Smart car D: Body builder 12. Toffee-nosed.

A: Ugly B: Snobbish C: Suspicious D: Sick 13. Rust bucket.

A: Old ship B: Retired person C: Experienced man D: HIV patient 14. Patootie.

A: Chinese dish B: Japanese necktie C: Sweetheart D: A furry animal 15. Me-and-you.

A: Couple B: Duel C: Menu D: Marriage proposal 16. Room under roof.

A: Cache B: Quadrangle C: Cul-de-sac D: Garret 17. Curate’s egg.

A: Rotten B: Good in parts C: Perfectly oval D: Nutritious 18. The demon drink.

A: Alcohol B: Bitter gourd juice C: Urine D: Poison 19. Whoop it up.

A: Rejoice B: Gulp down C: Clean up D: Hard work 20. Have one’s way.

A: Make a lot of money B: Gatecrash C: Destroy D: Get what you want

ANSWERS

1. To die 2. Audacity 3. Girl’s fixation on father 4. Thin pancake 5. Superior 6. To hide one’s feelings 7. Lack of oxygen 8. Reads same backwards 9. Vexillologist 10. The ultimate 11. Young woman 12. Snobbish 13. Old ship 14. Sweetheart 15. Menu 16. Garret 17. Good in parts 18. Alcohol 19. Rejoice 20.Get what you want

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 January 15, 2016

79

Special Issue

RELIGION/ Catholic Church/Sex Charges

BUYING A

NUN’S SILENCE Sexual misdemeanors by the clergy in Kerala are nothing new. But for the first time, the Church has paid `12 lakh to a former nun who was sexually abused

By TK Devasia

P

OPE Francis defrocked several abusive clergymen since he assumed papacy in March 2013, but his followers in Kerala have made a nun, who complained of sexual abuse by a priest, give up her robes. And though the SyroMalabar Catholic Church, to which Anitha belonged, claims that she hadn’t complained, strangely, the Church has granted her a living allowance of `12 lakh, a gesture it has not

80

January 15, 2016

shown towards any nun in recent history.

At a press conference in Kochi, this exnun had described the sexual advances of a priest while she worked as a teacher in Pachore, Madhya Pradesh, in 2011 and her subsequent ordeals. But this was before the settlement took place. But now she is silent and repeated attempts by this correspondent to talk to her failed.

The events following the complaint showed that the Church did not take kindly to her attempts to put the priest in the dock.

of May 15

Illustration: Anthony Lawrence

The St Agatha congregation, to which Anitha belonged, turned hostile towards her after she spoke up, and when she persisted with her charge, it transferred her to Italy.

Conditions in Italy too were none not friendly. Anitha claimed that she was made to work at the Mother House as a slave and had to go without food on many occasions.

When she complained, she was thrown out and asked to leave Italy.

The same fate awaited her when she returned to her parent convent at Aluva in

February this year. The convent authorities refused to take her in and threw out her luggage. The local people took her to an orphanage there.

PORTRAIT OF COURAGE However, Anitha was not prepared to give up her robes. She wanted a valid reason for her expulsion or compensation for the service she had rendered to the Church for 14 years.

The congregation rejected both demands, but the Ernakulam diocese intervened INDIA LEGAL January 15, 2016

81

Special Issue

RELIGION/ Catholic Church/Sex Charges

WHY SUFFER SILENTLY? TV grab of Anitha, who raised the issue of sexual harassment in the Church

when she threatened to launch an indefinite hunger strike before the convent and accepted her second demand.

The Church, however, has described the financial assistance to Anitha as an act of benevolence on the part of the congregation. Father Paul Thelekkat, spokesperson of the Syro Malabar Church, dismissed questions about sexual abuse as a figment of her imagination. “I did not hear the nun complaining of sexual harassment when I met her. She had only two demands, one of which was to return to the congregation. The second was to get a sum of money for her future living. We have accepted the second demand,” he told India Legal.

“Anitha could not fit into the community.

The settlement was done on a personal basis, for which there are reasons. It was the generosity of the congregation, which wanted her to settle in life after so many years in the convent,” he added.

TRAIL OF MISDEEDS Another nun, who had walked out of her congregation in 2008 alleging sexual harassment, calls the settlement a bribe to seal the mouth of this ex-nun. Sister Jesme, who rattled the Church by describing tales of sleaze

in the Church in Amen, a book published in 2009, says the money was intended to ensure that Anitha did not speak out any more.

Having suffered enough damage from the autobiography of Jesme and the memoirs of other former priests and nuns, the Church apparently did not want to create another martyr. All these books speak about the clergy indulging in sex and their cover-up.

While Jesme’s book talks about the harassment she suffered for resisting sexual advances, homosexuality and corruption within convents, Nanma Niranjavale Swasthi

How about a law to protect nuns?

No government in Kerala is willing to act on a proposal advising legislation for their future security RELIGION is a touchy issue. And this can be seen in the case of nuns and priests who give up their vows. None of the governments who have ruled over Kerala, be it the Congress or the LDF, have responded to their plight. Even Left parties, who champion the cause of the marginalized, have kept off the issue, saying it would amount to interference in matters of religion.

In 2008, the Left Front government buried a recommendation of Kerala Women’s Commission to enact a legis-

82

January 15, 2016

lation seeking to protect the interests of the nuns. The commission, headed by retired high court judge, Justice D Sreedevi, had asked the government to make legal provisions to secure the life of those quitting the order. It wanted legal provisions to prohibit girls under 18 from joining the vocation, prosecution of parents who forcibly send their daughters to nunneries, protection of a nun’s share in family property and return of property bequeathed to the Church if they denounce their vows.

But the Congress-led United Democratic Front opposition termed this proposal as a challenge to religious freedom. After coming to power in 2011, they rejected the proposal.

The Church, too, claimed that nobody in the Church could pronounce vows before 18 years. Church authorities said they recruit girls to nunneries only after completion of their school studies and that too, with their full consent. It also permits them to leave the nunnery any time during the training.

of May 15

PEN FOR A CAUSE (L-R) Sister Jesme wrote an account of her suffering at the hand of Church authorities in her autobiography; Sister Marty Chandy recounted numerous scandalizing instances in churches, in her book

(Peace to the One filled with Grace), an autobiography of Sister Marty Chandy, another former nun, speaks about nuns who got pregnant by priests and aborted fetuses and other scandalizing stories.

Even worse was Oru Vaidikante Hrudayamitha (Here is the Heart of a Priest), a memoir by Father Shibu Kalamparambil, who quit his Vincentian order after 14 years due to frustration. His book alleges that priests and nuns had converted convents and nunneries into brothels.

He has now joined a movement against ill practices in the Church called the Kerala Catholic Church Reform Movement (KCRM). He says a number of priests and nuns had been caught red-handed but the Church had hushed up the matter.

Reji Njallani, national convenor of KCRM, says sexual misdemeanors by the clergy is a serious threat to the church in Kerala and wants the Vatican to review celibacy law. He says that KCRM has already submitted a representation in this regard to Pope Francis.

However, noted writer Paul Zachariah laughs at the suggestion. “This will never happen. Many of today’s priests don’t want to marry. When they can get sex easily within the confines of the Church, why bother to maintain a wife and bring up children? You don’t need to open a tea shop to drink tea,” he says. Also, the Catholic Church, unlike other

Christian denominations, does not allow its clergy to marry.

LARGE MIGRATION The writer says this was one of the reasons why the church in Kerala never faced any problem in filling seminaries and nunneries.

Earlier, youngsters from poor families would come forward to join the religious order.

Now, young boys and girls from well-to-do families are also joining in large numbers.

Part of the reason for this interest is the increasing opportunity of going abroad following the migration of many Christians in Kerala to other parts of the world and the acute shortage of priests in many countries, especially Europe, says Zachariah.

Priests and nuns currently constitute one of the largest migrations from Kerala, where 40 lakh educated youth languish without jobs. The number of clergy leaving Kerala, either for other states or to go abroad, is now estimated to be around 1.35 lakh. Of the total percentage of Catholic priests and nuns in the world, Malayalees constitute 15 percent.

Zachariah reveals that the sex and corruption scandals are not bothering the Catholic Church much as it has the money and muscle power to cover them up. The political clout wielded by this Church deters the government from acting against it.

The two-decade-old Sister Abhaya case is a glaring example. The Kerala police had

Sex and corruption scandals do not bother the Catholic Church much as it has the money and muscle power to cover them up.

INDIA LEGAL January 15, 2016

83

Special Issue

RELIGION/ Catholic Church/Sex Charges

BREWING STORM (L-R) Father Shibu Kalamparambil quit his Vincentian order after 14 years out of frustration; Reji Njallani, national convenor of KCRM, wants the Vatican to review celibacy law to stem the rot

“When the priests can get sex easily within the confines of the church, why bother to maintain a wife?

You don’t need to open a tea shop to drink tea.”

—Paul Zachariah, writer

84

January 15, 2016

sought to bury the case as a suicide, but the CBI, which took over the investigation, subsequently found that the 22-year-old nun was murdered allegedly by two priests and a nun after she witnessed their sexual acts in the convent where she lived.

Similarly, the police did not care to conduct a proper investigation into the suicide of 23-year-old Sister Anoopa Mary even after recovering a note from her room stating that she was unable to withstand sexual harassment from senior nuns. She was found hanging in her room at Saint Mary’s Convent in Kollam in 2008. Several other cases of sexual abuse, murder and suicide within the Church have not seen the light of day.

Njallani says KCRM is aware that the living allowance granted to Sister Anitha is part of a cover-up operation. The Church has insulted the ex-nun by describing the compensation as charity. After serving the Church for 14 years, she had a right for a severance package, he says.

He says KCRM still accepted the settlement hoping that it would pave the way for a better life for thousands of ex-priests and nuns languishing on the sidelines of mainstream society. He says that the association of ex-priests and ex-nuns floated by the organization recently is gearing up for a long struggle in this regard.

However, the Church has made it clear that the allowance granted to Anitha is not

going to set a precedent for anyone else in future.

FREE SERVICE? Father Joseph Chinnayyan, former deputy secretary-general of the Catholic Bishops’ Conference of India, says it is not right on the part of ex-priests and ex-nuns to demand compensation as they had joined the Church with a commitment to serve God. There cannot be any fee for this service, he stresses.

He says that the system under which the Church works cannot be compared with trade union laws. The issue would be addressed as per Canon Law, which has provisions to deal with it in a “humane and benevolent” manner, he adds.

Njallani wonders how the Church could describe the service being rendered by priests and nuns as free service to God when the Church is charging market fees for the service it provides. Self-financing colleges under the Church are, after all, taking hefty amounts as donation and tuition fee, he says.

“If the Church is not ready to give fair compensation to ex-nuns and ex-priests, they will be forced to move the courts. Churches in western countries are already paying billions as compensation to abuse victims. It will be in the interest of the Church here if it does not force the victims to go to the court,” he adds.

Talk about courting trouble. IL

of

PEOPLE / Celebrations Galore

SWIMMING WITH SANTA A diver dressed as Santa Claus swims with sardines during an event for Christmas at the Coex Aquarium in Seoul

HO HO HO… ROW ROW ROW! People dressed as Santa Claus row a boat on Venice's Grand Canal

A PRAYER FOR WORLD PEACE US president Barack Obama hosts the National Christmas Tree Lighting and Pageant of Peace ceremony on the Ellipse near the White House IT’S THAT TIME OF YEAR A child lights candles at Park Simon Bolivar in Bogota to mark the start of the Christmas season

OH HAPPY DAY Schoolchildren dressed as Santa Claus ahead of Christmas at a school in Ranchi

— Compiled by Kh Manglembi Devi Photos: UNI

March 1,

3

Special Issue

RELIGION/ Santhara

UNI

A Matter of Faith

Even as the Supreme Court stays the Rajasthan High Court verdict making Santhara illegal, all eyes are on what the final verdict will be. Is one’s religion more important than the law of the land?

By Kalyani Shankar

LAST MOMENTS (Above) A Jain practising Santhara or fast-unto-death

86

January 15, 2016

I

N multi-cultural and multi-religious societies, occasional clashes occur on sensitive religious and social issues. The question is how does a state that allows religious freedom deal with religious practices that contravene the laws of the land? Since religion predates the legal framework, a conflict arises when things are seen through the prism of current laws. One

such practice is that of Santhara, practiced by the Jains, where the person willfully embraces death. However, this is at variance with the legal framework, which tends to see this as suicide.

In other countries too, religious practices have clashed with the law of the land. France was the first European country to ban the wearing of the full veil. Belgium adopted a similar ban in 2011. In Spain, the city of

of November 15

Barcelona and some other towns brought in similar bans, as have towns in Italy. In 2014, the European Court of Human Rights upheld the French law. On the other hand, Sikhs won a case in the UK this month, to wear turbans in workplaces.

In India, concerns over social justice have forced courts to create a division between religious and secular practices and between essential and non-essential practices of a religion. In the fifties, the apex court upheld the entry of Dalits in temples on the basis of social justice. But of late, with rising awareness of rights, ease of litigation through PILs and proactive NGOs and the media, religious practices that are considered inimical are being challenged in court.

COURT INTERVENTION It is not surprising that certain religious practices are no longer considered sacrosanct in India. The courts had dealt with several issues like the entry to Sabarimala as demanded by women, PILs filed against child diksha (the practice of choosing a child as a successor to the head of a mutt), participation of children in Muharram rituals and the right to excommunicate of the Bohras.

The practice of Santhara is also now being challenged. Devout Jains believe that Lord Mahavira allowed Santhara or Sallekhana.

Here, the ultimate goal is purifying the body and mind by embracing death voluntarily through denying oneself food and water.

While some of those who choose Santhara are Jain monks, a majority are lay people, of whom 60 percent are women.

However, questions are being raised about who will decide the right to die and what about the right to privacy and personal liberty of the person undergoing Santhara.

There is also the question of minority rights as Jains were declared a minority last year.

While this community is invoking religion for practicing Santhara, the court is questioning it.

It also matters that the four millionstrong Jain community is wealthy.

The Santhara issue came into the limelight after Nikhil Soni, a lawyer and human rights activist from Jaipur, approached the Rajasthan High Court and cited public inter-

est to outlaw Santhara in 2006. He equated it with Sati.

ILLEGAL PRACTICE On August 10, 2015, the Rajasthan High Court declared Santhara illegal and held that its practice would be punishable under Section 309 of the IPC as an attempt to commit suicide. The guarantee of a right to life does not include within its ambit a right to die, and so it is not protected by Article 21, the Court held. It added: “We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. The premise is that Santhara is not an essential part of Jainism and therefore not protected by Article 25.�

In the seventies, Ananda Margis in Calcutta wanted to march on the streets with swords and sticks and do the tandava dance claiming it was an essential practice of their religion. The police commissioner would not allow it, stating that it would contravene public order. The court went into the antecedents of the issue and said that since it was a relatively new practice in their religion, it would not count as an essential practice.

When the Jains appealed, the apex court stayed the High Court verdict on August

Questions are being raised about who will decide the right to die and what about the right to privacy and personal liberty of the person undergoing Santhara.

Courts are also looking into the constitutional rights of the citizen.

FIGHT FOR LIBERTY (Below) A woman wearing the hijab in France, the first country in Europe to ban the wearing of the full veil

INDIA LEGAL January 15, 2016

87

Special Issue

RELIGION/ Santhara

RITES OF PASSAGE (Right) A child getting a ceremonial tonsure at Muharram

UNI

“It is one thing for the state to protect life and promote justice.

It is another for it to colonize the various ways in which death can be interpreted, and life be given meaning.

Unfortunately, the Rajasthan HC judgment does just that.”

—Bhanu Pratap Mehta, social scientist

88

January 15, 2016

31, 2015. The community is now getting ready to prove that suicide and Santhara are two different things and it is an essential practice. It has also assumed a political flavor with rallies and processions being taken out and Jains seeking the support of organizations like the Vishwa Hindu Parishad, apart from knocking at the doors of governors of various states.

RIGHT TO LIFE While Soni’s petition invokes Right to Life under Article 21 of the constitution, Santhara advocates quote the same article to argue that Right to Life is meaningless without the corresponding right to die with dignity. They claim that while people commit suicide due to depression, anger or loneliness, Santhara is observed amid festivity. In India, euthanasia is banned and suicide is considered a crime. If Santhara is banned, so should the samadhi undertaken by Vaishnavites (Devotees of Lord Vishnu) or the fast-untodeath. They also dismiss comparisons with the hunger strikes by Mahatma Gandhi during the freedom struggle or Vinobha Bhave giving up food and water.

Quoting historical evidence, the supporters point out that Chandragupta Maurya renounced his throne under the influence of the great Jain ascetic, Bhadrabahu, and

ended his life observing Santhara (298 BC).

Incidentally, in December 2014, Minister of State for Home Haribhai Parthibhai Chaudhary said in parliament that the government has decided to decriminalize the attempt to suicide by deleting Section 309 of the IPC, which said that a suicide bid is punishable with imprisonment up to a year or with a fine or both. This was based on a Law Commission report in 2008 which noted that an attempt at suicide may be regarded more as manifestation of a diseased mind, deserving treatment and care rather than punishment. It recommended to the government to initiate the process to delete the section.

Incidentally, five states—Bihar, Madhya Pradesh, Delhi, Punjab and Sikkim expressed reservations against such a move. On February 24, 2015, Chaudhary said the proposal had been sent to the law ministry After the Rajasthan verdict, the Jains have got support from such legal luminaries as retired High Court judge Pana Chand Jain. In a documentary on Santhara produced by law professor Shekhar Hathangadi, he points out that Articles 25 and 26 of the constitution allow followers of all faiths to freely profess, practice and propagate their religious faith and the freedom to manage their religious affairs. He says: “Mindful of the country’s ethnic and cultural diversity,

of November 15

Article 29 guarantees citizens with a distinct culture, the right to conserve the same.” He further says: “Article 18 of the Universal Declaration of Human Rights says that everyone has the right to freedom of thought, conscience and religion; (and the right) to manifest his religion or belief in teaching, practice, worship and observance.”

Congress spokesman and eminent lawyer Abhishek Manu Singhvi claims that the Supreme Court for the first time will decide the constitutional validity of Santhara.

“It will go into fundamental questions of life and death and into the religious belief of Jains, whether Santhara interferes with human rights or whether it should be allowed to continue. It will be a momentous issue.”

Singhvi is the lead counsel for the Jain groups.

Shekhar Hathangadi, an award-winning documentary filmmaker on Santhara, observes that Indian laws ignore some of the beliefs of Indian religions since it is based on the Westminster model of colonial rulers.

Describing the Rajasthan court verdict as “historic as no other court has criminalized a centuries-old ritual with a rejection of its theological rationale,” he reportedly said that no other world religion takes its fasts to this fanatical point.

VALID QUESTIONS Shurith Parthasarathy, a Madras High Court advocate, has also been quoted in the media as hoping that the apex court would ask the right questions “of whether any social inequities arise out of the practice, of whether any other right of its practitioners are violated through Santhara, of whether the rights of any other person are infracted when a person goes on fast”.

While only a fraction of the Jain community practices Santhara, it has widespread support among them. The apex court verdict will be watched as it also has legal ramifications for other religious practices. The Indian state, in responding to the verdict, has to decide whether it should intervene at all in such a practice.

As social scientist Bhanu Pratap Mehta argues: “The community, for its part, will need a conversation on the conditions under which Santhara should be permitted. It is one thing for the state to protect life and promote justice. It is another for it to colonize the various ways in which death can be interpreted, and life be given meaning.

Unfortunately, the judgment does just that.”

Any reform must come from within the community itself. But change is often resisted. Religious beliefs are age-old and faith often too strong to be broken. IL

RITUAL AND TRADITION (Above) Children performing the tandava, an essential practice of the Ananda Margis

INDIA LEGAL January 15, 2016

89

Special Issue

INTERVIEW/ Judge Ronny Abraham

“India Resolving Commercial Disputes in the Best Way�

With greater liberalization, India was exposed to the demands of international arbitration. However, despite a strong judiciary, it has lagged behind in judicial reforms and implementing international procedures while dealing with disputes with different countries. Often, these have acquired political overtones, causing a blemish on India's credibility. Most international parties opt to settle conflicts in the International Court of Justice in The Hague, London or Singapore, as India's alternate arbitration and mediation facilities are seen as time-consuming and expensive. At a recent conference on Alternate Disputes Resolution (ADR) organized by the International Conference on Document Analysis and Recognition (ICDAR), JUDGE RONNY ABRAHAM, president of the International Court of Justice (ICJ), The Hague, told NEETA KOLHATKAR that international commercial relations had given rise to more cases on diplomatic protection issues 90

January 15, 2016

With increasing foreign investments from countries with different judicial systems, is the world today facing more commercial disputes? How does the ICJ deal with these cases?

Yes, you are right. With globalization and liberalization, disputes have increased over the years. With countries and private parties having commercial interests in different countries, this is bound to happen. Also, every country has different rules of judiciary. The International Court of Justice gives top priority to settlement of international disputes related to commercial activities. We even tackle complex issues involving diplomatic issues.

of December 31

“With countries and private parties having commercial interests in different countries, disputes have increased over the years. While the International Court of Justice gives top priority to the settlement of disputes related to commercial activities, we even tackle diplomatic issues.”

Ronny Abraham, president, ICJ

India has been inundated with an increasing number of commercial disputes. But it has a long way to go before establishing ADR of international standards. Why do international parties who invest in India prefer to go to The Hague, London or Singapore in case of a dispute?

India, like other countries, is handling more and more commercial disputes and is finding the best ways to resolve these disputes peacefully through judicial, arbitration, mediation and other means. I have heard the efforts that are going on. I cannot state any preference but I will definitely speak of the work we do and the issues we tackle.

Can you mention a case that stood out?

I would like to highlight the role of the International Court in handling

Diplomatic Protection. We are getting more and more such cases. On May 24, 2007, there was a case of Guinea versus the Democratic Republic of Congo (DRC). Our court gave its decision based on preliminary objections raised.

The case concerned a claim of diplomatic protection by Guinea, which alleged that Congo had violated the rights of its national, Ahmadou Sadio Diallo, by expelling him and confiscating the property he owned and controlled in Congolese companies.

The Court held that the state of a shareholder who has invested in a foreign company could not diplomatically protect him. This was because, if the company possessed its own separate legal personality, although two separate entities may have suffered from the same wrong, it is only one entity whose rights have been infringed. An act

directed against and infringing on only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected.

This decision severely restricted the diplomatic remedies available to shareholders in foreign companies operating in foreign jurisdictions.

There is also a judgment by ICJ in the Brazilian Traction case which creates a nearly insurmountable barrier to foreign shareholders hoping to protect their investment based on general principles of international law. Since the Court concluded that shareholders’ interests constitute indirect interests which do not warrant international legal protection, a claimant state cannot espouse the claim of its nationals who have invested in foreign corporations unless treaties specify otherwise. IL INDIA LEGAL January 15, 2016

91

Special Issue

SUPREME COURT/ Abortion Ruling

Humane option A recent judgment which allowed a raped girl to abort her 24-week fetus is being lauded for its sensitivity. What are the medical and psychological reasons for allowing this termination?

By Shobha John

I

T was a heart-rending case evoking horror and sympathy. But it terminated in a landmark judgment which showed the humane side of the legal system and should be emulated by courts elsewhere in India.

It dealt with a 14-year-old girl in Gujarat, raped by a doctor who was treating her for typhoid. He allegedly sedated her and committed the heinous act. But she kept quiet about it till it was legally too late for an abortion. The doctor was later arrested. Though the parents approached a sessions court and later, the Gujarat High Court, pleading for abortion, both rejected it, saying the law had to be obeyed. The matter finally reached the Supreme Court, where a two-judge bench allowed her to terminate her ill-timed pregnancy despite the fetus being 24 weeks old.

Anthony Lawrence

92

January 15, 2016

MANY CHOICES The case riveted the nation and set the ball rolling for future judgments of this nature. In this case, abortion was untenable as the Medical Termination of Pregnancy (MTP) Act, 1971, allows it only up to 20 weeks. The Supreme Court bench of Justices Kurian Joseph and Anil R Dave had to decide whether to take a humanitarian view or a legal one. Should they be pro-life or pro-choice?

What about the girl’s right to personal liberty as guaranteed under Article 21 of the constitution? As the debates went on, the baby reached 24 weeks even as the distraught young mother refused the option of giving

of August 31

the baby up for adoption. Torn between these two choices, the court asked a team of doctors, including a psychologist, whether MTP was the best answer. Thankfully, the doctors said yes and the baby was aborted.

So how did the girl’s lawyers manage to work around the MTP Act? By stressing on the “mental health” of the mother and the grave injury caused to it by the rape. While the physical well-being of the mother is important, so is her mental state to bear and look after the baby, which, in this case, was absent. Her father, a cycle mechanic, was reported as saying: “She would keep crying. I couldn’t console her….When I saw her situation, I felt like committing suicide.”

Pulkit Sharma, a clinical psychologist who has worked at VIMHANS and Swanchetan, an NGO which deals with rape victims, explains the trauma faced by a young girl who becomes a mother out of rape.

“In such cases, the mother will be mentally fragile and feel no bond with the child.

Instead, there’ll be feelings of revulsion and hate, and these will have a fallout on the child too as he/she battles feelings of rejection and anger and becomes anti-social,” he says.

“The mother will see the child as an extension of the rapist. Even if she gets married later, the husband and his family may not want the child. The Indian social milieu is such that the mother often has no say in such situations,” he adds.

SAFER OPTION Dr Duru Shah, director of Mumbai-based Gynaecworld, a fertility clinic, and part of the ethics committee of the International Federation of Gynecology and Obstetrics (FIGO), says the Supreme Court took the right decision as this was a safer option, medically.

Shah explains that a 14-year-old girl is not a complete adult and is unfit for childbirth.

“She is still getting taller, the pelvic bone structure is still getting formed and the hips are getting wider. If she delivers a child at 14 years, there will be damage to tissues in the pelvic and vaginal region and chances of the baby also getting distressed. Allowing her to abort the child now was definitely a safer option as later on, she would have had to opt for a Caesarian delivery,” she says.

NEEDLESS DEATH (Left) Savita Halappanavar, 31, died of pregnancy-related complications in Ireland in 2012 as Irish law prohibited abortion under any circumstance

Incidentally, Shah is also the Chair of the Anti-violence against Women Cell of the Federation of Obstetric & Gynecological Societies of India.

Explaining the medical reasons for the legal framework of the MTP bill, Shah says that till 12 weeks, it is easy to remove a fetus through vacuum aspiration. “But after 12 weeks, the skeleton of the fetus starts growing and vacuum aspiration can be traumatic, causing a lot of bleeding. So if an abortion has to be done between 13-20 weeks, it is like a mini-delivery. The gynecologist gives the woman medications which make the uterus contract and she delivers. As there is pain, she is given painkillers,” says Shah.

While in India, the legal limit for abortion is 20 weeks, other countries have varied time limits (See Box “World at Large”). While in the UK, abortion is legal up to 24 weeks of pregnancy, the UK Abortion Act also prescribes specific situations, including mental health of the pregnant woman, to allow abortions after this time.

Even the US and China allow termination after 20 weeks in case of severe fetal

Doctors say that in some cases, pregnancies have even been terminated at 33 weeks when the baby is severely malformed or some infections have reached the fetus from the mother.

Such terminations should be done ethically.

INDIA LEGAL January 15, 2016

93

Special Issue

SUPREME COURT/ Abortion Ruling

“We have the interest of the girl in our mind. But we also know there is a life inside her.

We want to do something for her and that is why we are contemplating a way out.”

—The Supreme Court bench of Justices Kurian Joseph (L) and Anil R Dave (R) JS Studio

abnormalities or to protect the mental or physical health of the mother.

NEEDLESS DEATH On the other hand, there is Ireland, a Catholic country, where abortion is illegal unless it is to save the life of the mother.

Ireland’s abortion laws came in for criticism with the death of Savita Halappanavar on October 28, 2012. Savita, an Indian dentist, suffered a miscarriage when she was some 17 weeks pregnant. She sought medical attention and treatment, but her requests for an

Time Factor Some of the circumstances under which medical termination of pregnancy is allowed: Where the length of the pregnancy

does not exceed 12 weeks Where the length exceeds 12 weeks but not 20 weeks Where the continuance of the pregnancy would involve a risk to the life of the pregnant woman, cause grave

94

January 15, 2016

injury or affect mental health Where there is substantial risk that if the child is born, it would suffer from such abnormalities as to be seriously handicapped Where any pregnancy is alleged by the pregnant woman to have been caused by rape, and therefore, can constitute grave injury to her mental health If the women is below 18 years or is mentally ill, then with the consent of a guardian

abortion were refused. Instead, she was told that because the fetus had a heartbeat and her life did not appear to be in danger, it was not legal. On October 23, she collapsed and eventually died on October 28, 2012, due to septicemia.

Halappanavar’s death led to numerous protests and finally, Ireland passed the Protection of Life during Pregnancy Act 2013, which provides for a woman’s right to an abortion if her life is at risk.

Shah says that in some cases, pregnancies have even been terminated at 33 weeks when the baby is severely malformed or some infections have reached the fetus from the mother. “Such terminations can be done as long as they are done ethically without causing pain to the fetus and there is a solid reason to do so,” she says.

ETHICAL GUIDELINES In fact, the International Federation of Gynecology and Obstetrics (FIGO), has laid down ethical guidelines for induced abortion for non-medical reasons. These, it said, can be ethically justified in cases of incest or rape or when the mother’s life is threatened by a serious disease. When properly performed, it is, in fact, safer than term deliveries.

FIGO’s ethical guidelines say that:

of August 31

PRO-LIFE BRIGADE (Left) An anti-abortion rally in Washington in June 2014

World at Large

UNI

Governments and other concerned organizations should make every effort to improve women’s rights, status, and health, and should try to prevent unintended pregnancies by education, by counseling, etc.

A woman’s right to autonomy, combined with the need to prevent unsafe abortion, justifies the provision of safe abortion.

Most people, including physicians, prefer to avoid termination of pregnancy. Such a doctor has an obligation to refer the woman to a colleague who is not opposed to inducing termination.

Very careful counseling is required for minors. When competent to give informed consent, their wishes should be respected.

Otherwise, the advice of the parents or guardians and when appropriate, the courts, should be considered.

After appropriate counseling, a woman has the right to have access to medical or surgical induced abortion, and the health care service has an obligation to provide such services as safely as possible.

LANDMARK JUDGMENT Dr Ranjana Kumari, a women’s rights activist and director of the Delhi-based Center for Social Research, too lauds the Supreme Court judgment. “This is a land-

mark judgment and all courts in India should take cognizance of it. After all, a woman has a right over her body. Plus, in this case, the girl was violated, so there is all the more reason to allow this abortion,” she says. Each case should be taken on its merit and as long as it is medically safe, such abortions should be allowed.

However, she does not support late termination of a pregnancy just because it is being done in other countries. “Our health delivery systems and medical technology are not so robust and there could be chances of mishaps. The present MTP law of abortion till 20 weeks is good enough,” she stressed.

Meanwhile, the MTP (Amendment) Bill, which has provisions for extension of the legal limit for abortion from 20 weeks to 24 weeks, is still being formulated. Many doctors feel that if certain abnormalities are found in the fetus even after 20 weeks, MTP should be allowed till 24 weeks because by then, these abnormalities (eg cardiac problems) can be clearly seen.

While this case of the 14-year-old rape victim may be an open-and-shut case for most of us, the law of the land has the final say. But rare and uplifting judgments such as this one show that, at times, humaneness takes precedence over everything else. IL

According to the Center for Reproductive Righ hts, mo ore than 60 perccent of the worlld’s pop pulation lives in countries where induced abortion is permitted. The situation in n various countries: Where abortion to

save a woman’s life is prohibited (25.64% of population): Afghanistan, Bangladesh, Brazil, Egypt, Iran, Sri Lanka Abortion done to save a woman’s life (13.75%): Argentina, Israel, Jordan, Malaysia, Pakistan, Saudi Arabia Abortion done on socio-economic grounds (21.58%): Barbados, Finland, the UK, India, Japan Without Restriction (39.22%): Australia, China, France, Norway, Singapore, the US

INDIA LEGAL January 15, 2016

95

Special Issue

MEDIA/ Amateur Sex Videos

Pawns in the porn game

Anthony Lawrence

Despite the mounting concerns about child pornography, the govt has forgotten amateur sex videos, which prey on young women. Why aren’t ISPs being criminally charged for giving access to them?

By Abhay Vaidya 96

January 15, 2016

W

HAT is the nature, if not criminal, of YouTube amateur sex videos such as Mumbai College Girl MMS Scandal 2013 (with 6.14 lakh views) or Hot Indian Sexy Young Lady Sex with Boyfriend (with 3.9 million views)? There are thousands of such videos available to porn consumers in India, such as Indian College girl hot sexy scandal in classroom, Indian Girls Hostel Video Leaked and Medical College Ragging, all of which ought to be pursued by the police, booked and banned outright.

of September 15

These videos are not sophisticated pornography produced by a well-regulated industry as in the US, but amount to acts of crime. In some cases, their presence in a mass medium like the internet has even led to suicides by young girls.

VULNERABLE WOMEN Unfortunately, it was sex videos such as these that remained hidden from the public glare during a recent debate on the right to pornography in the privacy of our homes.

What did not come into focus was the vulnerability of minors and young women who were filmed secretly by mobile phone cameras, spycams and webcams.

Porn websites, Internet Service Providers (ISPs) and telecom companies generate high revenue through the popularity of such sex videos which are consumed voraciously on the mobile phone platform and the computer network. They may not fall in the category of child porn. Nevertheless, these videos are of a criminal nature because they have been shot or uploaded without consent. Why aren’t ISPs being charged with criminal conduct for providing access to such videos?

It is not surprising that there is a wider audience for porn now. When a woman pens a signed essay in a popular Marathi newspaper under the headline: “I watch porn. What about you?”, we know that the nation has come a long way on the porn expressway.

ment’s stand before a bench headed by Chief Justice HL Dattu and said India cannot be a totalitarian state and the government’s intention was only to ban child pornography. He acknowledged that “pornography is a grey area without any straight answers” and if people want to watch it in the confines of their home, there was no way that the government could stop it.

The government also did not want to do moral policing, Rohatgi said, and added in the same breath that there were issues relating to the freedom of speech and expression as enshrined in Article 19 (1)(a) of the constitution which need to be respected.

The government has already withdrawn its order banning 857 pornographic websites and has assured that a mechanism would be worked out between ISPs and the Department of Telecommunications to ban child pornography. But is also high time the government tackles the menace of young girls and women being filmed secretly. This has been growing by leaps and bounds AT THE RECEIVING END (Left) HRD Minister Smriti Irani discovered a hidden camera atop a changing room in a Fab India outlet; (Below) AG Mukul Rohatgi defended the govt position on porn sites in SC

GROWING ACCEPTANCE? This was amply clear in the heated debates on TV and social media in August, when the right to pornography in the privacy of homes was discussed. There can now be no turning back in terms of a blanket ban on pornography in India. This was realized by a chastened Narendra Modi government. Not surprisingly, Attorney-General Mukul Rohatgi made all the right noises before the Supreme Court during a hearing on August 10.

Rohatgi clarified the governAnil Shakya INDIA LEGAL January 15, 2016

97

Special Issue

MEDIA/ Amateur Sex Videos

the modesty and privacy of innocent victims.

These include the Delhi schoolgirl MMS, which has inspired filmmakers in Bollywood.

These videos are remotely operated, and are shot during intimacy with a partner, in rest rooms, changing rooms, hotel rooms and trial rooms. One old man, who was arrested in Pune some years ago, had installed spycams in various rooms of a flat that he had rented out exclusively to college girls.

Much of this sexual material is generated in the form of “revenge porn” by ex-lovers, with the intention of destroying the lives of young women.

“You never know where the pinhole cameras could be hidden—they have been found behind mirrors in hotel rooms and typically, near electrical fittings. The safest thing for women to do is to ensure minimum lighting while undressing or during intimate moments,” says cyber-security expert Capt Raghu Raman.

SILVER SCREEN SCRIPTS Drishyam (top) and DevD (above) are among the movies based on MMS scandals

98

January 15, 2016

across India, especially in villages and small towns, where people are clearly not as smart as their smart phones.

MODUS OPERANDI These short videos are done during tender private moments by unscrupulous “boyfriends” and others to blackmail the girls later. While these videos of women in various stages of undress or sexual acts don’t fall in the category of “child pornography”, they are of a criminal nature as they have been shot and uploaded without consent and invade

THRIVING MARKET Clearly, just as prostitution exists because there’s a thriving market for it, so do these clandestinely shot videos which are shown by porn sites and made available by ISPs on various platforms, including mobile ones.

Porn sites solicit them on the internet itself, with attractive payment terms, thereby encouraging what could already be an organized crime.

However, these illegally produced sex videos can’t be banned because they don’t necessarily constitute child pornography.

They are of a criminal nature but just a fraction of cases get reported and acted upon by the police.

One way to deal with this is to create mass awareness among school-going girls. They need to be counseled to be extra cautious about being secretly filmed in their private moments. Also, people engaging in such criminal activities need to be identified and booked by the police in large numbers.

The most important step, however, is to demand that ISPs and telecom companies refuse to provide access to such sex videos.

They are partnering in a criminal activity with producers of porn and other websites and platforms such as YouTube. IL

.