India legal July 15, 2015 by India Legal

WHO ISLKAFRAID OF THE EMERGENCY? Advani’s fears spark off a national debate Former law minister HR Bhardwaj, Seshadri Chari, Justice Mukul Mudgal, Rajeev Dhawan speak out

NDIA EGAL I L

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

LETTER FROM THE EDITOR

INDERJIT BADHWAR

ADVANI AND THE GOALPOST HARATIYA Janata Party veteran Lal Krishna Advani, who has seen the ins and outs of power and governance, rule and misrule, corruption and probity, vendetta politics and administrative justice, is perhaps more qualified than most politicians, including just about everybody in his own party, be it Murli Manohar Joshi or Rajnath Singh, to speak on any subject—from cabbages to kings—concerning the nation. He’s been there. He’s seen it. He’s done it. And even during his dotage, the crafty nonagenarian is far from senile. In the “he’s been there” department, he spent over a year in jail during Indira Gandhi’s Emergency, rounded up along with thousands of politicians opposed to the snuffing out of democracy and fundamental rights, and bundled into a cell about which he wrote eloquently in his prison diaries. It was a remarkable compilation of anti-fascist diatribes and musings that should have established his credentials as a die-hard liberal democrat. But that last attribute dims somewhat when we reach the “done it” department, in which he rode a chariot of communal fire across the country—the Rath Yatra—which catalyzed and deepened communal divides, and ended up in the demolition of the Babri structure in Ayodhya and re-established the BJP as a Hindu nationalist party.

Advani’s opposition to the Emergency established him as a liberal democrat. But, that image was tainted after he rode the chariot of communal fire. 4

July 15, 2015

Hindu governance returned to the Indian state as a viable political methodology of the ballot, as well as well a motivating ideology to counter the prevailing miasma of socialist-big-government “developmental” Mahalanobis-ism. He and his followers made it clear that it was not the business of the central government to build and run hotels. And unlike Rajiv Gandhi who had begun to surreptitiously junk his grandfather’s socialism—but without any clearly enunciated mandate to do so—Advani’s Hindu model—backed and led by the intrepid Atal Bihari Vajpayee—clearly had behind it a strong anti-big government, pro-business popular mandate. Big, centralized government, autocratic and plutarchic economic policies had produced the kind of bureaucracy and system which made it possible for a would-be dictator like Indira Gandhi to subvert

the Rule of Law—a system of natural justice and rights in which the people are the masters and the sovereigns and the elected politicians are the servants rather than the rulers—and emerge as the head of an arrangement in which dictatorship was euphemistically referred to as “Emergency”. And now, Advani, the champion of yore, the hardened, sadder but wiser leader has issued a clarion call to prevent ourselves from falling prey to another Emergency. The nation, says, the patriarch is not Emergency-proof and constitutional rights are not as well protected as they should be from any future onslaught on fundamental rights. Now whether this is the aging war horse’s political farewell message to his country—his magnum opus summing up what he really stands for—or a call to his own party to awaken to the dangers of authoritarianism and autocratic tendencies in Prime Minister Modi’s style of governance (I suspect it could be)—is anybody’s guess. But it could also be a message to the nation from a man who has really climbed some of the highest peaks—and there are no more to climb—to exercise judgment in voting in governments and subsequently falling asleep as their rights evanesce. Many might say that Advani’s proclamation, given his own past record in promoting a gerontocracy within his own party, is hypocritical. Agree or not with political Hindutva, Advani’s democratic credentials, as the great liberal Jaswant Singh testified, remained more or less intact.

Advani’s call to guard ourselves against another Emergency could be a warning for the BJP to see the dangers of Modi’s autocratic style of functioning. I wish Advani had gone a little farther than he did and warned that what we are witnessing today in India is a greater trend towards an illiberal democracy. There is a growing state-tolerated intolerance. Self-imposed silences among leaders. Frightened, cowering bureaucrats. Politicization of universities, syllabi, centers of learning, art, drama. Minority bashing. We deal with these issues in our story: Who’s Afraid of The Emergency? Many thinkers, including veteran Law Minister HR Bhardwaj, eminent legal personalities like Justice Mukul Mudgal and Rajeev Dhawan and BJP intellectuals like Seshadri Chari express themselves. And the consensus is that India has not only grown more mature since the Emergency, but also that its legal system and countervailing centers of power are strong enough to withstand and prevent dictatorial governance, whether from the present dispensation or from other parties, regional or national, whose top-rung leaders are as authoritarian and autocratic. But kudos to Advani setting the tone for a solid national debate by changing the goalpost.

editor@indialegalonline.com INDIA LEGAL July 15, 2015

JULY 15, 2015

VOLUME. VIII

ISSUE. 21

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Niti Singh Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar Verma CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari Vice-President (Ad-Sales) Vivek Mittal-09810265619 For advertising & subscription queries sales@indialegalonline.com

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd and printed at Amar Ujala Publications Ltd., C-21&22, Sector-59, Noida. 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 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001.

July 15, 2015

LEAD

Modi’s carpet bombing Lalit Modi, the beleaguered former boss of IPL, is giving sleepless nights to the political establishment with his explosive tweets. SHANTANU GUHA RAY writes that he is having the last laugh as others squirm SUPREME COURT

Stalemate continues As the second round of hearings challenging the NJAC shows, the judiciary is doing its best to ward off executive’s intervention in appointments, reports the INDIA LEGAL TEAM THE NATION

Being emergency-proof Forty years after Emergency, questions are being raised if it can be repeated. BHAVDEEP KANG reports that the judiciary’s strength, coupled with the rise of social media, will protect India from a fourth Emergency. Plus, views of former law minister HR Bhardwaj, Justice Mukul Mudgal, BJP leader Seshadri Chari and eminent lawyer Rajeev Dhawan

22 10 28

INTERVIEW

CRIME

“Proven corruption in the judiciary”

Gujarat’s cyber sleuths

The cyber cell of Gujarat has recruited young professionals to crack internet and mobilerelated crimes, reports KAUSHIK JOSHI

Activist-lawyer Indira Jaising talks to RAMESH MENON about the need to weed out corruption and mediocrity in this pillar of democracy

TECH ECONOMY

Bankable banks?

While there is euphoria over a prospective economic revival, do Indian banks have enough capital to lend, asks SHANTANU GUHA RAY

Big brother syndrome

The 404 server error that flashes on your screen when you want to access a website could actually be the doing of an insecure government, writes PRIYVRAT CHOUHAN SPECIAL STORY

What’s contempt of court?

DR GB REDDY discerns the constitutional provisions that deal with contempt GLOBAL TRENDS

A plaintive cry

Ex-serviceman KS DHAMI writes a letter to the CJI over the govt’s failure to implement one-rank-one-pension SPOTLIGHT

The plague of plagiarism

It’s so rampant and commonplace that we have stopped noticing copying. BIKRAM VOHRA points out how authors and the media couldn’t care less anymore

Lessons for Syria

It’s time that forces loyal to President Assad and rebels arrive at a common platform to contain the Islamic State. A STRATFOR report

REGULARS

DEFENSE

ALSO

Guwahati High Court’s order on safety norms for four-wheelers. By Prabir Biswas.........19 Stoning of two Dalit boys for cracking IIT-JEE. By Ashish Mehta..........57 Exam paper leaks and their repercussions. By Salik Ahmad............64 Conservationist AGK Menon on Delhi’s bid for heritage status. By Meha Mathur...........66 Sexual harassment charge on film-maker Mahmood Farooqui By Salik Ahmad...........68 Kerala’s falling population and the fallout on its schools. By TK Devasia..............70

Edit........................................................................................4 Ringside......................................................................................8 Quote-Unquote.........................................................................9 Supreme Court..........................................................................18 Courts....................................................................................... 20 National Briefs.....................................................................53, 63 International Briefs...............................................................69, 78 Campus Update.......................................................................80 Wordly-wise..............................................................................81 People....................................................................................... 82

Cover Design and Imaging: ANTHONY LAWRENCE

INDIA LEGAL July 15, 2015

Aruna

VERDICT Justice is always violent to the party offending, for every man is innocent in his own eyes.. â&#x20AC;&#x201D;Daniel Defoe

July 15, 2015

QUOTE-UNQUOTE

“If our existence comes under threat, who do we have the nuclear weapons for?”

“There are some incidents that happen in the course of nature and destiny... you can’t fight nature.”

—Former Pakistan president Pervez Musharraf, while accusing India of destabilizing Pakistan, in The Indian Express

“Without war, the Army’s importance has diminished.” —Defence Minister Manohar Parrikar, indicating that the Indian army has lost respect as there was no war in the last 40-50 years, in The Hindu

“There was a time,…when the chief justice used to have wider consultation by seeking views of important members of the bar about a person being considered for appointment as a judge to the Supreme Court or high courts. That stopped long ago.” —Senior Advocate Fali S Nariman, slamming the collegium system in the judiciary

“They should connect themselves with the country’s traditions, culture... If they can’t, they should go to Pakistan.” —VHP leader Sadhvi Prachi, on remarks by the All India Muslim Law Board that the International Yoga Day coincided with the RSS founder’s death anniversary, in The New Indian Express

“Those who dare to show their eyes, we will gouge them out and throw them on the streets. If someone shows us their hands we will cut them off.” — Trinamool Congress MP Abhishek Banerjee, daring those who challenge the party, in The Economic Times

Parasnath Yadav, a UP minister, defending his colleague Ram Murti Singh Verma, accused of getting a journalist killed in Shahjahanpur, UP, in The Times of India

“If anybody helps a bhagoda (fugitive), it is wrong. This is wrong legally as well as morally. If anybody meets a fugitive, it is absolutely wrong. Whosoever has helped him, I think it is completely wrong.” —BJP MP RK Singh, going against the BJP’s stand that Sushma Swaraj and Rajasthan CM Vasundhara Raje did no wrong in helping Lalit Modi, in Hindustan Times

“Women are soft targets of male lust, they are considered as chattels, although in our country they are hailed as sakthi, mother, sister, nurse, life partner, face saver, all in one...” — Justice D Devadass of the Madras High Court, while delivering a judgment in a rape case, in The Indian Express INDIA LEGAL July 15, 2015

SUPREME COURT/ National Judicial Appointments Commission

Survival of the Fittest System

Even after the second phase of hearing of challenges to the National Judicial Appointments Commission Act, the collegium system is still pitted against it BY India Legal Team

HE new system of appointing judges in high courts and the Supreme Court, notified by the government on April 13, is a premature baby in the incubator, if not still-born. Its survival depends on how the five judges on the Supreme Courtâ&#x20AC;&#x2122;s Constitution Bench interpret the various facets of independence of the judiciary and parliamentary democracy as articulated by senior counsel. The judgment to be delivered by them at the end of the current hearing of the challenges to the new system may well be a few months away, but the broad contours of the issues to be dealt with are almost clear. The second phase of hearing by this Constitution Bench of challenges to the

July 15, 2015

National Judicial Appointments Commission (NJAC) Act, 2014, and the 99th Constitution Amendment Act, 2014, lasted from June 8 to June 19. During this time, the central government, some state governments led by the BJP and independent voices sought to address many of the concerns expressed earlier by the counsel for the petitioners on the new system. Whatever be the success rate of the respondents in the ongoing legal battle, it is a historic moment in Supreme Court, with judges being forced to introspect about the merits of the collegium system of choosing judges, which they devised 22 years ago. The main attack of the petitioners has been that both the Acts under challenge are

Anil Shakya

violative of the independence of the judiciary, and hence unconstitutional for abrogating the basic structure of the constitution. The basis for this argument is that both Acts seek to erase the primacy of the judiciary in the appointment process. The reason for this proposition is the presence of non-judicial members, as well as their power to prevent the appointment of a candidate recommended by judicial members of the NJAC from being recommended to the President. This would affect the independence of the judiciary and is hence unconstitutional. The NJAC is a six-member body, with three senior-most Supreme Court judges, the Union law minister, and two eminent members, with veto power exercisable by at least two members together.

The central government, through Attorney General (AG) Mukul Rohatgi, argued that the primacy of the judiciary in the appointment process is not a basic feature of the constitution, and has no necessary connection with judicial independence. To buttress this point, the AG and other respondents pointed out that the judiciary, during the pre-collegium days, did not enjoy primacy in appointments, but that did not come in the way of its enjoying its independence from the Executive, except during Emergency from 1975-1977. Secondly, the respondents argued that petitioners in this case have mainly relied on speculation, surmises and apprehensions that the 99th Amendment Act abrogates the basic structure of the constitution, with-

A MARK OF HISTORY The SC judges are now being forced to look into the merits of the collegium system

INDIA LEGAL July 15, 2015

SUPREME COURT/ National Judicial Appointments Commission

by late Justice VR Krishna Iyer: “...a collegium that is untrained in the task, selects judges in a secret and bizarre fashion. “There could be room for nepotism, communalism and favoritism in the absence of guidelines. Nowhere in the world do we have judges alone selecting other judges. The collegium is a disaster: the PD Dinakaran episode is an example.”

CENTER’S VIEWPOINT (Right) Attorney General Mukul Rohatgi (Below) The late Justice VR Krishna Iyer

“...a collegium that is untrained in the task, selects judges in a secret and bizarre fashion. There could be room for nepotism, communalism and favoritism in the absence of guidelines. Nowhere in the world do we have judges alone selecting other judges...” — Justice VR Krishna Iyer

out bringing forward “hard facts”. The third limb of their argument is that parliament, rather than the court, is best positioned to assess the needs of the changing times. The collegium system, they argued, has been rendered unreasonable by the passage of time; therefore, they suggested that parliament, in its wisdom, can change it in order to make it reasonable. The collegium system with primacy to the judiciary in the appointment process, the government argued, has outlived its relevance. It echoed the concerns once expressed

July 15, 2015

oncerns expressed by other jurists like Justice AP Shah and Justice Ruma Pal were cited. A judiciary which assumes complete control over its own composition would have a conformist or a club-like attitude. Judges tend to find virtues in others who display the same outlook. It is most unlikely that a Denning or a Kirby, or Boar Laskin or a Krishna Iyer would be appointed under this system. A collegium which decides the matter in secrecy lacks transparency and is likely to be considered a group or a faction. Therefore, prejudice and favor of one or the other member of the collegium for an incumbent cannot be ruled out, Justice Shah had pointed out. Justice Ruma Pal had expressed similar views. According to her, a chance remark, a rumor or even third-hand information may be sufficient to damn a judge’s prospects. Contrariwise, a personal friendship or unspoken obligation may color a recommendation. Consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system, she had observed after her retirement from the Supreme Court. The government suggested that such criticisms inspired parliament to devise a new, integrated participatory system of appointment of judges. The government’s answer to the petitioners’ bogey of violation of basic structure doctrine by the two Acts was more nuanced. The basic structure comprises many features like several pillars in a foundation, some of which were enumerated in the opinions rendered in Kesavananda Bharati case (1973) by a 13judge Bench. The significance of these pillars, the government argued, is that if one of

Flickr.com

them is removed, the entire edifice of the constitution will fall. Hence, in judging a constitutional amendment, the question to be addressed is whether it would lead to a collapse of the edifice of the constitution, the government told the court.

ore significantly, the government sought to clarify that merely affecting or impinging upon an article embodying a feature that is part of the basic structure is not sufficient to declare an amendment unconstitutional. This is consistent with a Supreme Court ruling in another

case that a mere amendment to an article of the constitution, even if embodying a basic feature, will not necessarily lead to a violation of the basic feature involved. Having said that, the government refused to concede that the 99th Amendment even impinges on the basic structure of the constitution. â&#x20AC;&#x153;It is our view that the 99th Amendment is perfectly consonant with it and strengthens the independence of the judiciary while upholding democracy, rule of law and checks and balances,â&#x20AC;? the AG said in written submissions to the court. As the two eminent persons on the NJAC are to be chosen by a selection committee comprising the chief justice of India, the prime minister and the leader of the biggest opposition group in parliament, the government suggested that NJAC, in fact, results in dilution of the power of the executive in favour of the judiciary as three out of six members are the three senior-most judges of the Supreme Court.

CALL AGAINST COLLEGIUM (L-R) Justice Ruma Pal, Justice AP Shah (Left) Solicitor General Ranjit Kumar

INDIA LEGAL July 15, 2015

SUPREME COURT/ National Judicial Appointments Commission

The suitability of Justice Cyriac Joseph T he second phase of NJAC hearings in the Supreme Court saw a sharp exchange of views between Attorney General (AG) Mukul Rohatgi and the Bench on the suitability of Justice Cyriac Joseph (below), currently acting chairperson of the National Human Rights Commission (NHRC), for appointment to the Supreme Court.

What was in dispute was the number of judgments delivered by him as a high court judge. The Bench believed that he delivered far more judgments than what the AG suggested. The Bench, through the Supreme Court registry, obtained data regarding the number of judgments authored by Justice Joseph in the four high courts that he served before his elevation to the Supreme Court and shared the results with the AG. The AG, who got back to the court on the issue on June 19, said many of the so-called judgments authored by Justice Joseph were, in fact, very brief, running to one or two pages. The AG further disclosed that as a Delhi High Court judge, he reserved hundreds of judgments and got transferred without delivering them, thus forcing re-hearing of those cases. But what was not brought before the Supreme Court Bench is likely to surprise the judges even further. Justice Cyriac Joseph, the NHRCâ&#x20AC;&#x2122;s website shows, had served as a judge in Kerala, Delhi, Uttaranchal (now Uttarakhand) high courts and was chief

In answer to the argument that primacy of the judiciary in the appointment process constitutes a basic feature, the government submitted to the court that basic features are to be determined only on the basis of specific provisions of the constitution as originally enacted. A judicial pronouncement cannot devise a new feature to qualify as a basic feature since something that is devised after the coming into force of the constitution surely cannot be considered a foundation of the edifice of the constitution, the government told the Court. What follows from this assertion is that the court's judgment in the Second Judges case sought to make the primacy of the judi-

July 15, 2015

Justice of the Karnataka High Court before his elevation as a Supreme Court judge. However, it is the number of judgments he delivered as a Supreme Court judge which could throw light on his professional progress. An article in The Hindu by V Venkatesan in 2013 had revealed that he authored exactly seven judgments during his tenure as a Supreme Court judge from July 7, 2008, to January 27, 2012. Venkatesan, in his recent book, Constitutional Conundrums: Challenges to Indiaâ&#x20AC;&#x2122;s Democratic Process, published by Lexis Nexis (2014), has brought out the proceedings of the NHRC selection committee, which recommended Justice Cyriac Joseph for appointment as a member in 2013, as annexures. The selection committee which recommends the names of NHRC members for appointment by the president comprises the prime minister, the home minister, the speaker of the Lok Sabha, the deputy chairperson of the Rajya Sabha and leaders of the opposition in the Lok Sabha and the Rajya Sabha. In 2013, as members of the selection

ciary in the appointment process a basic feature and thus brought the collegium system into being.

s the framers of the constitution did not envisage a system of judges choosing themselves, (as evident from the constituent assembly debates), the government implied that the court ought not to consider the primacy of the judiciary, as exemplified in the collegium system, to be a basic feature of the constitution. Having initially started with the premise that the court need not consider the constitutionality of the NJAC by comparing it with the outgoing collegium, the court has indeed

panel, both Arun Jaitley (below) and Sushma Swaraj (right), as leaders of the opposition in the Rajya Sabha and Lok Sabha, respectively, had given dissents against recommending Justice Cyriac Joseph for the post of judicial member in the NHRC. But the then UPA government rejected their dissents without giving any reasons, although a Supreme Court judgment in 2011 mandates that clear and cogent reasons be given for rejecting dissents. The selection panel had names of three retired Supreme Court judges, namely, Justice Cyriac Joseph, Justice B Sudershan Reddy and Justice VS Sripurkar, for nomination under the category of judicial member. Jaitley wrote that Justice Joseph was completely unsuitable for

being appointed NHRC member. He wrote about Justice Cyriac Joseph: “As a judge, he was known for not writing judgments. As against a few hundred judgments authored by every judge of the Supreme Court, Justice Cyriac Joseph is believed to have written only six judgments. He has been, even during his tenure as a judge, perceived to be close to certain political and religious organizations. His close proximity to religious organizations is evident from the fact that media reports have indicated that when certain nuns were sexually assaulted, as a sitting judge of the Supreme Court he chose to visit the institutions where narco analysis of the accused was being carried out in Karnataka. This was strongly objected to by members of the Bar Association in Kerala who protested against the same. He was quoted in the media as having stated that for him his religious affinity was more important than his commitment as a

come a long way by asking the counsel to give it instances of the collegium having gone wrong, of recommending names of judges who are otherwise not suitable and of instances when the collegium pushed a candidate when the government had expressed its reservations. Whether and how the NJAC survives the ongoing agnipariksha is difficult to say, but what is clear is that even if the collegium resurrects itself by virtue of the court's hypothetical striking down of the NJAC Act and the 99th Amendment, it will not be the same old collegium. This is because the court is now reasonably aware of its aberrations, and is serious

judge.” Jaitley further wrote in his dissent: “When there are other eminent names of retired judges eligible for appointment available, which include Justice B Sudershan Reddy, Justice VS Sirpurkar, suggested by the government and Justice Ravindran, Justice HS Bedi, Justice Deepak Verma as suggested by some of us, I am unable to persuade myself to concur to the appointment of Justice Cyriac Joseph as a member of the NHRC”. Sushma Swaraj wrote tersely in her dissent: “Integrity and competence are essential for public office. The proposed name lacks both. Therefore, I disagree.” The dissents were dated 16.5.2013.

and sincere to reform itself, thanks to the free and frank exchanges between the Bar and the Bench. Meanwhile, Solicitor General Ranjit Kumar told a Constitution Bench led by Justice JS Khehar that even if the court scraps the constitutional amendment and the NJAC Act, it lacked the power to hold that this will restore the previous legal position. He said: “This court can quash it (collegium system) but cannot declare that the collegium will revive because that would amount to legislating and re-enacting a provision. Legislating is within the exclusive domain of the parliament and it is not a function of this court.” IL INDIA LEGAL July 15, 2015

SUPREME COURT/ Counterpoint / Collegium System

Judicial Oxygen

Photos: Pramod Pushkarna

Elevation of judges to the Supreme Court under the collegium system has been fraught with controversy, says a legal luminary who wrote this piece exclusively for India Legal

OPAQUE SYSTEM Elevation of judges to the Supreme Court under the collegium system is questionable on many fronts

July 15, 2015

HE method and procedure of elevation of judges to the high court in the collegium system and the NJAC system is virtually the same. Public opinion is of the view that the collegium system has created hierarchical tendencies and a sense of subordination among the chief justice and

judges of the high court. Both are given the feeling that they have to be always in the good books of judges of the Supreme Court, more particularly the collegium judges and state judge of the Supreme Court. The interference of the state judge in the Supreme Court is heavily felt in matters relating to administration of high court affairs and he wields extra-constitutional authority. It is believed that in the collegium system, each judge concerns himself only with matters where he has a personal interest and he avoids unnecessary conflict with his colleagues, irrespective of the merit or demerit of the issue under consideration. The undue scope for arbitrariness prevalent in the collegium system always makes judges of the

high court more obeisant to the state judge of the Supreme Court and the collegium judges, otherwise he would have to face the risk of arbitrary transfer. HC VACANCIES The collegium system was devised with the object of filling up vacancies in high courts in a timely manner. Further, the persons to be elevated should be merited with good integrity so that there is quantitative and qualitative disposal of cases. But this objective has totally failed. Vacancies remained unfilled for unduly long periods. In every high court, there are 30-40 percent vacancies since the collegium system came into being. This is because the collegium did not enjoy a free hand. Judges who were elevated were mostly inefficient and incompetent to deal with civil and criminal appeals which constitute more than 50 percent of the pendency in each high court. Protagonists of the collegium system ask why the government did not put up stiff objection if the names were not worthy enough? The answer is two-fold. The nine-Bench judgment in the Judgesâ&#x20AC;&#x2122; Case makes it mandatory on the part of the government to accept the recommendation after reconsideration by the collegium. Many times, the government and the collegium mutually work on a barter basis to clear the names for elevation to the Supreme Court. But the failure of the government cannot be a reason to stop parliament from making a law to revamp and streamline the procedures for elevation to the higher judiciary. It is exactly for this reason that the parliament enacted the NJAC. However, the provision for eminent persons in the NJAC also raises some questions: Who is the eminent person? Should he necessarily be from the field of law? What is the criteria to define an â&#x20AC;&#x153;eminent personâ&#x20AC;?? Will he be a threat to the independence of the judiciary? Is the power of veto given to an eminent person undesirable and a threat to the independence of the judiciary? Under what circumstances can the emi-

The collegium system was devised to fill up vacancies in high courts in a timely manner. But this objective has totally failed. Vacancies remained unfilled for unduly long periods. nent person be removed? In the ordinary generic sense, an eminent person is one who is held in high esteem by society because of his excellence in any walk of life. To insist that he be only from the field of law is not desirable. The legal scholarship of the person recommended would have been dealt with by the high court collegium and the said recommendations should be based on objective material. Besides, judges of the Supreme Court in the NJAC will guide other members in the matter. EMINENTLY QUALIFIED Eminent persons should be informed and knowledgeable and as representatives of the people, would participate in the selection process. Such provision would be in tune with the preamble of the constitution. In the collegium system, the veto power was being arbitrarily and rampantly exercised to scuttle valid and genuine proposals, and was, by and large, guided by personal likes and dislikes. Unanimous recommendations made by the collegium system for elevation to the Supreme Court were largely based on mutual compromises among collegium judges to scuttle the scope of the government to resist the recommendations. In England, the Judicial Commission has some six laymen as members and they participate in the selection of judges for the Supreme Court. To argue that the NJAC is a threat to the independence of the judiciary is anathema to the democratic ethos. In fact, the collegium system has dented the true spirit and independence of the judicial system. Power corrupts, while absolute power has corrupted the collegium system. To prevent the judicial system from crumbling upon its own weight, timely reforms need to be taken. The triumph of the NJAC would be the triumph of justice, truth and democracy. IL

SYSTEMIC FAULT? There is a growing clamor that reforms are a must to invigorate the judiciary

INDIA LEGAL July 15, 2015

SUPREME COURT

Crèche in court premises COURT with a crèche facility may sound incredible but the apex court has shown the way. It has allocated two rooms (in one of the advocates’ chamber blocks), earmarked for guests, for setting up a crèche. The facility will be availed by its staff and advocates. The crèche facility will be open from July 1, when the summer vacation ends. To start with, 10 toddlers between six months and three years, will be taken in. The timings (8.30 am to 6.30 pm) are enough to keep

women advocates and other SC staff relaxed. All facilities needed for pre-school children will be available at the crèche. The fee is `5,000 per child. Parents will have to share the burden of dropping the kids and picking them up in the evening. Trained staff will take care of them. An advisory committee set up by the chief justice of India and comprising of childhood experts will ensure that the crèche runs hassle-free and is properly managed.

Judiciary needs CBI may probe journo’s death more money HE funds set aside for the judiciary aren’t enough, the Supreme Court told the center recently. While pulling up the government, the court pointed out that 0.07 percent of the total central plan outlay was too little for the smooth functioning of the judiciary. A five-judge constitutional bench raised the issue while hearing arguments against the National Judicial Appointments Commission. The judiciary as a whole has been upset with the center over this issue, and many chief justices of India have taken up the matter with the central government. Even the present Chief Justice of India HL Dattu has called for a proper procedure that takes into account the contribution of the judiciary while taking a final call on budgets for the sector.

HE case of the horrific killing of a journalist in Shahjahanpur, Uttar Pradesh, has caught the Supreme Court’s attention. Acting on a PIL filed by Satish Jain, a Delhibased journalist, pleading for a court monitored CBI probe into Jagendra Singh’s death, the apex court issued notices to the center and Uttar Pradesh government. The petitioner pleaded that no arrests had been made so far despite clinching evidence and that the local police may be influenced. The court also asked the Press Council of India to respond to the petitioner’s demand for guidelines to ensure journalists’ safety. All were

required to respond within two weeks. An FIR has been filed against Samajwadi Party minister in the UP government, Ram Murti Singh Verma, and five policemen in the case. Police officials allegedly raided Singh’s house on June 1 in Shahjahanpur and set him on fire. He died on June 8 at a Lucknow hospital. Singh’s family claimed that the journalist had to pay with his life for exposing Verma’s involvement in illegal mining and forced occupation of land on his Facebook page. It also alleged that police officials burnt Singh to death at Verma’s behest.

Former chief justice passes away FORMER chief justice of India MM Punchhi passed away recently. He was 82 years old. Punchhi took office as chief justice in January 1998 and retired in October the same year. He became a Supreme Court judge in 1989. — Compiled by Prabir Biswas Illustrations: UdayShankar

July 15, 2015

COURTS/ Judgment/ Automobiles

Safety net for car consumers A Guwahati High Court judgment on safety and emission standards for four-wheelers is a wake-up call for auto-makers in India By Prabir Biswas

HE Guwahati High Court recently took strict cognizance of two petitions that drew its attention to the rampant flouting of safety standards and emission norms by auto-makers in India. A two-judge bench, comprising Acting Chief Justice K Sreedhar Rao and Justice PK Saikia, in its interim order asked the center not to allow auto manufacturers to release and sell small four-wheelers with a mass up to 1,500 kg without putting them to crash-testing and emission scrutiny. The court also did not spare a new category of vehicles introduced by the center, a “quadricycle”, and put the same conditions on them. The categories referred to by petitions were M1 (passenger cars having not more than eight seats, in addition to the driver’s seat) and N1 vehicles (used for carrying goods and having a gross vehicle weight of not less than 3.5 tonnes). The center has relaxed the safety measures applicable for M1 and N1 categories, the counsel for petitioners Dhruv Mehta pleaded. He claimed that manufacturers of M1 and N1 vehicles do not conform to safety standards, as mandated by law, and yet sell them to customers. He alleged that the manufacturers bypass the frontal impact test, so crucial for safety. A video demonstration was shown to the court to prove that small cars manufactured in India do not clear the crash test conducted

by the European New Car Assessment Programme (ENCAP). The petition even placed the report of a simulated test to claim that any frontal collision of a small car at a speed of 60 km per hour is dangerous for the driver and inmates, despite the seat belt. Mehta cited provisions of the Motor Vehicles Act, 1988, to argue that automobile manufacturers need to strictly follow safety norms and emission standards. The petition also pointed out that the ENCAP test showed that small cars sold in India have failed to meet emission standards, besides the crash-test. The category of “quadricycle”, under the amended provisions of Rule 2 (z) of the Central Motor Vehicles Rules, 1989, was also referred to by Mehta. He claimed that the center could not get away by relaxing rules for safety norms and emission standards for “quadricycles”. He argued that the definition of these vehicles, as per the Central Motor Vehicles Rules, 1989, clearly indicated that all standards set for M1 vehicles applies to them as well. They can’t be allowed to conform to standards set for three-wheelers and two-wheelers, the counsel argued. Based on all the material presented, Mehta pleaded for an interim measure. Commenting on the high court order, a highly-placed judicial source said that this is a message to the powerful auto industry that it can no longer afford to play with the lives of consumers. IL INDIA LEGAL July 15, 2015

COURTS

Age rules quashed he age relaxation announced by Tamil Nadu Dr Ambedkar Law University for the 201516 session in its School of Excellence in Law has been stayed by the Madurai Bench of the Madras High Court. The notification set no age bar for SC/ST candidates, made 21 years the criterion for other categories in five-year integrated courses and removed the age limit for the three-year law degree courses. In his petition, a Maduraibased advocate alleged that it vio-

Birth upheld jawanâ&#x20AC;&#x2122;s plea that his mother be compensated for his birth was turned down by the Gujarat High Court. Rajesh Laljibhai Patel was born despite his mother having undergone sterilization. His mother, Vijuben, went to a lower court in Gujaratâ&#x20AC;&#x2122;s Surendranagar district when he was two years old. She complained that because the sterilization was not properly done, she conceived her fifth child. She also demanded `50,000 for

bringing up Rajesh, also making him a plaintiff in the plea. The lower court had granted her `25,000 in 1992. But the district court much later reversed the order and asked the family to return the compensation in December last year. It ruled that Vijuben, by inking the consent form, agreed that there were chances of error in the surgery. It also felt that she could have easily aborted the child. As his mother was no more, Rajesh appealed in the high court in April this year. But the court went by the district court verdict and ruled out

Rebuilding of mosque stayed Faridabad court refused to allow construction of a par t of a mosque in Atali village in Vallabgarh, Haryana. Tension has been building around this issue for some months and sparked a communal conflagration in the village on May 25. In the rioting,

A 20

July 15, 2015

lated Legal Education Rules, 2008, adopted by the Bar Council of India (BCI), which mandated an age limit for law degree courses. Incidentally, the university had only followed the notification of the BCI passed in 2013 which did away with age restrictions enshrined in the 2008 rules. The petitioner wanted the court to quash the 2013 notification. He said it defied the Supreme Court order in favor of age restrictions. The court has issued notices to the registrar of the university, secretaries of the Ministry of Law and Justice, Tamil Nadu government, BCI and the University Grants Commission.

Muslim homes and shops were set on fire. The court put the construction on hold till the first week of July, hearing a PIL filed by Suresh Chaudhury who stays in the same village. His counsel cited several provisions in the case to support his plea for a stay. According to media reports, the district administration had raised hopes of the Muslims by saying that they could star t construction before Ramzan season sets in on June 18.

Privacy rights of children resenting “personal” documents of children in courts, in case of family disputes, is an infringement on their right to privacy and permission must be sought from the court for doing so, the Delhi High Court ruled. It also said that such documents must be handed over in a sealed envelope. It noted that the onus lay on the lawyers to tell their clients that

P Transgenders under spotlight he transgender issue became a bone of contention between the Delhi High Court and the center. The court pulled up the center and UPSC as to why there was no mention of transgender as a “third gender” option in the application form for civil services preliminary examination to be held in August, despite the Supreme Court’s directions. It was hearing a PIL that wanted the UPSC notice quashed.

placing on record such documents in a casual manner before the courts could have grave repercussions. The court was hearing a case wherein a couple was fighting for the custody of their minor children. The father, in order to make his point stronger, had attached a copy of a “personal diary” of one of them. The lawyer presenting the father was pulled up by the court. The court also held that if possible, all family court proceedings be conducted “in-camera”.

The center later told the high court that it had already approached the apex court, seeking clarity on the definition of “transgenders”, and who was authorized to certify them as “third gender”, etc. The center said that rules would be framed for favoring transgenders (including reservations) once there was clarity. Meanwhile, UPSC pointed out that bisexuals, gays and lesbians also come under transgenders. The court said it would take up the matter after the apex court had looked into the center’s plea. It fixed the next hearing on July 27.

Professor gets special care erious health issues prompted Bombay High Court to ask Nagpur jail authorities to immediately shift Delhi University professor Dr GN Saibaba to a private hospital. Saibaba, arrested last year for his alleged association with Maoists, is crippled below the neck and unable to move without support. The court made it clear that the professor’s wife and brother could go along with him but without any cellphone or laptop.

It also made it mandatory for a medical officer deemed fit by the prison authority and a doctor decided by his family to accompany the professor. The prison staff was directed to guard the hospital day and night. The public prosecutor wanted the high court to let the sessions judge in Nagpur take a call after taking stock of Saibaba’s health condition, but the high court felt that things could get worse in case of any further delay. As per the court’s order, Saibaba was to stay at the private hospital until the court felt otherwise. — Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL July 15, 2015

LEAD/ Cricket/ Lalit Modi’s Tweets

THENAME-BOMBER I Lalit Modi’s carpet bombing through constant tweets has implicated people in high places, making the political establishment duck for cover. His swagger comes from the knowledge that there is no proven case against him By Shantanu Guha Ray

N the heart of Delhi—actually in coffee shops in plush Khan Market—most people are checking the Twitter handle of Lalit Modi and wondering what will surface next. Cricket’s richest fugitive, holed up in London, is tweeting every now and then, each message creating ripples in Delhi, a city Modi loved to visit for family, work and late night soirees. He is enjoying every moment of his new-found glory, a star despite defeat staring at him in the face. After all, his on-the-edge-pot-boiler script is making life difficult for those who got involved with him, his Indian Premier League (IPL) and all that is associated with cricket in India, including sleaze cash. Modi knows people remember his past. As a student at Duke University in the US, he was charged with drug trafficking, kidnapping and assault after a busted cocaine deal. He returned to India without finishing his probation, pleading illhealth but was totally unrepentant.

GROWING FOLLOWING Friends who know him claim that he knows he can survive after burning bridges. His best author was Paulo Coelho and the flashy archer Arjuna from the Mahabharata was his favourite character. In the past, he loved name-dropping because he was powerful. Now, out of power, he loves name-bombing. That is his way of staying relevant. The latest to join I-Love-Lalit bandwagon are a bevy of former judges, a former top cop, a top editor and a seasoned economist, their revelations giving instant ammunition to a mentally stressed Bharatiya Janata Party (BJP) leadership. Former Supreme court judges, Justice Jeevan Reddy, Justice SB Sinha and the late Justice

July 15, 2015

UNI

UC Banerjee supported Modi, arguing “he is not a fugitive”. They were joined by former Mumbai police commissioner RD Tyagi. The New Indian Express editor Prabhu Chawla also stood witness for Modi in the case along with his wife Mrinal and father KK Tyagi in a London court. Interestingly, Chawla—whose son Ankur, a lawyer, often represented the BCCI—was once keen to acquire an IPL team in partnership with some friends. There was another one, Surjit S Bhalla, a top economist, who penned an opinion piece in The Indian Express, saying why it was not wrong for Vasundhara Raje and Sushma Swaraj to help Modi. Bhalla’s moot point was the same as the judges: Modi is not a fugitive. But their collective stand did not silence Delhi’s guns of opposition. Consider this one. Officers in the

Intelligence Bureau (IB) are wondering what to do with the case of Vivek Nagpal, a controversial businessman, whom Modi described as a top hawala dealer in Delhi, and Omita Paul, President Pranab Mukherjee’s powerful secretary, whom Modi claims he is close to. That Nagpal was sitting in a special row during the swearing-in ceremony of Narendra Modi’s cabinet last year is not good news for the president’s office or the ruling BJP. Worse, Modi—almost like a Guy Fawkes of cricket—has attached a 75-page document in PDF format on Nagpal in one of his tweets, offering loads of detail on this controversial businessman, who is often seen at an exclusive club at The Oberoi in Delhi. The BJP is also worried because there are reports that officers of the Income Tax—some of them on a hyperbole after the PM told

GIVING ’EM SLEEPLESS NIGHTS (Clockwise from left) Modi’s tweet mentions his meeting Priyanka and Robert Vadra in London He also says he is close to Pranab Mukherjee’s secretary Omita Paul An unwell Jagmohan Dalmiya is not being shown the troublesome tweets

INDIA LEGAL July 15, 2015

LEAD/ Cricket/ Lalit Modi’s Tweets

them not to fear any minister—are keen to probe whether Modi used a charge card of Rajasthan CM Vasundhara Raje for expenses abroad. IT officers, it is rumored, could even hand over the files pertaining to the charge card issue to the Enforcement Directorate (ED). These are not cases in isolation. These are new fireflies in the Lalit Modi smokescreen that already has 9,00,000 followers on Twitter. Only a fortnight ago, Modi had 5,00,000 followers. There are chances the figure could cross 1,50,00,000 by the end of June. His followers want more, some tweeting back: “Wow Lalit, Yeh Dil Maange More”. The BJP does not know what has hit the party. “He is making baseless statements. The party’s position is clear, he is a fugitive and will be brought back to India soon,” argues BJP’s Sambit Patra, who has been spending a little over 14 hours in news studios and offering telephonic comments. The party, it is reliably learnt, has even set up a core team to handle the Modi crisis. UNRUFFLED MODI Modi, on the contrary, is enjoying life. His friends in Delhi claim that UNI

the former IPL chief commissioner is partying regularly, regaling his friends with what he calls “the story of my assassins”. He said he borrowed the line from a novel written by journalist Tarun Tejpal, who started Tehelka, an investigative magazine. “Where is that bloody fellow, hiding somewhere in India?” he even asked a London friend. And then, he was back on his tweets. “So all those (who) are on a witch hunt— time to know you all live in (a) glass house. By the way I document every meeting when someone asks for a bribe and I circulate to my lawyers (xyz) has asked for this in exchange for this. Off course I never paid. But record I did,” the disgraced cricket czar tweeted recently. SHOCKED CONGRESS The thinly veiled threats—Modi is tweeting almost every hour—is increasing everyone’s stress levels, the latest being how he dined with Priyanka and Robert Vadra last year at a London restaurant. Former law minister HR Bhardwaj told India Legal: “Lalit Modi has started a storm and no one will be able to escape it.” A flabbergasted Congress spokesperson, Randeep Surjevala, called Modi a juvenile, almost like a teacher admonishing a Class III student, and kept quiet at that. Probably the

“So all those are on a witch hunt —time to know you all live in (a) glass house. By the way I document every meeting when someone asks for a bribe and I circulate to my lawyers... Off course I never paid. But record I did.” Getty Images

suave Surjewala—high on energy in busting his BJP opponents on the Modi issue—did not know how the Vadras would react to the tweet. Surjewala knew Modi would not stop at that. He has already castigated the current IPL head Rajeev Shukla, asking about “secrets of his wealth from a lowly reporter to a television magnate”. There were rumors that Modi could soon drop some more names to link Shukla to some “questionable characters” in cricket. Shukla, who refused comment, has—it is reliably learnt—already tried to reach out to Modi, who has not responded. The disgraced cricket czar does not want to talk but drops hints of fire, indicating in his interview with India Today how “in time of war the general never sleeps, you have to be ready for the unexpected”. He has also demanded that the Congress come clean on its association with the “Modi family”. “My specific query to Congress Party —specifically—has the Modi Group or as a matter of fact any group ever provided you any of your MP’s any hospitality, favors, election funding, rides on planes, hotel, cars, dinners, plants in your constituency etc etc,” he tweeted. Modi knows he has everything on his side, the most important being the law. He

—A tweet from Lalit Modi

has enough ammunition as he has meticulously maintained his records, taped his conversations and collected dope on India’s corrupt heads. Consider this one, another Modi beamer, to those who sought favours from him: “I have record book 4 each and every ticket seat no wise. What value it was and who paid for it cash or check or free,” tweeted Modi. He is wanted by the ED for economic offenses but positioned himself as a crusader against corruption in politics. A line added to his Twitter profile reads: “Busy cleaning Political Mafia”. He has even gone after finance minister Arun Jaitley, asking him to “tell the truth, for once”. “Bureaucrats #public #servants please also declare if you have taken any favor, hospitality cash etc etc from #modi family in the past,” he tweeted. “While we are cleaning up —let's not leave the babus who have been quietly siphoning or blackmailing all of us like in ED and IT departments.” EXPLOSIVE TWEETS Writer-filmmaker Pritish Nandy says he has become a fan of Modi: “Whether you like @LalitKModi or not, follow his twitter ID. It’s explosive. I have a feeling he has law on his side and hence, confident.” Former CBI director RK Raghavan

WHEN MOVERS ARE SHAKEN (Clockwise from facing page top left) Former CBI director RK Raghavan; Vasundhara Raje; Sushma Swaraj; IPL head Rajeev Shukla

INDIA LEGAL July 15, 2015

LEAD/ Cricket/ Lalit Modi’s Tweets

Lalit K Modi/Instagram

Confident of the ammunition that he has, he’s enjoying life with the glitterati, like supermodel Naomi Campbell (above).

wrote in a portal that “Interpol was not a super investigating agency that can be ordered about by all and sundry to nab dreadful criminals. The fact is that the Lyonbased organization is a paper tiger, a little more than a glamorous post office, which has been overrated by some ignoramuses.” Raghavan, who once headed Interpol in India, said in a telephonic interview that one should not read anything into the pictures of Modi with former Interpol SecretaryGeneral Ronald Noble which have been floating around. “Dubious people often want pictures with powerful people. But Noble has left the Interpol and you should not take everything Modi saying as gospel truth.” Noble, in fact, told The Indian Express that New Delhi never sought any extradition of Modi during the time he (Noble) was with Interpol. Raghavan said that even if the ED gets enough evidence against Modi to seek his extradition, “it would take several years before anything of significance takes place”. COVERING UP He cited the example of former Indian Navy Lt Commander, Ravi Shankaran, involved in

July 15, 2015

the War Room leak case at Naval Headquarters. Shankaran is currently holed up in London and India has not been able to extradite him despite substantial evidence against him. In fact, a UK court quashed an extradition order issued by the British Home Secretary. In short, 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. The palpitations are evident in the BJP headquarters. But the BJP is still nervous, the smoke has not died down for the party. Arun Jaitley is issuing clarifications on the sidelines of a meeting in Stanford, updating himself on a police case filed against him by party colleague Kirti Azad in a Delhi Cricket issue. Azad has also blamed Jaitley for being the root cause of the crisis of Indian cricket of which Modi was once an integral part. Sushma Swaraj, who once followed none on Twitter, is tweeting in response to attacks on her integrity. And many BJP MPs have demanded the party should not help Modi, a bhagoda (the term—till recently—was used by the BJP for Arvind Kejriwal). But no one knows how to stop, or even control Modi. In Kolkata, a physically weakened BCCI president Jagmohan Dalmiya, who has several run-ins with Modi in board meetings, is not shown the tweets by his son, Abhishek, because no one wants Dalmiya to get disturbed about the allegations against almost anyone and everyone in cricket. Strangely, it was the BCCI that had alleged that Modi had manipulated the IPL process, handed out favors and run the tournament for the benefit of a coterie of family and friends. But now the world’s richest cricket board is totally silent. But Modi threatens to clean Indian politics like Gandhian Anna Hazare. Except, as a portal wonderfully remarked: “Cricket’s consummate insider is the antithesis of Hazare, with his Armani suits, Rambagh Palace suites and jet-setting exile in London and Ibiza and Montenegro, akin to the chemo that destroys everything in its path—good, bad and indifferent.” The story is far from over and all eyes are on the monsoon session of parliament. IL

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

NDIA L EGAL I INDIA EGAL `100

June 30, 2015

Caught E TAG: d laws ial54egalonlinee.c.cocoom ERITAG ive H tween tangle www.ind `100 ut ec ex be 8 diciary, NJAC: Juntinue to spar May 31, 2015 co

NDIA L

RY: S VICTO AMMAâ&#x20AC;&#x2122;artling verdict The st

KEJ IW AL V StanRd-o ff simSmJUNG: ers 28

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

N A C G KIN

WHY ISS

W THE LA

ENT F DIFFER

OR HIM

A N D FO

O ALS VER merges e SE O NOO S?: RS S t one, r NGO e biggesbattle fo as th others e whil ival 36 surv

MON HE COM

MAN? 24

CENSORSHIP: Thumbs up for AmbedkarPeriyar Study Group 36

L EGAL www w.iind ial

egalo

nline

`100

.com

MO MileDsIt:o Go

The rematrinumped-up e s to be uphorriiaia done to contin O boost g ues but rowth a much n d d e ve PAC H lopmen CAS AURI t E

ALS

TThe Th he trttrumped-up ruum mpe pedd-up up eeuphoria upho up horiria co ccontinues con onnttin tin inue ues bu bbut uutt mu m much ucchh remains boost growth rre emain ins ttoo bbee do ddone oonne ne ttoo bbo oost osst ggr row owth th aand nndd ddevelopment evel ev elooppm meent nt 2222

IED SSIF CLA MENTS: s U DOC are Govt ? uth Why tth he ttr 44 f o y wary

ARU JustiNceA SHANBAUG derailed : 40

June 15, 20 15

JUSTICE DHINGRA: Man behind Vadra land probe 46

VYAPAM HORROR: 32 dead and still counting 50

Ă&#x20AC;QGV : ICC guilty KLP

SPECIAL: 48 Kashmirâ&#x20AC;&#x2122;s teleterrorism 44

INDIA RAIL N &$* WAYS: X `29,2 QHDUWKV crore 36.77 scam 44

N Sta JAC: ove lemate appo r judges â&#x20AC;&#x2122; intm pers ents ists 10

ENC

2^]cPRc ) 4= 2^\\d]XRPcX^]b ?ec ;cS 0 ( BTRc^a %' 6PdcP\ 1dSSW =PVPa =>830 D ? ! " (

THE NATION/ Emergency

Is India EMER

Forty years after the Emergency, questions are being raised if it can be replicated today. Will Narendra Modi get so besotted with power that he will crush dissent and become dictatorial? Not a chance, say experts By Bhavdeep Kang 28

July 15, 2015

T’S that time of the year again, when victims of (India’s third) Emergency swap memories of midnight arrests and brutal beatings, the thrill of sheltering fugitives and posting “seditious” material on public walls. Some hike up their trouser legs to display 40-yearold scars of lathi-bashing. Others, not yet in their 50s, recall their adventures as child couriers, delivering money or letters to leaders gone underground. LK Advani warns against a reprise, as he did in 2003, 2010, 2012 and earlier this fortnight. The Congress maintains a sheepish silence. The 40th anniversary of Emergency deviated from

GENCY-proof?

the standard, with the BJP making a bigger fuss than usual. Prime Minister Narendra Modi started his day with a tweet on the “darkest hour” of Indian history. BJP president Amit Shah held forth on the evils of a “dictatorial mindset” to a packed audience, which included MISA detainees draped in yellow scarves, against the backdrop of Modi in Sikh avatar, evading arrest in 1976. Doordarshan announced a five-part series on Emergency, lest we forget the excesses the Congress is capable of. For the first time, the Congress—oblivious

to the irony—raised the Emergency bogey and characterized Modi as a dictator-in-themaking. The centre-Left revived its authoritarian leader narrative, reading in Modi’s unperturbed demeanour in the face of scandals popping up like chicken pox sores, a sinister intent to crush dissent and seize absolute power. The fact is that Modi couldn’t exercise absolute power even if he wanted to. Twentyfirst century India is Emergency-proof. If Modi is under pressure because his ministers can’t keep their noses clean, in all

ARCHITECTS OF EMERGENCY (Facing page) Indira Gandhi with son Sanjay (Clockwise from top left) George Fernandes being jailed during Emergency; images of public anger and police wrath

INDIA LEGAL July 15, 2015

THE NATION/ Emergency

“The Gang of Five— VR Krishna Iyer, PN Bhagwati, YV Chandrachud, DA Desai and O Chinnappa Reddy—ensured that the judiciary is now co-equal or even superior. The Supreme Court is no longer just a pillar of democracy, but it has made justice a participatory process.” —Rajeev Dhawan, eminent lawyer

likelihood, he will deal with it through the eminently democratic means of reshuffling his cabinet. A rap on the knuckles and/or a possible reassignment for Sushma Swaraj, Arun Jaitley and Smriti Irani and life goes on. Even Rajasthan chief minister Vasundhara Raje, who commands the loyalty of a majority of BJP MLAs and thus can bully the party president into publicly declaring support, knows she cannot indefinitely cock a snook at the center. The pre-conditions for an Indira Gandhistyle Emergency are a weak judiciary, a vulnerable media, two-thirds majority in both houses of parliament and a leader who exercises absolute control over the ruling party. None of those conditions exist today and— regardless of pessimists who insist that an Arab Spring is followed by a cruel ISIS summer, thereby diminishing the world’s democracy quotient—are unlikely to exist in future. TWO EMERGENCIES India’s first two emergencies were declared in wartime, from 1962-68 and 1971-75. In the wake of the Indo-Pakistan war, food shortages, industrial strikes and post-war economic fallout fuelled public discontent and made a hate figure of Sanjay Gandhi. Increasingly insecure, a victim of bad advice and uneasy-lies-the-head syndrome, Indira Gandhi declared a state of Emergency for the

July 15, 2015

third time. Emergency in peace-time became a dictatorship, with all liberal institutions throughly cowed. It was a paradigm shift in the concept of governance, based on the belief that absolute power was needed to provide firm government. Parliament became a cipher, as did the higher judiciary. A situation that does not obtain today, says eminent lawyer Rajeev Dhawan. The judicial texts of the constitution, once weaker than the political texts, are now stronger. “The Gang of Five as I call them—(Justices) VR Krishna Iyer, PN Bhagwati, YV Chandrachud, DA Desai and O Chinnappa Reddy—ensured that the judiciary is now co-equal or even superior. The Supreme Court is no longer just a pillar of democracy, but it has made justice a participatory process. We see more OB vans parked outside Supreme Court than parliament.” The landmark Kesavananda Bharti Case placed limits on the power of parliament to amend the constitution. Indira Gandhi sought to emasculate the judiciary through a series of constitutional amendments. Today, any constitutional amendment or imposition of Emergency is subject to judicial review. Nor can the government of the day, regardless of its legislative strength, rig the judiciary. The Three Judges Case (particularly the 1993 Supreme Court ruling on appointment of judges) firmly establishes the collegium

photos:supremecourtofindia.nic.in

system and does not allow the government to arbitrarily pick, choose and supersede justices. The National Judicial Appointments Commission, so strongly favoured by both the UPA and NDA governments, is currently facing judicial review and being heard by a five-judge Bench.

demographic Hindus.” Nor can the media ever again be subject to censorship. Prasar Bharti chairman A Surya Prakash observes: “Today, there are 180 million TV households, out of a total of 250 million. And of these, 160 million have access to cable. According to RNI figures, the combined print order of our publications is COUNTERVAILING FORCES 26 crore, out of a population of 125 crore.” With the multiplicity of political players and Even if these figures are grossly exaggerated, growth of regional politics, the era of twoclearly the Indian mass media cannot be thirds majority is at an end. The NDA enjoys policed due to its huge size. a strength of 336 in the Lok Sabha, but just Perhaps the biggest game-changer in this 64 in the Rajya Sabha. Nor is the BJP a respect is the internet. A nation’s democracy monolithic organization. Amit Shah is coris today judged by its citizens’ unhindered rect when he says that the access to the internet. BJP can lay claim to interIndia is estimated to have The pre-conditions nal democracy more than the third largest number for an Indira Gandhiany other party. Free of of cyber-citizens in the dynasticism and subject to style Emergency are a world and that is just 20 the moderating influence percent of the total popuweak judiciary, a of the RSS, it does not lend lation. Attempts to censor vulnerable media, itself to growth of autocrainternet freedom have cy. As political scientist DL proved utterly futile, as two-thirds majority in Sheth said in a recent lawyer Abhishek Manu both houses and a interview to Scroll.in: “I Singhvi discovered when leader who exercises may see authoritarianism he tried to stop distribucoming from the Marxist tion of a controversial absolute Left, but not from the control over the ruling video clip featuring him Hindu Right. There are with a lady lawyer. It party. None of those just too many countervailcontinued popping up ing forces among the conditions exist today. on YouTube, as did

THE INDOMITABLE FIVE (L-R) It’s thanks to the judicial efforts of Justices VR Krishna Iyer, PN Bhagwati, YV Chandrachud, DA Desai and O Chinnappa Reddy that the country is Emergency-proof

INDIA LEGAL July 15, 2015

THE NATION/ Emergency/Justice Mudgal

“Emergency cannot happen again” JUSTICE MUKUL MUDGAL, who was appointed by the Supreme Court to probe the cricket betting scam, speaks to RAMESH MENON on why he thinks an Emergency will not happen again

“

ne of the institutions that miserably failed during the Emergency was the judiciary. I see it as one of the darkest chapters of Indian democracy. All this was because one woman felt insecure due to political developments at that time. Only Justice HR Khanna stood up against the Emergency, while others just gave in. For this, Justice Khanna had to pay

Anil Shakya

July 15, 2015

a heavy price. Mrs Indira Gandhi was so vindictive that she ensured that he never became the chief justice of India. “I do not think that the Emergency can be imposed again. Today, a lot has changed since the seventies. Today, the media is stronger and larger. It has a lot of visibility and that itself will ensure that Emergency will not happen again. “I sincerely feel that today the judiciary will also stand up against any move to enforce Emergency. At least, I hope that will be the case now because of the media. “The minute anyone starts working towards an Emergency-like situation, there will be stiff opposition to it from every quarter. People are much more aware today than they were before. They have experienced one Emergency and that was enough to teach them what it would do to their rights. During the Emergency, Sanjay Gandhi ran riot with the rights of people. No one can do that today and get away like Sanjay did. “Look at how youngsters today are on their toes as they are better informed because they are hooked to the internet all the time. They know what is happening in their country and elsewhere. Information is so easily available. Today, you cannot control the internet. You cannot stop sms and Whatsapp. In those days, one of the rare protests came from The Indian Express that ran a blank editorial. Today, there will be many forms of protest that will come from all over the country. “Emergency can only be imposed if there are serious reasons like an external aggression, financial crisis or internal danger. There are sufficient safeguards that we have today that will not let an Emergency happen again just because someone wants it.

”

another juicy documentary on Robert Vadra. Social media has emerged as perhaps the most significant deterrent to authoritarianism. It has fuelled civil society movements across the globe. In India, the political impact of social media platforms was exemplified by Anna Hazare’s anti-corruption agitation of 2011. While cyber-savvy politicians like Narendra Modi can use social media for political advancement, they cannot control it. And nothing stops the opposition from exerting a counter-influence. IMAGINARY FEARS? So, Advani’s fears of Emergency redux, echoing the paranoia of the center-Left vis-a-vis Modi, are based on factors other than a genuine threat perception. In 2012, he was similarly outraged by the arrest of political cartoonist and anti-corruption crusader Aseem Trivedi and moved to say: “I have started wondering: Is today’s political set-up worse even than the Emergency? Aseem Trivedi has been arrested, and charged with sedition, an offence punishable with life imprisonment!” Advani was missing from the recent BJP’s anti-Emergency show, organized by the Shyama Prasad Mukherjee Foundation, although the organizers claimed he had been invited. It is no secret that the BJP old guard has been feeling marginalized by Modi & Co. Rumor has it that Amit Shah was not

scheduled to turn up for the function, but was advised to do so, in case Advani decided to show up and embarrass the current dispensation! The grand old rath yatri has yet to reconcile himself to the fact that the “Atal-Advani” domination over the Jan Sangh-BJP since the early 1970s—made possible by the murder of Deen Dayal Upadhyay in 1968 and the retirement of Nanaji Deshmukh—has ended with Modi. It was Advani who bypassed the RSS and declared Atal Bihari Vajpayee the BJP’s prime ministerial nominee in 1996. He then groomed a stable of leaders—Arun Jaitley, Sushma Swaraj, Venkaiah Naidu and Ananth Kumar—all of whom failed to make the prime ministerial cut. He took his own shot in 2009 and failed. After which, RSS Sarsanghchalak Mohan Rao Bhagwat, sick and tired of the jostling for position between Advani’s protegees (with Rajnath Singh as the only outsider), decided to take the BJP in hand. It was the RSS which decided on Nitin Gadkari as party president, only to replace him after a full term with Rajnath Singh. Again, it was the RSS which pragmatically (although not happily) chose to project Modi as prime ministerial nominee and—for the first time in its history—back him with everything they had. A fact that Modi and Shah are unlikely to forget. IL

GENERATIONAL SHIFT (L-R) LK Advani is yet to get over the sidelining of the earlier BJP brass by Modi

INDIA LEGAL July 15, 2015

THE NATION/ Emergency/Interview/HR Bhardwaj

“Advani should openly say that he feels that the current regime is moving towards dictatorship”

R HANS RAJ BHARDWAJ, 79, who was minister of law and justice more than once and was elected to the Rajya Sabha numerous times, has had a chequered career having witnessed tumultuous times in Indian politics. Earlier, he was a senior advocate in the Supreme Court and a public prosecutor for Delhi Administration. He was an ardent follower of Nehru’s vision and remained a Gandhi family loyalist for decades. In a freewheeling candid interview, he spoke to Managing Editor RAMESH MENON on the dangers to Indian democracy and why there is hope of a new India. Is there any possibility of another Emergency? Indians have powerfully demonstrated numerous times how they can change regimes when they want to. Emergency is not a possibility now as institutions have stabilized. The collective wisdom is strong and will keep democracy alive. We have shown how, with the help of our constitution, we can solve difficult problems. Lack of probity in public life is now immediately resented. Provisions for Emergency are part of our constitution but it has nothing to do with day-to-day governance. This is a country that fought for fundamental rights. LK Advani recently said that he cannot rule out the possibility of another Emergency. Advani should make his position clear on this. What does he actually want to say? Why is he mincing words? Advani should come out and openly say that he feels that the current regime is moving towards dic-

July 15, 2015

tatorship. Emergency was there 40 years ago. So many governments have changed. If he has seen something coming, he should warn us. Are there restrictions on him or others in the party? He must speak up. What is your opinion about the eagerness of the government to control various cultural bodies and public institutions? It is necessary that the cultural heritage of India is protected as it is vital for the country’s sustenance and growth of a secular democracy. Prime Minister Modi has a huge responsibility. Even the President of the United States, Barack Obama, had to point out that India should work towards protecting Article 25 of the constitution. Nobody should be allowed to tinker with the secular democracy of India. No leader should even try doing it. What in the recent past has disturbed you? The decline of various institutions worries me. For example, the judiciary is under

tremendous strain. It must be completely independent. Only judges should be allowed to control the working of the judiciary. There is tension in parliament as it is being run on compromises. Parliament must encourage the best debates and not just push legislation through as is being done today. New ideas are not being implemented. Only rhetoric is prominent. During Nehru’s time, we saw great contributions as the stress was on raising scientific temper and building institutions. Let me quote Rabindranath Tagore who epitomized Indian tradition: “None shall be turned away from the shore of this vast sea of humanity. That is India. Day and night, thy voice goes out from land to land, calling Hindus, Buddhists, Sikhs and Jains round thy throne and Parsees, Mussalmans and

Christians. Offerings are brought to thy shrine by the East and West to be woven in a garland of love. Thou bringest the hearts of all peoples into the harmony of one life, Thou Dispenser of India’s destiny. Victory, victory, victory to thee.” We have to protect minority institutions as we should value the benefits and joy of a shared culture. We must ensure there is unity in diversity. You cannot force everyone to do yoga. If

one part of society is made happy and another left unhappy, what are we achieving? We cannot discriminate. We have to be very careful of what we are doing. If a society is not at peace, there can be no progress. Our ethnic plurality and cultural identity is strong and should remain so. So you see a real danger. If you tamper with the secular framework, this country will break. Look at Nehru’s first cabinet. He ensured everyone was represented. Maulana Azad was born in Mecca and was India’s education minister. He did a lot to strengthen it. Nehru understood the importance of education and so, got people like Azad and Humayun Kabir as education ministers. Education is a very important portfolio. The IIMs and IITs were created to bring in excellence. We set up the National Judicial Academy in Bhopal to bring in excellence in the judiciary. Today, judges from all over the world come there. I set up numerous law colleges as it important to have excellent educational institutions to produce good lawyers and judges. There is a move to control the functioning of IIMs and IITs today. These institutions were always independ-

Photos: Anil Shakya

INDIA LEGAL July 15, 2015

THE NATION/ Emergency/Interview/HR Bhardwaj

“It is necessary that the cultural heritage of India is protected as it is vital for the country’s sustenance and growth of a secular democracy. Narendra Modi has a huge responsibility.” ent and should remain so as they grow best that way. Some professors are now speaking up against such a takeover. It is a well-established principle that IITs and IIMs should be controlled only by their peers and not anybody from outside. The role of NCERT is very vital. Can you change Indian culture by changing texts? People will ultimately resist such moves. Leaders would like to project themselves all the time. It is a normal human tendency. Modi keeps saying that he is from a humble background. If he now tries to make an attempt at greatness, it will be curbed by those within his party. Do you see any parallels between Indira and Modi? None. How can they be compared? Indira was from a family of freedom fighters and was active in the freedom movement. She gave her life for India.

July 15, 2015

She imposed the Emergency but also learnt from it as she was thrown out due to compulsory family planning, police excesses and misuse of powers at various levels. But after three years of Janata Party rule, she was voted back to power. When I was a lawyer, some 15 professors from Delhi University were arrested during Emergency. When it came up in court, Justice VD Mishra asked me what the grounds of arrest were as I was the government counsel. I said there were no grounds to arrest them. He immediately ordered their release. I informed Indira immediately that the police was misusing its powers in the name of Emergency. Soon after, Emergency was revoked. I never saw Indira as a dictator. She was a changed person after Emergency. What do you think Modi should do? Modi is under tremendous pressure to perform. Let him show what he can do

for the poor, downtrodden and weaker sections. He should do what he promised. If his ministers are not performing, he can change them. His problem is dealing with his own party. He should have powerful ministers in key positions. We need a powerful education minister with a vision of modern education. Economic progress is very important today. Rising aspirations have to be met and that is why I keep saying that education is crucial for the future of India.In its latest budget, the AAP has put money in education. That is great. Education will make everyone rise. Modi’s ministers have little power as it is concentrated in one person. The bureaucrats are very unhappy. Let us remember that bureaucracy is the steel-frame of our democracy and should be strengthened, not weakened. Ministers have powers under the constitution and concentration of power in one individual is not envisaged by our constitution. Ministers should not become sycophants. They should be allowed to speak their mind. Ultimately, the prime minister’s decision is final, but he must let them speak. If you create fear, you are no democrat. IL

THE NATION/ Emergency/Seshadri Chari

Will There Be a Fourth Time?

Psychological factors like autocratic behavior, supported by sycophancy are dangerous to democracy Anil Shakya

Anil Shakya

orty years after the declaration of the infamous Emergency, the debate is not whether circumstances in 1975 justified Emergency. The debate is centred on whether Emergency can become a reality once again. Why should anyone think that our democracy is weak enough to witness another assault on freedom of thought, expression, assembly, association and movement among others? Can the country witness another 1975-like situation warranting suspension of

fundamental rights? The question is not why or how Emergency was declared, but the psyche behind it. For millions of the younger generation, Emergency is part of their syllabus worth about two marks, not worth knowing during exams, much less remembering. The very idea that they can be prevented from moving around or that freedom to use the internet can be curtailed, sounds ridiculous to them. Ironically, this generation might actually be right, going by the innumerable failed attempts, in India and elsewhere to curb

NO MORE MUTE SPECTATORS People throned the Ram Lila Maidan in Delhi during the Anna Hazare Movement

INDIA LEGAL July 15, 2015

THE NATION/ Emergency/Seshadri Chari

The very idea that the younger generation can be prevented from moving around or that freedom to use the internet can be curtailed, sounds ridiculous. This is evident from innumerable failed attempts to curb internet and free flow of information.

July 15, 2015

the internet and free flow of information. So, the next time someone higher up in the echelons of power toys with the idea of imposing Emergency, he will have to consider ways and means to tackle the firewall of internet and the net-savvy generation.

uch has been written about the media during Emergency. They “crawled when asked to bend” said one victim of Indira Gandhi in 1975. Barring a handful of newspapers, a large number of them subjected themselves to strict censorship and all other dictates of the Emergency clique. Can anyone think of clipping the wings of the all-powerful media in this age of free 24X7 media and speed-breaking news? So like Gen Next, the media too is likely to be the biggest hurdle for anyone who toys with the idea of Emergency. The constitution of India, which allowed the proclamation of Emergency in 1975, has lost some of its draconian provisions. It will require nothing short of an armed rebellion to warrant another Emergency. Soon after the general elections that punished Indira Gandhi for her authoritarian rule, the Janata Party and subsequent dispensations got rid of some of the easy steps to Emergency and made it difficult for anyone to usurp democ-

racy. So the new constitution too is another safeguard against imposition of Emergency. The infamous quote of Emergency was “committed judiciary”. The meaning of committed judiciary in 1975 was committing oneself to political arm-twisting or, as an alternative, experience the fate of Justice JML Sinha (who pronounced the Allahabad verdict unseating Indira Gandhi). In these days of judicial activism, judiciary seems to be actually enjoying greater freedom, sting and power. So who would be insane enough to challenge the judiciary and stir a hornet’s nest of millions of judiciary’s foot soldiers. Again, the case for another Emergency stands dismissed by the new and revised edition of the judiciary. Indira Gandhi’s Emergency was fought tooth-and-nail by the Rashtriya Swayamsevak Sangh (RSS) and a few other organizations. Soon after press censorship and detention of political leadership, the Lok Sangharsha Samiti was formed, dominated by erstwhile Bharatiya Jan Sangh and RSS

veterans along with socialist and Left leaders. The mass satyagraha against Emergency witnessed millions protesting in groups all over the country. The underground movement became one of the strongest protest mechanisms and a nightmare for those endowed with powers of repression. And for all that, 1975 was not the year of the civil disobedient movement. The term “civil society” was not very popular and meant nothing for those responsible to report from Ramlila Maidan.

ook at 2013-14 and the Anna Hazare movement and its aftermath. We have more RTI activists than political parties and every street corner has half-a-dozen whistle-blowers. So strong is civil society activism now that even the judiciary has to think twice before passing a stricture. Adding to their strength is new-found social media which can carry news and views faster than the thought emanating from one’s mind. So one has to think of nothing short of

a Tiananmen Square to wade through these civil society protestors to impose Emergency. Yet, the very mention of the notorious Emergency evokes memories of the past and it appears that its threat is very real. What, after all, was Emergency? The judiciary, political parties and the constitution could not stand up against Indira Gandhi. Emergency was the result of at least two significant characteristics that dominated the socio-political scene at the time it was promulgated. One was the greed for power and the firm belief of the political leadership about its invincibility. Indira Gandhi refused to quit and thought she was invincible. Another trait was the swarming pool of her sycophants who were ready to sing and dance to DK Baruah’s tune of “Indira is India and India is Indira”. The first Emergency was in 1962, the second in 1971 and the third in 1975, all under different circumstances. If we are collectively sure and convinced that the political leadership is divorced from greed for power and sycophancy is a thing of past, rest assured, there can be no fourth time. IL

SHIFTING POLITICAL DYNAMICS (L-R) Youth, empowered by technology; The RSS, which opposed the Emergency; Indira Gandhi, declaring Emergency

—The writer is former editor of the Organiser, was an underground activist and was jailed during Emergency INDIA LEGAL July 15, 2015

INTERVIEW/ Indira Jaising

“There Has Been Proven Corruption in the Judiciary” I

NDIRA JAISING needs no introduction to anyone in the legal profession. In her trail-blazing career, she has made a mark as one who has been tirelessly fighting against the marginalization of the poor and for women’s rights. She was the first woman to be designated as a senior advocate by the Bombay High Court in 1986 and was again the first woman to be appointed as the additional solicitor general of India. She was awarded a fellowship at the Institute of Advanced Legal Studies, London, and has been a visiting scholar at Columbia University, New York. She was awarded the Padma Shri in 2005 for her contribution to public affairs. Among her landmark cases are those dealing with the rights of pavement-dwellers, abandonment of victims of the Bhopal gas leak, the right of women to inherit property and the right of a mother to be the guardian of her child. In the early eighties, she and her husband, Anand Grover, founded the Lawyers Collective, an NGO devoted to social and gender issues. Jaising speaks to India Legal managing editor RAMESH MENON on a wide range of issues. Excerpts: 40

July 15, 2015

Did you always want to be a lawyer? I always wanted to do something that has a social impact. For me, law was an instrument that could bring in social change. After graduation, I opted for law.

What is the ideal system of justice that you would want to see? It should be swift, equal and not expensive. Most importantly, judges should understand their role as change makers. They should not entrench the status quo which is loaded in favor of the privileged classes, corporates and senior lawyers who represent them. There are a lot of vested interests having a web of connections in the legal profession as well as in the social, economic and political sphere. What is the best way to appoint competent judges? Seniority may not be the best idea. Should it be quality or regional representation as there a growing demand that all the regions should be represented? Regional representation is important. So is representation of marginalized communities as well as women. But it cannot be at the cost of competence. The big question is how to judge competence. Before judges are appointed, their earlier judgments should be evaluated, along with their knowledge of jurisprudence. After all, they are being appointed to a constitutional

LAWYER FOR ALL CAUSES Indira Jaising has stood for many disadvantaged groups seeking justice Photos: Anil Shakya

INDIA LEGAL July 15, 2015

INTERVIEW/ Indira Jaising

court and not a munsif ’s court. There has to be a demonstrable commitment to constitutional values. If we are to appoint candidates from the bar, we need to look at their track record, cases they have argued and their commitment to the constitution. If all they did was represent the corporate sector, how can they be competent to become judges? Competent lawyers need not be competent judges.

Why is people’s faith in the judicial system weakening? It is mainly because people see nepotism in the appointment of judges. Friends and relatives of judges are appointed and there is nepotism in designating senior lawyers. There too, cronies of judges are designated, not those who deserve to be designated on

merit. Designation carries with it major benefits in terms of fees and the respect they get from judges.

The judiciary has been rocked by allegations of corruption and failure to deliver justice. There has been proven corruption in the judiciary. In 1990, Justice V Ramaswamy of the Supreme Court was found to have spent huge amounts on his luxuries out of public funds. After a fact-finding report held him guilty of misconduct, there was a motion for his impeachment in parliament but it failed during the vote. Regionalism also works to prevent accountability. Lawyers and judges belonging to a community can get together to stop action against a judge belonging to their community. Then,

“NJAC could prevent those judges who have given judgments against the illegal acts of the government from coming in. The executive just needs a veto to reject a judge.”

July 15, 2015

we had Justice Soumitra Sen from Calcutta High Court who was to be impeached but he resigned before the vote. Justice PD Dinakaran was accused of land scams and he also resigned after a motion for his removal was admitted in parliament. The impeachment motion of Justice SK Gangele of Madhya Pradesh High Court, who has been accused of sexually harassing a woman judge, has been admitted in the Rajya Sabha. However, it is a shame that he still sits as a judge. This shows the utter inability of the chief justice of India and of the system to take action against sitting judges. In this case, the system has failed one of its own members and a woman.

What are the judicial reforms that you would like to see? One is about the appointment of judges. I do not agree with the selection method of the National Judicial Appointments Commission (NJAC) that has been put in place by the NDA government. It could also prevent competent judges or those who have

was an abdication of constitutional responsibility. I must say, so far as the beef ban is concerned, the high court did say no corrosive action can be taken and this is a virtual stay of the Act. The issue of net neutrality has not yet reached the court but I do fear that given the fact that there are very heavy corporate interests at stake, the scope for manipulation is great. We need to wait and see what happens. The issue you are pointing to shows corruption of the constitution from within.

given judgments against the illegal acts of the government from coming in. The executive just needs a veto to reject a judge and he or she will not be appointed. It is a completely unacceptable method as it can affect the independence of the judiciary. On the other hand, a reformed and transparent collegium would be more acceptable. The collegium should invite nominations and have a search committee of judges, academics and lawyers to give inputs on the nominee. We need a fundamental change, not cosmetic change. We should not let the executive dominate the judiciary.

The executive is increasingly in conflict with the judiciary and is trying to exert its influence and power. I agree. The evidence comes in the statement of the prime minister at the Conference of Chief Justices, that five star activists are driving the courts! There is also evidence of the manipulation of the CBI. The failure of the CBI to appeal against the discharge of BJP president Amit Shah shows that the CBI is not only a caged parrot but a parrot without wings.

One frightening problem is the increasing number of pending cases. Justice delayed is justice denied. Many of the complainants die waiting for their case to be heard. You are absolutely right. I do not see any serious attempt to deal with the issue. There is a lot of scope to improve the performance level of existing judges. Many judges leave by 12 noon. If they are on leave on a given day, cases are adjourned for six months, instead of transferring them to another judge who is present on that day. Only strict monitoring of performance will get rid of pendency. The current judges can do much more but there is lethargy in the judiciary. The attitude that prevails is “chalta hai”. There is no feeling

What do you think of the Land Acquisition Bill?

“Cronies of judges are designated as senior lawyers, not those who deserve to be designated on merit.” of enthusiasm or desire to do justice. You get the impression that they are like babus pushing files.

What can be done to ensure that an ordinary case concludes within a stipulated time frame? We need to have amendments to the Civil Procedure Code. Vested interests work to create a delay as there are no penalties for delay. We need to create a system of accountability for lawyers who bring in frivolous applications. The intention is to delay, not deliver. Abuse of court process must be punished, not treated as part of the game, as it is now. Between Section 377, the beef ban and net neutrality, do you think the legal system in India is progressing or regressing? The judgment of the Supreme Court on Section 377 of the Indian Penal Code

I believe the consent of the landowner is critical to the validity of the Bill. That apart, the manner in which parliament has been bypassed is yet another example of corruption of the constitution from within, and I hope the courts will strike down the ordinance.

How does the proposed Land Acquisition Act compare to the law of other developed nations? Does it adequately protect the rights of the land holder? It does not. We can’t make comparisons. Each county must find a solution based on its own requirements. We are a country of agriculturalists who have small land holdings. Land is their only source of livelihood. That apart, there is a major issue of food security here; multi-crop land can also be acquired. The essence of food security is to guarantee the right to hold cultivable land and provide incentives for cultivation. Human right violations are increasing in the country. Yes, they are but what is more frightening is the attack on champions of human rights. Human right violations may perhaps exist in all political regimes, but we have not seen such a vicious attack on human rights defenders in the past. Any form of dissent is not being tolerated. IL INDIA LEGAL July 15, 2015

ECONOMY/ Banks

Where’s the Money, Honey? Do banks have enough capital to lend in case India witnesses an economic recovery later this year? The answer is a clear no as minimum capital requirements are set to rise and mid-cap public sector banks do not have so much capital By Shantanu Guha Ray

FALSE HOPE? (People queue up at a bank to open accounts under the Pradhan Mantri Jan Dhan Yojana, in Hyderabad

July 15, 2015

UREAUCRATS from the finance, commerce and agriculture ministries got the shock of their lives at a recent seminar. Here, seasoned economist and former chief economic advisor Arvind Virmani said he had a feeling that the recent call of the RBI to cut rates would get more strident. As an advisor of the bank, Virmani had insider information and all believed him when he said there was room of 1.25 percentage points

more for a policy rate cut. And then came the bombshell. He asked: “For the moment, can we forget the high level of lending rates. Do banks have enough capital to lend in case India witnesses an economic recovery later this year?” No answers were forthcoming. DIRE SITUATION? Even if someone had replied from the audience, the answer would have been negative,

BODY BLOW (Above and left) Natural calamities affecting agriculture may hurt the asset quality of India’s farm credit Photos: UNI

ostensibly because the minimum total capital requirements in India are set to rise this financial. As per RBI’s timeline to push Basel III norms (these relate to risk management in banking), which Indian banks hardly follow, banks operating in India must make provisions for a capital conservation buffer of 0.625 percent of risk-weighted assets by the end of the financial. This, in short, means— as per calculations done by RBI—that the minimum capital requirement would increase to 9.625 percent this fiscal and increase to 10.25 percent next year. Therein lies the biggest problem for India. “In India, big banks like the State Bank of India, Bank of Baroda and Punjab National Bank are sitting comfortably with good capital stocks. But the situation is not so rosy for mid-cap public sector banks,” says Sudipto Mundle, emeritus professor at National Institute of Public Finance and Policy. He

added that mid-cap banks account for around one-third of bank credit. “Where will the cash come from?” he asked. It is estimated that the credit gap for the Micro, Small and Medium Enterprises (MSME) sector will increase from `10,15,614 crore at the beginning of the 12th Plan (April 2012) to `11,37,151 crore at the end of the 12th Plan (March 2017). Reasons for low credit penetration among SMEs range from insufficient credit information on them to their low market credibility. Now if SMEs do not get cash, does that— in reality—mean India is heading for a credit starvation phase by the end of this year? Probably yes.

“In India, big banks like the State Bank of India, Bank of Baroda and Punjab National Bank are sitting comfortably with good capital stocks. The situation is not so rosy for mid-cap public sector banks.” — Sudipto Mundle, emeritus professor, National Institute of Public Finance and Policy

BANKS IN TROUBLE As per recent calculations from India Ratings and Research, mid-level Indian banks will need a whopping `1.6 trillion in capital by INDIA LEGAL July 15, 2015

ECONOMY/ Banks

“The pressure is high on smaller banks, they will have to find a way out of this crisis because small and medium-sized enterprisess are crucial to India’s growth story.”

2019 to match Basel III requirements. “But who will give the capital? For the moment, there seems to be little chance. Worse, with high credit costs and low loan growth, contributions from retained profits are abysmally low,” says Mundle. The finance ministry cannot help, it is amply clear, argues Professor Makkhan Lal, a distinguished fellow at Vivekananda International Foundation, a Delhi-based thinktank. He has statistics to support his argument. For the record, only `7,940 crore has been earmarked for bank re-capitalization this fiscal. As against this, `7,000 crore was infused, lower than the budget target of `11,200 crore. The policy for bank recapitalization is whimsical. Last year, it was based on performance and this year, it will be based on individual needs of lenders. Lal says the bulk of PSU banks are trading below book values, hence raising money from capital markets will be a tough proposition. Worse, the government will not cut its stakes. “What will happen is very clear, credit growth will be hurt,” says Lal. In the absence of government capital infusion, India Ratings’ projections claim average annual bank credit growth over the next four years could plummet as low as 6.35 percent. Even if the RBI and finance ministry pump in half the required capital, credit

growth would be tepid at 10.8 percent. Virmani says India’s better-capitalized private banks will not take up the slack, unwilling to bear the burden. The ones affected would be PSU banks which lend across the spectrum—from farmers to textile companies to SMEs—as compared to private lenders who tend to focus more on consumer finance and corporate lending. “Eventually, small and marginal sectors will face the specter of credit starvation in India if bank capital isn’t forthcoming,” warns Virmani. OMINOUS SIGNALS What is distressing is that there are no shortcuts to resolve the crisis. A deficient monsoon, unseasonal rains and hailstorms destroyed crops last year and now a new monsoon forecast predicts a below-normal monsoon in 2015, putting the Indian farm sector in a real fix. Worse, this has triggered increased farmer suicides—3,000 so far. India Ratings states that the crop damage caused by the untimely hail and rain in March 2015 may hurt the asset quality of India’s farm credit. This is a body-blow to both farmers and the banks. Regionally concentrated banks with a large rural presence in the affected regions are at high risk, claims India Ratings. The banks have pushed their agriculture

— Kshtrapati Shivaji, chairman, Small Industries Development Bank of India

WHERE IS THE MONEY, HONEY? It is highly possible that small and medium enterprises may not get loans from the banks in future Anil Shakya

July 15, 2015

BLEAK FUTURE (Left) Do SMEs have a magic wand to survive on little or no funds?

loans lately, prompted by the ruling NDA’s decision to promote farm loans to help farmers. The lower credit demand in other sectors could also be considered a reason for aggressive farm lending. “But unseasonal rains slowed agriculture credit growth. Loans grew 16 percent YoY (Year on Year) in FY15 due to government’s promotion of agricultural loans and lower credit demand in other sectors,” says Mundle. As per government records, bank credit growth for FY15 (12.6 percent YoY growth for total credit) was driven by the farm sector that contributed 25 percent to the incremental growth in the system in 2014-15. Finance minister Arun Jaitley targeted 6.3 percent YoY growth in banks’ credit to the agriculture sector, but actual growth may slow down as banks continue to grapple with the routine deterioration in farm loan asset quality. A final picture should emerge by June-end. UNEASY SHIFT Lal says that if agriculture lending slows down, banks in India could shift their loanable funds to alternatives, such as the Rural Infrastructure Development Fund to meet priority sector requirements. “But it is easier said than done because the switch from the higher yielding agricultural loans to the

development fund will invariably impact profitability even further,” says Lal. As per government estimates, systemwide agricultural non-performing assets (NPA) as a percentage of total agricultural advances will increase to 16.9 percent in 2015 from 13 percent in 2014 due to unseasonal rains. These heavily exposed individual banks may also see their agriculture NPA levels increasing more than double and the system-wide impact will be a 40 basis point increase in gross NPA ratios on total advances. Mundle says the profitability impact of these stressed agricultural loans indicates a higher asset depletion. Kshtrapati Shivaji, chairman, Small Industries Development Bank of India also feels Indian banks are not in a happy condition. He says they have high-stressed assets that amounted to 10.6 percent of total credit at end-December 2014 and are expected to increase to 13 percent by end-March 2016. And if rains are untimely, this could cross 14 percent. “The pressure is high on smaller banks, they will have to find a way out of this crisis because SMEs are crucial to India’s growth story,” adds Shivaji. Someone needs to find a magic wand to end the bad times. The toss is between Rajan and Jaitley. IL

As per the calculations done by the Reserve Bank of India, the minimum capital requirement in banks would increase to 9.625 percent this fiscal and further increase to 10.25 percent next year.

INDIA LEGAL July 15, 2015

DEFENSE/ One Rank One Pension/Letter

Soldier Writes to Chief Justice of India In a missive to the CJI on June 17, 2015, Col (Retd) KS Dhami, a former paratrooper, mountaineer and activist for ex-servicemen, takes the government to task over OROP. We reproduce that letter “The day the soldier has to demand his dues will be a sad day for Magadha. From then onward, you will lose all moral sanction to be King.” —Chanakya’s advise to King Chandragupta Maurya

LEGITIMATE DEMAND (L-R) The government can’t afford to sit on the soliders’ demand for OROP

1. The delay in implementation of the promised “One Rank, One Pension” (OROP) to ex-servicemen is a “Breach of Trust” committed by the present government. The main ground for OROP is early retirement when other employment is difficult to get and financial demand increases. The Supreme Court ordered its implementation six years ago; the parliament has approved it, the president supports it, yet no action. Whatever is the outcome, many veterans, badly let down, will never be able to forget and forgive this “Breach of Trust” and even more, the unbecoming manner in which the government has gone about it. The extent of denial of armed forces rights is best brought out in an article: The Soldier’s Right by Nalin Mehta in The Times of India dated June 16, 2015. 2. A country is respected if it is economically and militarily strong. Economically, if you cannot give clean water, air and basic food (to half of the country’s population) you have little hope of becoming a superpower; and high growth has little meaning. On military’s importance, it is worth the prime min-

IL UNI

July 15, 2015

PIB

UNI

ister and the finance minister heed the great politician, economist and military strategist Chanakya’s advice given to his King, quoted on the facing page. And to quote ancient (500 BC) Chinese military strategist Sun Tzu in the Art of War: “Treat your men as you would your own beloved sons. And they will follow you into the deepest valley.” Let us hope that the Hon’ble prime minister, Hon’ble finance minister and service chiefs realize this and the importance of maintaining high morale of the armed forces. Sun Tzu’s book is a prized possession of top corporate leaders—kept on their table—who use Sun Tzu’s tactics and strategies to achieve business aims and to tackle rivals.

PLAINTIVE CRY (L-R) Ex-servicemen have been agitating against the delay in implementing OROP, but to no avail

3. There are apprehensions that the fall-out of the delay in the implementation of the OROP and the manner that governments have gone about it in the past and now could disturb forces morale. For example, the big disparity in the Special Forces allowance of the army and the paramilitary forces that has come to light (unbelievable, almost 10-fold difference: army `800-1,200 per month, paramilitary forces `7,200-12,000 per month). Not to mention that finally the tasks land up in the armed forces’ lap. Such differences are difficult for unit commanders to explain to their young officers and men under their command. How much can “man-officer bond” and “regimental esprit de corps, built over the years, endure? Politicians and bureaucrats, in the interest of the country, need to understand this. In the armed forces, esprit de corps is critical—the single most winning factor. It is this spirit that saw young regimental officers lead their men to turn the tide in the Kargil conflict—their spirit glorified in the saying: “Man Dies but the Regiment Lives”. 4. At this stage, the OROP needs to become a movement to let the people know the “Breach of Trust” by the present government, not only on OROP, but also on other unfilled promises concerning the common people—start with rallies and build up to the coming election in Bihar as suggested by Lt Gen Vijay Oberoi (Retd), former Vice-chief of Army Staff. Veterans have also to speak up for undoing the injustice in the past and for those serving. It is also time for the service chiefs and senior commanders to take a call on the situation, as brought out above, faced by unit commanding officers, who are already stressed running their units with depleted officer strengths. (Army is short of over 10,000 officers). INDIA LEGAL July 15, 2015

SPOTLIGHT/ Plagiarism

The plague of No one bats an eye over plagiarism. After all, “everybody does it”. But the issue here is of integrity, of being honest. Sadly, few think one should get one’s knickers in a twist over this issue By Bikram Vohra If you borrow from one person, you are guilty of plagiarism. If you borrow from many, it is research.

HE said she was from Poland. I don’t know anyone in Poland but it was one of those slow news days when the senior well-paid assistant editors do “standard edits” for the Opinion Page. These are rehashed exercises in self-plagiarised pap. Like wildlife, pollution, global warming, traffic safety, corruption, the weight of children’s satchels and other such riveting stuff. The same drivel pumped through another pipe. Anyway, I digress. Courtesy the slow news day, I took the call. The lady from Warsaw was miffed. Actually, more than miffed, she was righteously indignant and not because she was paying for the call. Your paper, she said in a voice quivering with outrage, carried my story “verd to verd” by another person. It is not an accusation one takes lightly and so I order an inquiry. Sure enough, the lady staffer in question had stolen every single word from another article written three years earlier. I order a check on her and we discover the last 17 byline pieces are stolen in most eclectic a fashion. From Warsaw to Washington. A gentle request for a resignation is met with shock and disbelief, followed by rising pique and indignation. She gives me a defence worthy of the best lawyer: everyone does it. WHAT’S THE BIG DEAL? If I was asked to offer odds on how many of journalists plagiarize copy, I’d cheerfully give 10 to 1 on it being over 60 percent of anyone’s editorial staff. The curious part is that most of them do not think of it as wrong. Whenever I have been confronted with a case, there has been this “so what’s the big deal, everyone does it” defence, as if it was mere bagatelle and

July 15, 2015

Amitava Sen

plagiarism the search engines of the Net were some sort of cosmic every man’s land from where you could steal with impunity. Seeing as how we still work in an environment where press releases are dutifully reproduced in identical format with different bylines in different papers and seen as perfectly legitimate, it is difficult to explain to such a mind how wrong it is. In the case of Fareed Zakaria’s robbery from The New Yorker for his piece on gun control, the chances are that when you work in the rare stratosphere of raw fourth estate power, you tend to harness interns to do your scut work or what us old salts call research. And you do it on trust. If you are the sort who dines with Hillary Clinton and chews the fat with David Cameron, you can’t be that stupid as to swipe stuff from a top drawer magazine which many of your readers access. Anonymity is the key to safe plagiarism. Then you get away with it. And two years later, a slew of discoveries indict you for having done more of the same. Yet, no one shows tangible evidence. The ripple effect has been on since August and is now heating up again. A soaring career shot down like a Spitfire. More recently, we have the Chetan Bhagat issue where his new book, Half-Girlfriend, is allegedly ripped off a Dr Birbal Jha play called Englishia Boli. It has been reported that the author is being offered a job by a film-maker. FOURTH ESTATE SLOTH The odd thing is that accusations of plagiarism are taken lightly by the media, a passing story, perhaps because so many of them do just that. It is an acidic commentary on fourth estate sloth that no one has read both books and made the comparison. Everyone is quoting everyone else but there is no one who has said, okay, read both, it’s true, it is a lie, there is so much common, there is a world of difference. Go figure.

Plagiarism cannot be denied. If 75 words are in the same damn order, the odds are either lots of monkeys or you were cogging. Until intellectual property and copyright protection came into being in their flimsy fashion, creative juices were energized by the Black Book, Google, Clipart, whatever you could grab and rework from this wonderful machine called the computer without any concern for consequences. They weren’t any. That attitude has not gone away. The laws on intellectual property are nebulous at best and there are no genuine penalties imposed. It is still a bit of a lark. We have 83odd legislative pieces of paper on official record offering fragile protection. India allows books and movies and songs to be pirated even though there are technical fiats against it. The tolerance level is so high that it makes a mockery of guarding your rights to your works. Ergo, Dr Jha will get no joy. By some curious chemistry and the conspiracy of guilt in the media, he will become a nuisance, period. Legal aid is also dubious. You could age like good whisky before your case came up in the court, so every accusation is a one week soar-and-sink sensation. No one truly cares to see it as a crime. It is a sobering thought that India comes last in top 25 economies of the world for protecting logos, copyrights, slogans, articles, books and is way behind the curve on Internet manipulation. It is just not seen as cheating and our knock-off industry thrives. On a larger frame, the bloggers of the world are the keepers at the gate. Their ability to suss out a suspect story that resonates and leak it into the ether and the extent of their bonding is currently the only real deterrent to keeping media honest. They are our best bet. But even they pay the price since there is this general belief that bloggers have no rights, are not real people and cannot take action. Since some of

Aruna

India allows books, movies and songs to be pirated even though there are technical fiats against it. The tolerance level is so high that it makes a mockery of guarding your works.

INDIA LEGAL July 15, 2015

SPOTLIGHT/ Plagiarism

COPY CATS? (Extreme left) Fareed Zakaria was briefly suspended by CNN and The Washington Post after he admitted to have lifted portions from a New York Times article on gun control (Extreme right) Chetan Bhagat’s best selling book, Half-Girlfriend, is allegedly a rip-off of Englishia Boli, a play written by Dr Birbal Jha (center)

them are brilliant writers, swiping their material is often irresistible and many of them do not have the wherewithal to fight legal wars. One well-known journalist wrote an indepth piece on prostitution in India, tracing it back a hundred years. A few of the paragraphs had an almost lyrical cadence to them. The effort was widely praised. One elderly gentleman in a village in Andhra Pradesh had a copy of a book written in the 19th century about a girl who was forced into the profession. It was lyrical. Suffice it to say he was the only man with that book who came forward with the original version. What were the odds that this issue of the magazine would reach him? Word-to-word copied into the write-up. TOO REMOTE Assuming that dozens of writers hack away at the search engine and cut and paste lines and paras with connecting words, how do so many get away? Largely because they are so isolated in our part of the world that the connect from the original to them is just too remote and then they learn to camouflage. Here is a three-point game plan that most of them use. They steal from the 20th page onwards of the site. Like they won’t pick up the first 10 top pages, but burrow deep into the background. Go for the 400th article on gun control and Fareed would still be dining at the White House. They steal from unknowns or, as I said, bloggers who really could not be bothered to pursue legal action. They change key words through online synonyms. This is known as reworking the copy. One well-known paper okayed a four-page

July 15, 2015

layout of a fashion exhibition with a Danny Boyle version of A Midsummer Night’s Dream. On 110 gms art paper center-fold. On impulse, the editor just sieved it on the Net and discovered the photographer lived in the Far East and this spread that was going to print was his website portfolio. Like with all crimes, the criminals leave enough evidence on the scene like replicating the thought process or underscoring their assault on originality by leaving the sequence dramatically the same. Some phrases are missed out as they sanitize and even these can be traced by loading them into a search mode. The cleverer ones just put it in quotes and hope to cover their required length that much sooner. “Ctrl C and Ctrl V. Done.” Is there a way to combat this? Yes, to an extent, the matter can be checked out by putting part of it through a search. I once plagiarized myself from the Net and was updating a piece… when I put two paras into Google, the original came up. A good section head needs to do that even though no one appreciates how time consuming it is and how it bruises morale, especially for the ones who are honest. You point a flinty finger every day, who wants to work for you? Catch-22 time. It has to be said when you have been in this business long enough, you can sense something is out of kilter. That staffer could not possibly have written this stuff, whirr whirr, there goes the warning antenna. Just don’t overlook it. If we do not drum the cheats out and let them get away with it, they will ruin the profession…or what is left of it. IL

NATIONAL BRIEFS

Kerala to check food additives THE FOOD SAFETY WING under the Department of Health in Kerala will launch an operation named “Ruchi” to regulate additives in food products, Health Minister of Kerala VS Sivakumar said. Misleading advertisements related to packaged foods too will be banned through legislative means. He was speaking at a workshop on food safety, organized by the food safety wing. He said the potential of social media, online facilities, and WhatsApp messaging service would be used to promote food safety and for a grievances redressal mechanism.

Complaint against Irani METROPOLITAN MAGISTRATE of Delhi, Akash Jain, has taken cognizance of the complaint filed by freelance writer Ahmer Khan against Smriti Irani. He said that Irani, in her affidavits to the Election Commission while filing her nomination for the Lok Sabha elections, had given ambiguous information regarding her educational qualification. Khan, in his complaint said that it was not a crime to be illiterate but providing misleading information was not morally correct. Senior advocate KK Manan, appearing for Khan, told the court that Irani, in her affidavit for the 2004 Lok Sabha polls, had mentioned that she completed her BA degree from Delhi University in 1996, but in the affidavits filed in the 2011 and 2014 elections, she stated her highest qualification as BCom part I from DU. Any false declaration in Form 26 for a poll affidavit is an offense under Section 125A of the Representation of people Act, with imprisonment up to six months. The metropolitan magistrate has set the matter for hearing on July 28.

Big B in legal mess

NIA tries to slow down case ROHINI SALIAN, the special public prosecutor who appeared for the National Investigating Agency in the 2008 Malegaon blast case, has said that the agency told her to go easy on the case soon after the new government took over at the center. This was the first case when Anti Terror Squad had chargesheeted Hindu extremists—Shrikant Purohit and Sadhavi Pragnya Singh Thakur. Criticizing the slow progress in the investigation of the case, Salian said that since the agency had taken charge from Maharashtra ATS in 2011, not a single paper had been put forth in the court.

A LAWSUIT has been filed against Amitabh Bachchan and his son Abhishek for allegedly insulting the national flag. Chetan Dhiman, in his complaint against the two at the judicial magistrate’s court in Ghaziabad, alleged that they had wrapped the national flag around themselves in an insulting manner during the World Cup IndiaPakistan match. According to Chetan’s lawyer, Sanjeev Sharma, the Bachchans were sporting the national flag in a derogatory manner. The case was filed under The Prevention of Insults to National Honour Act, 1971, and the Flag Code of India 2002.

Swamy challenges IPC in apex court

CHALLENGING various provisions of the Indian Penal Code dealing with hate speech in the Supreme Court, BJP leader Subramanian Swamy said that these laws were antithetical to freedom of speech enshrined in the constitution. Swamy challenged the constitutional validity of IPC’s Sections 153(a) and 295(a), arguing that they were vaguely worded and liable to be misused, like Section 66A of the Information Technology Act, 2000, which was recently annulled by the apex court. He said there had to be a distinction between the incitement or advocacy and the expression of opinion.

INDIA LEGAL July 15, 2015

CRIME/ Cyber Security

Cyber Sleuths on the Prowl With the increase in internet and mobile-related crimes, a group called “Friends of Cyber Cell” is helping Gujarat’s CID track down these spooks By Kaushik Joshi

he burgeoning market for internet-enabled smart phones and a plethora of mobile apps has led to new-age cyber crimes. And cyber criminals are changing their tactics almost every day in an attempt to avoid detection. Keeping track of them has, therefore, become an uphill task. NOVEL IDEA Alarmed by the rise of cyber crimes in the past five years in Gujarat, the cyber cell of the CID here has hit upon a novel idea. It has started a group called Friends of Cyber Cell, where cyber experts are invited from all over the state to join in and crack mind-boggling cyber crimes. Some 92 individuals have volunteered to work for the cyber cell, 68 of them being

Cyber crimes in Gujarat Year 2010 2011 2012

July 15, 2015

Registered 23 52 86

Cracked 17 39 59

“I knew quite a bit about cyber forensics, but it was after joining this cell that I came to know the finer details of cyber crimes.”

“Cyber bullying can prove more devastating than traditional bullying as the victim can’t escape it. ”

— Jatan Raval, MTech student from Ahmedabad. This includes students of Gujarat Forensic Science University who are doing their MTech in cyber security. Says Jatan Raval, 22, an MTech student: “I knew quite a few things about cyber forensics, but it was after joining the cyber cell that I came to know the finer details of cyber crimes.” Another student, Zaran Shaikh, says: “It’s wonderful to be with the cyber cell while still a student. It takes me to the real world of cyber crime, where I can get down to the nitty-gritty of crimes to solve them.” SPOOKY WORLD With the wide penetration of the internet, spooks have now entered the cosy confines of homes and offices. The subculture behind hacking is known as computer underground. Cyber crimes are committed against individuals or a group of individuals, with the intention to harm the reputation of the victim,

— Manjeeta Vanzara, assistant police commissioner, Ahmedabad

“Cyber criminals use psychological methods to convince the victims to disclose secrets such as passwords.” — Shruti Mehta, DSP, Cyber Cell

cause physical or mental harm or financial loss using modern telecommunication networks such as internet and mobile phones. Shruti Mehta, deputy superintendent of police, CID, Cyber Cell, Gujarat, says: “Cyber criminals use psychological methods to convince the victims to disclose secrets such as passwords, credit card numbers, etc, by impersonating a bank or a customer. In many cases, the victims don’t have a prima facie evidence to lodge police complaints, but they can do so in any police station in the state. In complex cases, they seek our help and we try to unravel the puzzle.” The cyber cell is also raising awareness about cyber crimes through radio, television and exhibitions. Cyber criminals create computer viruses, which are programs which, when opened, copy themselves into the hard drives of other computers without the user’s consent. The virus may steal INDIA LEGAL July 15, 2015

CRIME/ Cyber Security

Tips for netizens Don't

give your bank password to anyone your debit/credit card PIN numbers a closely guarded secret Use a trusted anti-virus against malware (virus, trojan, etc) Never trust fake e-mails from banks Bank employees never ask for account password or debit/ credit PIN through e-mail or phone If there is a death in the family, meet the bank official immediately to close the account of the deceased, as cyber criminals could gather personal details from the death notice and make use of it. Keep

Tragic end Teenager Rehtaeh Parsons from Canada committed suicide in 2013 after her nude photo went viral over social media. She had been gangraped and photographed. She was then bullied by many, who sent her text messages asking her to have sex with them.

disk space, access personal information, ruin data or send out information to other computer users. In some cases, these viruses can be removed, while in some cases, they can't. Though falling within the ambit of cyber crime, these activities and the perpetrators are jurisdictionless and borderless, making it difficult to deal with them. Many cases go unreported. Yet, the cyber cell of Gujarat is trying its best to crack the cases. RM Vasaiya, a police sub-inspector with the cell, told India Legal that of the 315 cases registered with it in 2014, as many as 126 had been cracked.

SINISTER CRIMES But there are many more crimes in this sinister world: cyber fraud (manipulating data), identity theft (pretending to be someone you are not), phishing (to gather private, personal information about individuals) and salami slicing (stealing tiny amounts of money from each transaction). There is also cyber bullying, in which social networks are used to post rumors or gossip about an individual, thereby defaming and humiliating him. Cyber bullying is increasingly infecting teenagers, leading to suicides too. Using internet and cell phones, cyber bullies try to intimidate, control, manipulate, falsely discredit and humiliate the victim. The bully could be a person whom the victim knows or could be an online stranger. It is feared that increasing use of mobile

July 15, 2015

applications and smart phones with cameras and internet access lends itself to specific types of cyber bullying that is not found in other platforms. In many cases, cyber bullies resort to sexually harass their victims. SEVERE HARASSMENT Says Manjeeta Vanzara, assistant police commissioner, Ahmedabad: “Cyber bullying can prove more devastating than traditional bullying as the victim can’t escape it. A person can get scared, frustrated and depressed with increasing low self-esteem and sometimes, even suicidal tendencies.” Vanzara feels that social media, the information explosion and erosion of societal values are upshots of these crimes. “We find that sexual harassment as a form of cyber bullying is common in the video game culture, where slurs are directed towards women and there is sex-role stereotyping.” Where do we go from here? Taral Bhatt, a police sub-inspector with the cyber cell, paints a gloomy picture. He says: “Future wars need not be fought with AK-47s and the like. All over the world, railways, air-traffic, refineries, electricity grids and atomic power stations are computerized. So, an evil mind can impact sensors and cause large-scale destruction of life and property." A whole new gamut of threats has opened up. As new trends in cyber crime emerge, we need not just policing but comprehensive legislation to address such crimes. IL

SOCIETY/ Caste/ Dalit Brothers

Caste, Alive and Kicking Decades after Independence, caste issues still rear up. This time, the targets were two impoverished brothers who had cleared the IIT entrance exam and were stoned by upper castes

ALITS have often been maltreated and discriminated against in India. And despite political efforts to improve their status, the mindset of people towards them has changed little. This deep-seated feeling of casteism was recently seen when some upper caste villagers pelted stones at the house of two Dalit brothers, Raju (18) and Brijesh Saroj (19), who had cleared the prestigious IIT entrance exam. Both are the sons of daily wage worker, Dharamraj. The incident took place when they were coming back from UP chief minister’s felicitation program in Lucknow. Talking to India Legal’s sister TV channel APN, Ravi said there were half-a-dozen pelters but he could not recognize them as it was dark. They immediately informed District Magistrate Amit Tripathi. Anticipating the seriousness of the situation, Tripathi rushed SDM, Lalganj, YP Singh and some policemen to guard the family. HARASSED, ABUSED According to the boys, this is not the first time that they have faced such an act of vengeance. Earlier too, there have been instances where upper caste villagers discouraged them from studying, saying that Dalits had no future. Despite their humble background, they topped school examinations and received scholarships. They have been harassed and abused for these achievements. At the age of 10, Brajesh was thrashed by his school teacher for daring to question his Sanskrit translation. Even their sewage line was cut off a few weeks ago, according to media reports. Seeing the family’s weak economical con-

dition (they live in two tiny rooms), many public figures, politicians and NGOs have come forward to help them. Their achievement was lauded by Congress Vice-President Rahul Gandhi and Aamir Khan, while HRD minister Smriti Irani said their IIT admission fees would be waived. UP Chief Minister Akhilesh Yadav too has given the brothers a cheque of `1 lakh and a laptop. “One hopes that their IIT achievement will bring about a change in people’s perception about the lower castes,” he reportedly said. Local Congress MP Pramod Tiwari and his MLA daughter, Aradhana Mishra, have also announced that they would contribute a month’s salary to pay for their admission fee. Talking to APN, Raju said: “When we spoke to the CM about problems in our village, he announced that it would be developed as an Adarsh Lohia Gram. If there is talent, then neither poverty nor tax can stop us,” he added. IL — Ashish Mehta

Legal help The constitution of India is clear about atrocities on Dalits. Not only is untouchability abolished, Article 17 makes any act of imposing disability, stemming out of untouchability, a punishable offence. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 has made the law more stringent.

BREAKING BARRIERS (L-R) Brijesh and Raju are the sons of a poor daily wage worker

INDIA LEGAL July 15, 2015

TECH/ Internet Censorship

Stop being a BLOCKHEAD! In India, various laws and rules have allowed the government to block internet content with impunity and misuse this for narrow political objectives By Priyvrat Singh Chouhan

July 15, 2015

N a landmark judgment on March 23, 2015, Section 66 (A) of the Information Technology Act, 2000, was struck down by the Supreme Court. This controversial provision had made posting offensive material on social networking sites an offense punishable by up to three years in jail. However, laws governing censorship of the internet continue to be in place. In the very same case, the Supreme Court declared Blocking Rules to be constitutional. Section 69A of IT (Amendment) Act, 2008, allows the central government to block content which, it believes, threatens the security of the state, the sovereignty, integrity or defence of India and friendly relations with foreign states. A set of procedures and safeguards have also been laid down, better known as Blocking Rules. As a piece of legislation, it seems reasonable. But if we keep in mind the government’s ability to misuse it, it doesn’t score high on desirability. The procedure is that the government has to appoint a designated officer to issue directions for blockings. All complaints will pass through nodal officers and then be examined by a review committee. Then, the originator will be asked to appear before the committee within 48 hours for a hearing and it is only after that, that a particular content will be blocked. Strangely, all the officers and committees are selected by the government itself. This doesn’t give rise to much confidence as it is unlikely they will ever go against the government. As far as the hearings are concerned, there has not been a single one on record. Moreover, there is no requirement of a court order for the government to censor internet. TOTAL SECRECY Though the apex court says that one can always go to court if one feels that blocking your content is unjustified, it is almost impossible to challenge the government’s decision simply because no one is informed about the content being blocked, leave aside the reason for it. When someone tries to access a blocked website or URL, it says “404 error” or “server not found”, leading people to

believe that there is actually some problem with the server. In other words, the government is not just hiding important information but also misleading people. Rules, too, have helped the government. Section 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, says: “Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.” This means that the government can block any content or website (as they have done recently with over 20 websites, including Vimeo, GitHub, Dailymotion and Imgur) without letting people know. Because of the secrecy surrounding the process, it is difficult to assess how much material in India is being blocked. RTIs are of no use either as all the information is classified “top secret”. Lack of transparency means lack of accountability. MOTIVATED MOVE In April 2011, two new rules came into force—Information Technology (Intermediaries guidelines) Rules, 2011 and Information Technology (Guidelines for Cyber Cafe) Rules, 2011. These gave the government and people immense power to censor the internet. Interestingly, these rules were made by the Department of Information Technology, which means they were never debated in parliament. The Centre for Internet and Society (CIS), a Bangalore-based organization looking at research and advocacy, has been highly critical of these rules. With the intention of testing the censorship powers of these rules, they sent frivolous complaints to a number of intermediaries. Six out of seven removed content, including search results listings, on the basis of the most ridiculous complaints. And those whose content was removed were not told, nor was the public informed. The government has, therefore, made censoring the internet an easy job. Though there have not been too many cases of misuse of this power by people, these laws show that for our government, upholding people’s right to express themselves is not important. The question that now arises is: Can the

government be trusted? Reports released by Google and Facebook and recent incidences reveal the answers. According to Facebook’s global transparency report for the second half of 2014, it restricted access to 5,832 pieces of content in India during JulyDecember 2014, the highest among all countries. Most of this blocked content was restricted at the behest of the Indian government and its agencies. India is followed by Turkey on the list, with 3,624 restricted pieces of content. In November last year, the Facebook page of the controversial “Kiss of Love” protest was blocked, along with the profile pages of all 15 administrators and a related Facebook group, Free Thinkers. This page was reinstated following a public outcry. Google, in its transparency report for 2014, went a step further by actually giving out a list of things which government agencies wanted removed. There were 2,513 requests for content removal in India and 60 percent of this was removed. Very few of these requests were for removal of hate speeches or defamatory content. Requests made by the government included one to take down a YouTube video showing a prospective candidate using illegal financial methods to gain vote share and a request by the police to take down a blog post revealing a leading politician’s sex scandal. These reports paint an alarming picture of the power of the government and the dismal rights of netizens to express their opinions. It is time the government starts respecting peoples’ rights and stops treating the internet as a potential danger to society. IL

Internet Censuring At

the behest of the Indian government, Facebook restricted access to 5,832 pieces of content during JulyDecember 2014 This was the highest among all countries and was followed by Turkey with 3,624 restricted pieces of content. Last November, the Facebook page of “Kiss of Love” protest was blocked, along with the profile pages of all 15 administrators and a related Facebook group In 2014, Google said there were 2,513 requests for content removal in India; 60 percent was removed.

INDIA LEGAL July 15, 2015

SPECIAL STORY/ Contempt of Court

MY LORD, LET THE LAW PREVAIL! All you wanted to know about the Contempt of Courts Act By Dr GB Reddy WHAT IS CONTEMPT OF COURT? Anything that curtails or impairs the freedom of limits of the judicial proceedings. Conduct that tends to bring the authority and administration of law into disrespect or disregard or interferes with or prejudices parties or their witnesses during litigation. Words spoken or written which obstruct or tend to obstruct the administration of justice. Publishing words which tend to bring the administration of justice into contempt, to prejudice the fair trial of any cause or matter, which is the subject of civil or criminal proceeding or in anyway obstructs the cause of justice.

Amitava Sen

July 15, 2015

CONTEMPT OF COURT UNDER CONSTITUTION Art. 129: Supreme Court to be a court of record—The Supreme Court shall be a court of record and shall have all the powers of such a court, including the power to punish for contempt of itself. Art. 215: High courts to be courts of record— Every high court shall be a court of record and shall have all the powers of such a court, including the power to punish for contempt of itself. Art.144: Civil and judicial authorities to act in aid of the Supreme Court—All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

Art.141: Law declared by Supreme Court to be binding on all courts—The law declared by the Supreme Court shall be binding on all courts within the territory of India. Art. 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc— (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. Art.261 (1): Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. SALIENT FEATURES OF CONTEMPT OF COURTS ACT, 1971 Objectives: (a) To define and limit the powers of certain courts in punishing contempts of court; (b) To uphold the majesty and dignity of law courts and ensure their image in the minds of the public is in no way whittled down. Sec. 2 (a) of the act deals with “contempt of court”, which means civil contempt or criminal contempt. Sec 2 (b) defines “civil contempt”, which means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Sec 2 (c) defines “criminal contempt”, which means the publication (whether by words spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which— (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Sec 3 says innocent publication and distribution of matter is not contempt. Sec 4 says fair and accurate report of judicial proceeding is not contempt. Sec 5 says fair criticism of a judicial act does not attract contempt. Sec 6 says complaint against presiding officers of

subordinate courts is not contempt if the statement is made in good faith. Sec 7 says publication of information relating to proceedings in chambers or in camera is not contempt, except in certain cases. Sec 9 says the contempt act does not imply enlargement of the scope of contempt. Sec 10 deals with power of high court to punish contempt of subordinate courts—Every high court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself; provided that no high court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. Sec 11 deals with power of high court to try offenses committed or offenders found outside its jurisdiction—A high court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction , and whether the person alleged to be guilty of contempt is within or outside such limits. Sec 12 deals with punishment for contempt of court—(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both— provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation: An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bonafide. Sec 14 deals with procedure where contempt is in the face of Supreme Court or a high court— (1) When it is alleged, or appears to Supreme Court or high court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall— (a) cause him to be informed in writing of the contempt with which he is charged; (b) afford him an opportunity to make his defence to the charge; (c) after taking such evidence as may be necessary INDIA LEGAL July 15, 2015

SPECIAL STORY/ Contempt of Court

or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and (d) make such order for the punishment or discharge of such person as may be just. (2) Notwithstanding anything contained in subsection (1), where a person charged with contempt under that sub-section applies, whether orally or in writing, to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the Court is of opinion that it is practicable to do so and that in the interests of proper administration of justice the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case, before the chief justice for such directions as he may think fit to issue as respects the trial thereof. (3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under sub-section (1) which is held, in pursuance of a direction given under sub-section (2), by a judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub- section (2) shall be treated as evidence in the case. (4) Pending the determination of the charge, the Court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify— Provided that he shall be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the Court. Provided further that the Court may, if it thinks fit, instead of taking bail from such person, discharges him on his executing a bond without sureties for his attendance as aforesaid. Sec 15 deals with cognizance of criminal contempt in other cases—In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by: (a) the Advocate-General, or

July 15, 2015

(b) any other person, with the consent in writing of the Advocate General. (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. Sec 17 deals with procedure after cognizance—(1) Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise. Sec 18 deals with procedure to decide contempt of Court—(1) Every case of criminal contempt under Section 15 shall be heard and determined by a Bench of not less than two Judges. Sec 19 deals with appeals—(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt— (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court. (4) An appeal under sub-section (1) shall be filed (a) in the case of an appeal to a Bench of the High Court, within thirty days; (b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against. Sec 20 deals with the limitation period for actions of contempt—no court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. ESSENTIALS OF CIVIL CONTEMPT OF COURT The elements needed to establish a contempt are: 1. the making of a valid court order, 2. knowledge of the order by respondent, 3. ability of the respondent to render compliance, and 4. willful disobedience of the order. IL —The writer is a lawyer and professor at Osmania University. His brilliant academic record includes three Gold Medals in LLB and one in LLM. He has authored 18 books.

MORE NEWS/National

India launches Nuclear Insurance Pool FOLLOWING France, Russia and the US, India too has launched a Nuclear Insurance Pool to address the risk of nuclear accidents. India Nuclear Insurance Pool (INIP) is the 27th insurance pool created by several countries to cope with devastation caused by a possible nuclear disaster. The pool has been launched by the Department of Atomic Energy. The amount of premium will depend on factors such as risk

NPP derecognized THE National People’s Party (NPP), convened by former Lok Sabha speaker, PA Sangma, was derecognized for its failure to file details of its expenditure during the 2014 general election within the prescribed limit of 90 days. The Election Commission suspended the recognition of NPP as a party in Meghalaya. It took this decision under the powers vested in it as per the Election Symbols (Reservation and Allotment) Order, 1968, which states that the commission can suspend or withdraw recognition of a political party for its failure to observe the Model Code of Conduct. It’s the first case wherein a party’s recognition has been suspended under the 1968 order. NPP is a member of the ruling National Democratic Alliance (NDA).

Poor performance in civil justice

ACCORDING to a new study on the rule of law experienced by citizens, India figures in the top 50 countries in the world for an effective criminal justice system. However, the study finds that it is among the worst performing countries when it comes to civil justice. The index was released by USbased World Justice Project, which ranks India in third position out of six South Asian countries in terms of overall rule of law performance. The top performer in 2015 was Denmark, while in the South Asian region, the top performer was Nepal. India’s performance for criminal justice places it at 44th rank globally. In contrast, its rank in civil justice is 88.

probability, possible severity of damage and exposure to people and property around nuclear installations. It will be administered by the General Insurance Corporation of India. Out of the total fund amount of `1500 crore, the British Nuclear Insurance Pool has invested `500 crore. It will provide insurance cover for both hot zones (radiation and nuclear reactors) and cold zones (outside the reactor areas).

Punishment for spitting in Maharashtra SPITTING in Maharashtra will cost you dear as the state government is set to bring a law against it. Besides having to pay a fine of `1,000, offenders will have to render community service at public places and government offices, according to a report in The Times of India. Punishment for second-time offenders and repeaters is more stringent. While second-time offenders will have to pay a fine of `3,000 and render three-day community service, repeat offenders will have to pay `5,000 and do five-day service. Licenses of taxi and auto drivers will be confiscated if they violate the law. If the Bill is passed, Maharashtra will become the first Indian state to have such a law.

Landlords, tenants can live in peace THE Union government, in a move to secure the interest of both landlords and tenants, is coming up with a new tenancy law. The Ministry of Housing and Urban Poverty Alleviation has drafted the Model Tenancy Bill, 2015, according to which landlords will no longer have to worry about squatting tenants and tenants need not worry about

untimely eviction. The Bill now needs cabinet’s approval. The Bill fixes the upper limit for security deposit up to three times that of the monthly rent. Tenants can claim rent reduction in case of deterioration of service. Property owners can terminate the agreement in case of nonpayment of rent or misuse of property. INDIA LEGAL July 15, 2015

EDUCATION/ Exams/ Unfair Means

ONE LEAK TOO MANY

Tim Ryan

Leakage of exam papers shows moral turpitude of a high degree. Will the intervention by the Supreme Court deter people from using unfair means again? By Salik Ahmad

HE leakage of exam papers of various prestigious exams has given sleepless nights to students, parents and authorities. What is more alarming are reports that this is a racket and the reported cases are just the tip of the iceberg. As soon as the All India Pre-Medical Test (AIPMT) was conducted on May 3, rumors ran rife that the paper had been leaked. The Supreme Court (SC) sought an investigation into the matter after hearing the pleas of three people who demanded a re-test. On June 15, the apex court directed CBSE to conduct the examination again, which will now be held on July 25. Similarly, Jamia Millia Islamia (JMI) also cancelled its BTech entrance test on June 13,

July 15, 2015

where about 40,000 candidates appeared, and postponed its BDS entrance test, the next day. After reports of leaks began doing the rounds, the varsity registered an FIR. It conducted its BDS exam on June 25 and the BTech exam on June 27. JMI’s media coordinator told India Legal: “We responded swiftly to the development and worked hard to arrange the re-test in record time and offset the loss.” Aligarh Muslim University (AMU) too quashed its April 26 medical entrance exam in which over 50,000 students appeared. Selection of a disproportionately large number of candidates from the Kozhikode centre in Kerala led to the test being cancelled and a enquiry being conducted by a panel headed by a retired high court judge. The SC judgement in AIPMT noted that

“We are conscious of the fact that every examination being conducted by a human agency is likely to suffer from some shortcomings, but deliberate inroads into its framework of the magnitude and the nature, as exhibited, in the present case, demonstrate a deep seated and pervasive impact....” — SC judgement which annulled AIPMT

an examination that involves public participation should be a “blemishless process”. It said: “We are conscious of the fact that every examination being conducted by a human agency is likely to suffer from some shortcomings, but deliberate inroads into its framework of the magnitude and the nature, as exhibited, in the present case, demonstrate a deep seated and pervasive impact....” The court pointed out that re-conducting the exam was an obligation to society, in general, and the student community, in particular, and it was essential to restore the confidence of the people. MIXED FEELINGS The news elicited mixed response from the students—while some were happy to be given a fair chance, others were disillusioned by the entire episode. “The whole process of the exam being cancelled and re-conducted has been a major loss. Many students have enrolled in expensive institutions for fear of losing a year or preparing for next year. The sessions will begin late and the situation at present is highly chaotic,” said Muskan Data,

a candidate who appeared for AIPMT. Parents too were disgruntled. Pushpa Chhabra, whose daughter Navjot took the test says: “My daughter topped the school. She was in great spirits when she gave the test the first time. But this cheating scandal has dampened her spirits. It’s sad that so many students have to go through this.” The dean of Maulana Azad Medical College, Dr Deepak K Tempe, told India Legal about the implications of such incidents on the academic session. “There is going to be 2-4 weeks’ delay in starting the session. We’ll be hard pressed to complete the given number of hours, both theory and practice, as prescribed by the Medical Council of India. It’s going to burden the teachers and is harming education in India as a whole. We strive so hard to maintain high standards in medical education; unworthy candidates will compromise the quality and ultimately, healthcare in the country,” he added. Re-conducting the test will incur a huge cost to the government. It is hoped that SC’s decision will deter people from using unfair means in future. IL

THE FLIP SIDE The AIPMT re-exam will have its implications on the academic session of medical colleges

INDIA LEGAL July 15, 2015

HERITAGE/

Interview/ AGK Menon

“The Govt Wants to Destroy Lutyens’ Bungalow Zone”

N May this year, when the center withdrew Delhi’s bid for world heritage city at the last moment, it undid years of groundwork by INTACH in preparing the case for the government. And with the Minister of State for Culture and Tourism Mahesh Sharma reiterating that the decision to bid for heritage status has been deferred, it’s one more nail in the coffin. Delhi had been selected over Mumbai and Ahmedabad and the paperwork was accepted by UNESCO and various government bodies in January 2014. Lutyens’ Delhi and Shahjahanabad were chosen as bidders for the heritage status. AGK MENON, heritage conservationist and architect, and Delhi convener of INTACH, had spearheaded the efforts for Delhi’s heritage status. He tells Associate Editor MEHA MATHUR what went wrong. Photos: Anil Shakya

July 15, 2015

Mahesh Sharma has said that Delhi’s bid for heritage status has been deferred for now. Does that mean that it’s over now? No, we will be pushing for it. This year, there is no chance but for next year, we are trying to make sure. What kind of effort had gone into preparing the case? Tremendous and it was a complicated process. Many a time, an application is rejected not because we don’t have valuable heritage but because it’s not correctly prepared. We made sure it was done properly. It also needed approval of governments at the central, state and local levels. It’s one thing to follow UNESCO guidelines and satisfy them, but we also had to convince local civic authorities, the MCD and the NDMC. All of them have their own requirements and each has a say. The fact that we were able to satisfy all of them was a remarkable effort, and that too, not for one monument, but a city. In January 2014, the document was finally accepted by all the parties. What were the specifications of UNESCO? It has detailed guidelines. One of the problems we found was that most of the guidelines were applicable to European cities—well-funded, wellmanaged, well-looked-after heritage. But heritage tag for a growing city like Delhi, especially with poor people, poor governance and poor resources, became a big challenge. For example, many say that Shahjahanabad is a slum. Obviously, a country like India cannot confirm to the guidelines like London or Paris, but that doesn’t mean that we don’t have heritage. So, the argument that we made was that while we have heritage and we are looking after it, there are poor people too who need to be looked after. It’s not that heritage can be taken care of only

enough. You need heritage that you can feel and see. On these parameters, other cities of Delhi, such as Mehrauli, Jahanpanah, etc, did not qualify. So the bid is not for the city as a whole. No. Even in the case of Rome, it’s not the whole city, just a few areas.

by rich people or that it requires a lot of money. The negotiations took a lot of time. The government would get perturbed by UNESCO guidelines and the dominant feeling was: “Why can’t we do it? It’s our country. We will do what we want.” So what really went wrong at the last moment? The center developed cold feet. Ultimately, it wanted to destroy the Lutyens’ Bungalow Zone. Earlier, they were not able to say it openly. That zone is less than two percent of Delhi’s area. Why can’t we leave this area? Did it have to do with the change of government? Yes, certainly. Mumbai and Ahmedabad are also strong contenders for heritage status. Can they vie for it next year? Of course. They might not have the same problems as Delhi. If the state administration wants to do, it will do it. But here, we have part of the city controlled by the central government and part of it by the state government. Why was heritage status targeted only for Shahjahanabad and Lutyens’ Delhi when there are other historical areas in Delhi and many monuments? The guidelines of UNESCO are very strict. Just having heritage is not

What does getting heritage status entail? What responsibilities fall on the city and the national government? If it’s a heritage city, you look after it. So, since Taj Mahal is a world heritage site, you look after it. If you don’t, they will take it out of the list. Just like it’s happening in Hampi. It’s your love for your city that you want to show. That’s why we argued that it’s good for town planning too. Does it mean relaying certain areas around it? No, you only have to preserve what exists. For example, in Shahjahanabad, all the lanes have wires which need to go underground. The area needs to be cleaned up. Does it have any advantage in terms of UNESCO providing funds? No, UNESCO doesn’t provide any funds. It is something that you do for yourself. You look after the city because of pride in it. Also, statistics shows that in all cities declared as heritage sites, tourism has witnessed a boom. With that, all related activities flourished. That’s the advantage. Do Indians have pride in their cities? For 30 years, we have been trying to create that awareness—that the past is an asset, that heritage and development can go together. You don’t have to replace one with another. As a mature society, we need to look after our heritage too. Otherwise, it will be the law of the jungle. IL INDIA LEGAL July 15, 2015

CRIME/ Sexual Assault

Disputed Versions An American student levels sexual harassment charge against filmmaker Mahmood Farooqui

house on March 28 to collect passes for his performance the next day. His wife was not at home and that’s when the alleged assault took place.

SCRIPT GONE AWRY The director couple, Mahmood Farooqui and Anusha Rizvi

July 15, 2015

he arrest of filmmaker Mahmood Farooqui on June 20 by the Delhi Police on charges of alleged sexual assault has taken a new twist. While a 35-year-old American woman filed a complaint at the New Friends Colony Police Station in New Delhi on June 19 alleging that Farooqui had sexually assaulted her in March this year at his rented flat in Sukhdev Vihar, an acquaintance of his claimed that the case was politically motivated. Incidentally, Farooqui is best known as the co-director of Peepli Live, along with his wife, Anusha Rizvi. An FIR has been registered and Farooqui is currently in judicial custody pending police investigation. A chargesheet will be filed after the investigation. The woman, pursuing a PhD from Columbia University, came to India regarding her research on Gorakhnath temple in Gorakhpur. Farooqui, a native of Gorakhpur, had helped her with her research and introduced her to concerned people. Her complaint states that she had gone to Farooqui’s

ne of Farooqui’s acquaintances has claimed that he is being framed by a friend-turned-foe. “There are gaping holes in the woman’s version of the incident. There was no show of Farooqui on March 29. There are people who are instigating the woman,” he claims. “Mahmood left for a month-long meditation camp after the first week of April,” he adds, “and told his wife to take care of emails he would receive during the period. After he left, his wife received a mail from the woman which said: ‘Whatever happened happened. We’ll still be friends.’ Rizvi did not understand the context and in confusion, replied with an apology. The woman claims that she sent the mail two days after the incident, but if this was so, Mahmood, who was seeing his mails till the first week of April, would have responded himself.” Anusha Rizvi, in defense of her husband, circulated a note which read: “The complaint is manipulated and false. We don’t want to make any further comments on the matter because the case is under investigation.... In the meanwhile, we are thankful for the show of support from friends, colleagues and wellwishers. We are determined to fight this till the reality is presented before the people.” The DCP of South-East District, Mandeep Singh Randhawa, refused to comment on the issue, saying it was sensitive. The woman has alleged sexual assault, which, after the Criminal Law (Amendment) Act, 2013, has become a wide-ranging term. The amendment replaces the word “rape” with “sexual assault”, enlarging the ambit of the term . The law was amended in the light of the Justice Verma Committee Report after the 2012 Nirbhaya gang rape case. IL

—Salik Ahmad

INTERNATIONAL BRIEFS

Hong Kong rejects electoral reforms PRO-DEMOCRACY politicians of Hong Kong rejected a Beijingbacked electoral reforms package which would have, for the first time, given a chance to the people to choose a chief executive. The reason for the rejection was that the list of candidates, from which people could select their top leader, was to be approved by the Chinese government. The package was slammed by leading politicians from Hong Kong as being “fake”.

Cut emission by 25 percent: Netherlands court

Germany releases Al Jazeera journalist

IN a major victory for environmental activists, the Hague District Court has ordered the government to cut the country’s greenhouse emissions by at least 25 percent by 2020. The court made the ruling in a case brought by a sustainability organization, Urgenda, on behalf of some 900 citizens, that the gov-

Out of 37 lawmakers, 28 voted against the reforms, eight supported it and one abstained. The rejection of reforms can escalate tensions between Hong Kong and Beijing. In September 2014, Hong Kong witnessed the Umbrella Revolution, a mass civil disobedience movement after Beijing’s decision to introduce certain reforms which were seen by people as being highly restrictive and antidemocracy.

ACCORDING to a Wall street Journal report, Al Jazeera journalist Ahmad Mansour was released by Germany after being detained for two days, at Egypt’s request to extradite him. In October 2014, an Egyptian court had sentenced Mansour to 15 years in prison in absentia on charges of torturing a man in Cairo’s Tahrir Square during the 2011 revolution. Critics say the judgment was politically motivated. The court had jailed three Al Jazeera journalists on charges that included aiding a terrorist group. One of them, Australian Peter Greste, was released in February after 400 days in prison. Mansour’s detention led to criticism of Angela Merkel’s government for siding with Egyptian President Abdel Fattah Al Sisi’s regime.

North Korea sentences two South Koreans

ernment has a duty to protect its people and achieve a sustainable environment. Netherland is a low-lying country. This can have serious repercussions if the climate change is not brought under control.

NORTH KOREA’S Supreme Court has sentenced two South Koreans to hard labor for the rest of their life, according to Korean Central News agency, the state news agency of North Korea. Kim Kuk Gi and Choe Chun Gil were found guilty of spying for South Korea’s intelligence wing. South Korea has denied the allegations. Kim and Choe were accused of violations of Articles 60, 64, 65 and 221 of the Criminal Code of Democratic People’s Republic of Korea. In the course of the inquiry, the accused confessed to all the crimes, including taking an active part in state-sponsored political terrorism.

Bangladesh upholds death sentence of Jamaat leader THE death sentence of Jamaat-e-Islami general-secretary, Ali Ahsan Mujahid, for war crimes committed during the 1971 independence war was upheld by Bangladesh’s Supreme Court, according to Dawn. Mujahid was found guilty in 2013 of five charges, including murder and torture. An

International Crimes Tribunal was set up by Awami League in 2010 for trying war criminals and since then a large number of Jamaat leaders have been convicted. Mujahid could soon be executed unless the case is reviewed again by the same court or he is granted clemency by the country’s president. INDIA LEGAL July 15, 2015

STATES/ Kerala / Population

Nought-y Problem It is the most literate state, but the population growth rate is falling. And within a decade, Kerala will have zero growth rate. With a sharp drop in student enrolment, schools are being demolished! By TK Devasia

HEN schools closed for summer vacation last year in Kerala, parts of two buildings of a 140year-old governmentaided school were razed. The state government closed down the Malaparambu Upper Primary School in Kozhikode in northern Kerala due to lack of students. However, teachers, parents, students and politicians joined hands and thwarted the move. They re-built and re-opened the school with con-

July 15, 2015

tributions from the public. However, the high court in Kochi did not find any merit in continuing the school, which had only 44 students, eight teachers and two support staff at the time of the demolition. It upheld the governmentâ&#x20AC;&#x2122;s earlier order and directed the education department to rehabilitate the students and teachers to nearby schools. PK Padmarajan, who has been running the school since 1996, said the school will be finally shut down from June 1, 2015. He said

PROBLEM OF PLENTY? (L-R) The demolished school building at Malaparambu, Kozhikode; Sit-in protest by students and teachers against the demolition

the school had less than 30 active students during the last academic year. UNECONOMIC SCHOOLS This is the plight of many government and aided schools in Kerala. According to the 2014 state economic survey, as many as 5,412 schools were running without the required number of students (average is 15 per class) between 2013-14. Such schools are termed uneconomic. As per Kerala education rules, a lower, upper-primary or high school with a student strength of less than 25 per standard or batch is called an uneconomic school. A recent study by the education department showed that more than 3,500 schools in 2014 had less than 30 students each, while the number of teachers was 46,240, ie, 13 teachers for every 30 students. This works out to one teacher for every two students. However, the Right to Education (RTE) Act stipulates a pupil-teacher ratio (PTR) of 30 or less for schools with less than 200 students. Schools with greater enrolment should have a PTR of 40. The education department study revealed that as many as 593 schools had students

between 10 and 20. On an average, there are 11 teachers for 16 students here. The number of schools with students between 21-30 are 717 and 31-40 is 756. Thatâ&#x20AC;&#x2122;s an average of 15 teachers for 25 students in the former and 17 teachers for every 35 students in the latter. LOW GROWTH RATES A major reason for the sharp drop in student enrolment in government and aided schools is the continuous fall in the growth rate of Keralaâ&#x20AC;&#x2122;s population. According to the Kerala Development Report (KDR), the number of children for every 10 people dropped from 4 in 1961 to 2 in 2001. Another reason is the growing preference for private education and central syllabus. The honorary professor at Thiruvananthapuram-based Centre for Development Studies (CDS), KC Zacharia, says this trend will continue as the number people below 30 years is falling steeply. This, he says, will lead to zero population growth in Kerala in another 10-20 years. The 2011 Census shows that the growth rate in the 0-6 age group had already become negative and was -8.44 percent between

According to the 2014 state economic survey, 5,412 schools did not have the required number of students in 2013-14. Kerala education rules say that schools with less than 25 students in a batch is uneconomic.

INDIA LEGAL July 15, 2015

STATES/ Kerala/ Population

KERALAâ&#x20AC;&#x2122;S WOES

Growth rates

In education Total enrolment of students:

38.01 lakh (2014-15); decline of 1.32% over last year Deepest decline in student enrolment: Pathanamthitta district

0% growth

Population of Pathanamthitta in 2001 and 2011, respectively

12.34 lakh/11.97 lakh (2.97% dip) No of children in Pathanamthitta in

0-6

age group in 2001:

1.27 lakh

Zero population growth in: 10-20 years. No of children for every 10 people in 1961: 4 No of children for every 10 people in 2001: 2 Growth rate over the last decade: 4.9%; national growth rate: 17.6% Kerala population in 2001: 3.18 crore; March 2011: 3.34 crore

Age factor

No of children in Pathanamthitta in

0-6

age group in 2011:

96,837 (2.2% dip)

No of uneconomic schools in Kerala:

5,412

(2013-14)

No of schools with less than

30 students Over 3,500

(2014)

Total no of teachers for every

30 students: 46,240 No of students in lower primary school in1991:

28,47,000

No of students (projected) in lower primary school in 2051:

A major reason for a sharp drop in student enrolment is the continuous fall in the growth rate of Keralaâ&#x20AC;&#x2122;s population. Another reason is the preference for private education and central syllabus. 72

July 15, 2015

16,38,000

Percentage of people over 60-plus in 1981: 8 Percentage of people over 60-plus by 2016: 14 No of people over 70-plus in 1991: 10 lakh No of people over 70-plus by 2021: 25 lakh No of people over 80-plus in 1991: 2.9 lakh No of people over 80-plus by 2021: 8 lakh Growth rate of working age (15-59) population in 1961: 9 Growth rate of working age (15-59) population in 1991: 7 Growth rate of working age (15-59) population by 2021: 4

2001 and 2011. Further, while the national growth rate during the last decade was 17.6 percent, it was 4.9 percent in Kerala. The population of Kerala as on March 2011 was 3.34 crore as against 3.18 crore in 2001. Of the total population, 48 percent were males and 52 percent were females. Besides the population factor, even enrolment of students is coming down throughout the state. As per the Economic Survey, the total enrolment in 2014-15 in Kerala was 38.01 lakh, marking a decline of 1.32 percent over the previous year. The deepest decline in student enrolment is in Pathanamthitta district, which has already touched zero population growth. According to the 2011 census, the population of Pathanamthitta declined from 12.34 lakh

in 2001 to 11.97 lakh in 2011, marking a 2.97 percent dip. The number of children in the 06 age group in the district came down from 1.27 lakh in 2001 to 96,837 in 2011, marking a decrease of 2.2 percent. Uneconomic schools were least in the tribal-dominated district of Wayanad, where the population grew by 2.45 percent compared to 2001. But the 0-6 age group witnessed a decline by 2.04 percent between 2001 and 2011. BLEAK FUTURE The school-going population is expected to shrink considerably in the coming decades. According to KDR, children in lower primary school are projected to decline from 28,47,000 in 1991 to 16,38,000 in 2051. This

Jeevan Jose

will automatically render more and more schools “uneconomic”. Though economic experts have been suggesting closure of uneconomic schools and retrenchment of surplus teachers, successive governments have been sustaining them and paying the teachers without doing any work. Zacharia, who has done several studies on population, says it did not make any economic sense to keep these schools open only for the sake of teachers. The closure of these uneconomic schools may not hurt the children much as the state has sufficient schools to cater to all the school-going children. Out of total 15,000 schools, more than 12,600 are government or government-aided schools. Students from the uneconomic schools can easily be relocated to nearby schools as the state has one lower primary school for every sq km and one high school for every 4 sq km, according to a 2002-03 survey. During 1991-93, the government tried to close down some uneconomic schools, but the move was dropped due to resistance from highly unionized teachers. Economists and demographers see an economic opportunity arising from the closure of uneconomic schools. Zacharia feels it could meet the shortage of old-age homes in the state due to the rapid rise of aged people, left to fend for themselves due to migration by children in search of jobs. SS Irudayarajan, also from CDS, says that the money spent on uneconomic schools could be utilized for improving the quality of education.

AGEING POPULATION CDS’s population projection for the next few decades indicates a tougher challenge ahead. The percentage of the 60-plus age group in the state, which stood at 8 percent in 1981, is projected to jump to 14 percent by next year. Similarly, the number of those in the 70-plus and 80-plus age group is projected to rise from 10 lakh and 2.9 lakh in 1991 to 25 lakh and 8 lakh in 2021, respectively. By the middle of this century, Irudayarajan says, over a quarter of Kerala’s population will be above 60. In sharp contrast, the working age population (15-59) is declining sharply as the growth rate in this category dropped from 9 percent in 1961 to 7 percent in 1991 and is projected to hit 4 by 2021. However, the silver lining is that the demographic transition will reduce the need for people to migrate for employment. Zacharia believes the state will be able to provide a job for every youth when it achieves zero population growth. The state is already facing an acute shortage of workers to do manual jobs and now depends on more than 30 lakh migrant labor from Uttar Pradesh, Bihar, Odisha, West Bengal and Tamil Nadu to till its land, harvest crops, construct roads, bridges and buildings. This number nearly equals those of Malayalees working abroad, which is 2.5 lakh. So even as Malayalees toil in foreign lands, they are paying for migrant labor to come and work in their state. These are the pervading ills of zero population growth. IL

Jeevan Jose

BLESSING IN DISGUISE? (Top left) The demographic transition in Kerala will reduce the need for people to migrate for work (From top right) Unviable schools can be used as old-age homes

INDIA LEGAL July 15, 2015

GLOBAL TRENDS/ Syria War

How Islamic State Victories Shape the Syrian Civil War Despite a few setbacks, the IS, because of its flexibility and adeptness, is proving to be a formidable force, and the government forces and rebels will have to come on a common platform to beat this common enemy By Omar Lamrani

N a display of considerable flexibility on the battlefield, the Islamic State managed to take rebel forces in northern Aleppo by surprise with a large-scale offensive aimed at securing more territory along the SyriaTurkey border. After drawing down its forces in the area, the Islamic Stateâ&#x20AC;&#x2122;s sudden tactical shift resulted in considerable initial gains against the rebels. Islamic State fighters seized Sawran and are advancing near Mare. But thanks to reinforcements from Aleppo city and other provinces, Syrian rebel forces have already begun to mount powerful counterattacks against the Islamic State. For now, the out-

July 15, 2015

Photos: UNI

come of the battle hangs in the balance as both sides move to bolster their ranks. THE BATTLE FOR ALEPPO The Islamic State’s advance in northern Aleppo is likely driven by its growing concern over its supply lines running through Turkey, which provide the vast majority of the group’s foreign recruits. Over the past year, offensives by the Free Syrian Army and Kurdish People’s Protection Units have steadily eroded the Islamic State’s control over border posts and towns on the Turkey-Syria border. Over the past few days, the Euphrates Volcano outfit, which is affiliated with the Free Syrian Army, openly targeted the Islamic State-held town of Tal Abyad in

northern Raqaa province. With the Kurdish People’s Protection Units advancing from alHasaka province in the east and Euphrates Volcano attacking from Aleppo province to the west, Tal Abyad could slip from the Islamic State’s grasp. The Islamic State has even reportedly begun evacuating its fighters’ families from the town, moving them southward toward Raqaa city. The Islamic State has fought long and hard to prevent the loss of northern Raqaa to Syrian rebel and Kurdish forces. However, the group has realized that fighting these forces over open terrain when they are backed by heavy coalition air support is unsustainable in the long run. Having learned its lesson from the battle for

Having learned its lesson from the battle for Kobani that stubbornness in pursuit of a failing strategy results in losses, the Islamic State has begun focusing its efforts on portions of Syria that the US-led coalition will not cover with air support.

GROUND ZERO (Above) Turkish soldiers help Syrian refugees at the Turkish-Syrian border in early June (Facing page) A resident carries a wounded child to safety following a car explosion near Damascus in July 2014

INDIA LEGAL July 15, 2015

GLOBAL TRENDS/ Syria War

group’s control, but it is also a region that is largely held by Islamist rebel factions. Because many of these factions are affiliated with Jabhat al-Nusra, it is less likely that the US-led coalition would provide air support to this territory. The Islamic State’s concerns over supply lines into Turkey and rebels’ preoccupation with loyalist forces in the region further motivate the group to concentrate its efforts on Aleppo.

TOO MANY CONTENDERS Rebel fighters of Jaysh al-Islam on the streets of Medaa town after taking control of the area from forces loyal to the president, on May 6

July 15, 2015

Kobani that stubbornness in pursuit of a failing strategy results in losses, the Islamic State has begun focusing its efforts on the portions of Syria that the US-led coalition will not cover with air support. The border of northern Aleppo province, west of the Euphrates River, represents a logical target for the Islamic State. Not only is it the sole border segment still safely under the

A BOON FOR DAMASCUS The Islamic State’s attack against northern Aleppo also serves the interests of the Syrian government in two ways. First, it has forced Syrian rebels to delay an impending offensive against loyalist forces in the province. Over the past few months, the Aleppo front has been relatively quiet, and rebels in the region have been gearing up for an assault on government-held positions in and around the city. It is possible this attack would have been timed with a similar offensive by rebels in Daraa in the country’s south. Furthermore, loyalist positions in Aleppo are weakly rein-

DISUNITED, WE SUFFER (Clockwise from extreme left) Rebel fighters in Hama; Al-Qaeda forces in Idlib province; Kurdish nationals protest in Brussels against the IS attack on Kobani town

forced at the moment because their supply lines have been threatened and Damascus has prioritized other fronts. Since the rebels now have to postpone or cancel their planned attack to address the growing Islamic State threat, the group’s advance comes as a muchneeded reprieve for loyalist troops in Aleppo. Second, the Islamic State’s push into Aleppo has prompted Jaish al-Fatah, the rebel group responsible for repeated victories against government forces in Idlib province, to reallocate a considerable number of its fighters to the Aleppo front to reinforce their beleaguered allies. In the light of emerging reports that the Islamic State has captured a number of families of Ahrar al-Sham fighters, who make up one of the leading subgroups within the Jaish al-Fatah organization, it is all the more likely that Jaish alFatah rebels will turn much of their attention toward the Islamic State in northern Aleppo, a windfall for hard-pressed loyalist units in Idlib province that were being pummeled by the rebels. While the diversion of rebel forces to

Aleppo has clear benefits for the Syrian government, it is facing problems of its own stemming from Islamic State activities in other areas of the country. Following the Islamic State’s capture of Palmyra, the group is now advancing perilously close to the key government-held city of Homs. Islamic State fighters in the region are also moving to cut off and possibly assault the T4 air base, one of the government’s most important air bases and one that is critical to air operations over eastern and central Syria. The Islamic State is quickly proving to be a major threat to both rebel and loyalist forces in Syria. Having long devoted the majority of their fighters and efforts to battles against each other, rebel groups and Damascus are becoming increasingly aware that they cannot afford to let the Islamic State take advantage of the country’s internal conflict to seize weakly held territory. This is particularly true as the group converges on important populated areas such as Aleppo or even Homs and Damascus, where it previously had no substantial presence. Though the Islamic State certainly faces some critical threats of its own, including rebel and coalition efforts to cut off its supply lines through Turkey, the group is still able to maintain its momentum. Each new base, town or supply depot that it secures only boosts its foothold in Syria’s civil war, which in turn translates into gains across the border in Iraq. The Syrian government and disparate rebel forces must now dedicate more of their attention to the Islamic State threat as it becomes an increasingly important factor in their battle plans and objectives. IL —Courtesy Stratfor

Gloomy Forecast The Islamic State will

prioritize the defense of its core supply lines, used to provide equipment and much-needed recruits. The Islamic State will

continue to demonstrate considerable flexibility in its offensive operations. The Syrian

government and rebel forces will have to increasingly devote their attention and resources to fighting the Islamic State, rather than prioritizing battles with each other.

INDIA LEGAL July 15, 2015

MORE NEWS/ International

France bans UberPOP service THE FRENCH government has cracked down on US-based cab service Uber as private taxi drivers blocked major transport hubs across the country against its new mobile app, UberPOP. This app provides car service to passengers by linking them with private car drivers. Interior Minister Bernard Cazeneuve also took note of unwelcoming attitude of company officials

towards the customers and ordered immediate termination of service in France. However, Uber expressed disagreement with this and communicated that banning the service was against the freedom to do business. The order includes discontinuation of UberPOP app and seizure of any car functioning against this order.

Apex Court approves “ObamaCare” US SUPREME Court justified the subsidies in Affordable Care Act (ACA), informally known as “ObamaCare”. The ACA provides for health insurance to all qualifying Americans, including 6.4 million lower and middle income Americans who would not be able to pay insurance premiums otherwise. The subsidy offers protection with regard to

Gay rights movement wins in US IN A historic judgment, the Supreme Court of the US has ruled that same sex marriage is guaranteed by the constitution, a major victory for gays and lesbians. According to The New York Times, the court ruled by 5-4 vote. The ruling implies that the 14 states which had banned same-sex marriage will no longer be able to enforce it. President Barack Obama hailed the decision, saying it was victory for America. Democratic presidential candidate Hillary Clinton also welcomed the verdict. The first state to allow same-sex marriage was Massachusetts, which had granted the right in 2004.

Italy seeks international arbitration

healthcare through health insurance marketplace, which are online price comparison websites where consumers can purchase health insurance. The ACA will extend credits to all eligible Americans not only in a given state’s own market exchanges but also in other 34 states with federal market place (exchange).

ITALY HAS sought international arbitration with India over two of its marines facing trial in India, alleging that no solution was in sight. The two marines Massimilano Latorre and Salvatore Girone were accused for allegedly shooting to death two Indian fishermen off the Kerala coast in 2012. While Latorre is in Italy on medical grounds after getting permission from the Supreme Court, Girone is still holed up in the Italian Embassy in Delhi. The trial is yet to conclude in India. Italy claims that the marines were on anti-piracy duty in international waters and had shot at the fishermen thinking they were pirates. It also wants the trial to take place in an Italian court. India wants the case to be taken up here.

Spying becomes legal in France PASSING THE contentious spying law, French parliament has granted state intelligence services an extensive legal right to eavesdrop on citizens. The new law abandons the need for judicial warrants to use a bunch of spying devices that includes cameras, phone taps and hidden microphones, etc. The law was

July 15, 2015

enacted the same day when leaked documents of US espionage against French presidents created a furore. The new law forces Internet service providers and phone companies to give up data upon request. Intelligence services will have the right to place cameras and recording devices in private dwellings.

NO HOLDS BARRED

Caught HERITAGE TAG: laws , executive led NJAC: Judiciary spar 8 between tang continue to

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

KEJRIWAL VS JUN G: Stand-off sim mers

NDIA L EEGAL GAL INDIA L EG EGAL IN A I D AL L N I Dangerous : AMMAâ&#x20AC;&#x2122;S VICTORY ict The startling verd

.com

dialegalonline ww indi www.in `100

`100

June 30, 2015

ARUNA SHANBA UG: Justice deraile d

May 31, 2015

June 15, 2015

www i dialega www.in lonline

.com

`100

MEALS

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

KING CAN

DIF WHY ISS THE LAW

FERENT FOR HIM

AND FOR THE COM

ALSO R NOOSE OVE emerges RSS NGOS?: est one, as the biggrs battle for while othe survival 36

MA MON M

CLASSIFIED: NTS DOCUME Govts Why are truth? wary of the 44

Thhhee ttrumpe TThe trumped-up ruuumpe rum rrump rumpe ump mpe m mpp dd-u d--u d-up -up uupp euphoria euph eeup eu eupho uuph pphhhoorria pho ia ccontinues ia onti ont oontin ntin ntitin nt t nues ues uue es es bbut ut m ut mu much ucchh remains boost growth rema remai re rrem emai eem ema m mai ma ainss to to be be ddone one on one ne ttoo bboo bo o stt gr row owt owth wth wt w th t an andd ddevelopment and eve evel ev eevelo velo vvel veelo elo el loopppm pmen pme pment me m men ment enntt 2222 en ent 24ai N? CENSORSHIP: Thumbs up for AmbedkarPeriyar Study Group 36

JUSTICE DHINGRA: Man behind Vadra land probe 46

VYAPAM HORROR: 32 dead and still counting 50

MODI: Mili es to Go

The trum mped euphor remainss to be-up tinues but muc done to booiastcon h growth and dev ALSO SPECIAL: elopment 22

Kashmirâ&#x20AC;&#x2122;s teleterrorism 44

PACHAU RI CASE: ICC Ă&#x20AC;QGV KLP guilty 48

INDIAN RAILWAYS: &$* XQH DUWKV `29,236.77 crore sca m 44

NJAC: Stalema over judg te appointmenesâ&#x20AC;&#x2122; ts persists 10

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

2400/-

1200/-

50%

2 Years

48 Issues

4800/-

1920/-

2880/-

60%

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

CAMPUS UPDATE

Honor for HNLU HIDAYATULLAH National Law University (HNLU), Naya Raipur, has won the prestigious “Upcoming National Law University” Award at the National Legal Summit and Awards, 2015. This award was jointly conferred by the Communication Multimedia and Infrastructure Association (CMAI), New Delhi, and International Conference on ICT in Law for Digital India and Make in India, on May 20, 2015. The award was given by the chief guest, DV Sadananda Gowda, Minister of Law & Justice, and was received by Deepak Kumar Srivastava, the university registrar.

Amity student at World University Games AMRENDER PAL SINGH CHAUHAN, a IVth Semester student of Amity Law School, Noida, has been selected to represent India at the World University Games in the 25m Pistol event. These Games are scheduled to be held in Guangzhou, China, from July 03 to 14, 2015. The trials of World University Games for shooting event were held at PAP Shooting Range, Jalandhar, last month. Shooters from universities across India participated in the trials.

Walking the talk on gender NATIONAL ACADEMY OF LEGAL STUDIES AND RESEARCH (NALSAR), Hyderabad, has become the first Indian university to issue a gender neutral graduation certificate with honorific “Mx” in place of “Mr” or “Ms”. Anindita Mukherjee requested for a gender-neutral certificate as she felt there was no reason why her documents needed to mention her gender. She told mediapersons that since law universities were at the forefront of talk on justice, rights and identity, she wanted her university to walk the talk on that point.

Symbiosis, Cork in a tie-up SYMBIOSIS LAW School has strengthened its ties with University College Cork (UCC), Ireland, with the objective of providing wider exposure to both students and faculty through exchange programs. UCC is a constituent university of the National University of Ireland. This partnership aims at integrating research and training efforts of the two institutes in the field of law and other business disciplines, along with knowledge-sharing and expertise-building among faculty and students. The collaboration will lead to the design of special curricula and advance research in various fields.

Key in your thoughts on international law INTERNATIONAL LAW SOCIETY (ILS) of the Hidayatullah National Law University (HNLU), Raipur, is organizing a national-level essay competition on international law. The event is open to undergraduate, PG and PhD law students. The Theme of the competition is “Peace and Security in International Law” and sub-themes are: “Torture under International Law”, “Cyber Attacks”, “Maritime Disputes under UNCLOS”, “Rise of Non State Actors in Light of the Middle

July 15, 2015

East and Ukrainian Crisis”, “Viability of Arms Trade Treaty”, “Drone Attacks” and “Surveillance vs Privacy”. Students will have to submit their entries as a soft copy on or before August 10, 2015, at ilsa@hnlu.ac.in.

1. Who is a “misper”? A: An unfit person B: A missing person C: A leper D: A forgetful person 2. Aged 70-79 years A: Septogenarian B: Septagenarian C: Septanarian D. Septuagenarian 3. Plural of moose A: Meese B: Moose C: Mooses D: No such word 4. Which one is correct? A: Divergents B: Divergences C: Divergencies D: Diversences 5. All good things come in .... A: threes B: late C: finally D: bits 6. A disease in abdomen. A: Hepatitis B: Otitis C: Peritonitis D: Cystitis 7. Fratricide. A: Killing of father B: Killing of co-worker C: Killing of sister

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

D: Killing of foetus 8. IMHO. A: In my Humble Opinion B: In my Home Only C: In my Home or Office D: Instant Money Here Only 9. Religious insanity. A: Bibliomania B: Sebastomania C: Hagiomania D: Megalomania 10. A macher .... A: is fearless. B: pats his own back C: gets things done. D: is a match-maker 11. Compotator. A: Drinking companion B: Nearest competitor C: Big computer D: Complete set 12. Davenport. A: Small port B: Small crane C: Golf bag D: Writing table 13. A lubber is .... A: intelligent B: stupid C: hard-working D: forgetful 14. What’s the correct spelling?

A: Previlege B: Privilege C: Priviledge D: Privelege 15. Hubris. A: Excessive pride B: African dance C: Skin disorder D: Disgrace 16. Number nine. A: Peon B: Laxative C: Lucky D: Salesman

17. Cheese eater. A: Fatso B: Cheat C: Gourmet D: Spendthrift 18. One simile is wrong. A. As black as sin B. As black as thunder C. As black as ink D. As black as bat 19. To go into a flat spin. A: To panic B: To fail C: To fall D: To lose temper 20. Skin and blister. A: Monster B: Sister C: Minister D: Spinster

ANSWERS

1. Missing person 2. Septuagenarian 3. Moose 4. Divergences 5. threes 6. Peritonitis 7. Killing of sister 8. In My Humble Opinion 9. Sebastomania 10. gets things done 11. Drinking companion 12. Writing table 13. stupid 14. Privilege 15. Excessive pride 16. Laxative 17. Cheat 18. As black as bat 19. To panic 20. Sister

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 July 15, 2015

PEOPLE / Shaping Up With Yoga

COLD STRETCH Army jawans at Siachen glacier

BALANCING ACT United Nations Secretary-General Ban Ki Moon at the UN office in New York

FLAT OUT People perfoming yoga at Times Square in New York on the occasion of the 1st International Yoga Day

LENDING GLAMOR Bollywood actress Shilpa Shetty at Shri Kanteerava Stadium in Bengaluru STRONG FOCUS Prime Minister Narendra Modi on Rajpath, in New Delhi, along with other participants

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

July 15, 2015

RNI No. UPENG/2007/25763

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