India Legal June 15, 2015

NDIA EGAL I L ARUNA SHANBAUG: Justice derailed 40

KEJRIWAL VS JUNG: Stand-off simmers 28

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June 15, 2015

MODI: Miles to Go

The trumped-up euphoria continues but much remains to be done to boost growth and development 22 ALSO PACHAURI CASE: ICC ÀQGV KLP guilty 48

INDIAN RAILWAYS: &$* XQHDUWKV `29,236.77 crore scam 44

NJAC: Stalemate over judges’ appointments persists 10

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

TIME TO WORRY? ow many of us visualized Narendra Modi as India’s prime minister? Till a few years back, the BJP was in shambles, making the Congress even more arrogant. Even political pundits did not foresee Modi’s trail-blazing victory. Suddenly, after he was named the prime ministerial candidate, Modi changed the dynamics of the game with his aggressiveness and strategy. He combined political cunning with a wellcrafted strategy of wooing India’s millions. He rejuvenated a party that was powerless for a decade and racked by dissension and skepticism. He instilled a sense of drive among both leaders and workers and sold India a dream of a brighter future. His energy and aggressiveness made him look like a decisive leader in a hurry, catching the imagination of an impatient electorate. This helped the BJP emerge from the cobwebs of history.

He saw how young India was craving for change and used that as his idiom, promising them exactly what they wanted: Development, economic growth, jobs, industrial resurgence and pride in being Indian.

As India hungered for change, fed up with stagnation and corruption, it swallowed everything he said.

Modi keeps his act going catapulting into the news all the time, though he never interacts with the media. He first inducted a very small cabinet and got talking of minimum government, maximum governance. He then ruled with an iron hand, keeping his ministers and the bureaucracy on a tight leash. He demanded accountability, unleashing a Clean India

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Modi got a lot of media attention but that cannot go on forever. He just has four more years to deliver on his promises of reforms and economic growth.

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June 15, 2015

campaign, wooing Dalits and slowly decimating whatever opposition was there, both within the party and outside.

Anyone who has studied his 13-year reign in Gujarat can easily predict his moves. He works to a plan. He perfected the art of symbolism in Gujarat.

As the CEO of the nation, he used every occasion to show himself as a master communicator. Like addressing school students on Children’s Day, using the radio to reach out to all corners of India, making political speeches abroad that are widely covered in India and making emotive speeches touching women, the elderly and the underprivileged.

He got a lot of media attention but that cannot go on forever. Time flies. Modi just has four more years to deliver on his promises of reforms and economic

growth. The challenges are huge and rhetoric can no longer work. The agrarian sector needs urgent attention. The public education system is shaky. The power situation is bleak. The employment situation is not positive as we were talking of millions of new jobs and they are nowhere on the horizon. There is a desire to centralize governance and control every institution, including the judiciary. Rural distress is peaking. One year may be too short a time to judge him and his government, but it is long enough for the electorate to worry.

Biting realities like reconversions, attacks on churches and Christian institutions, banning beef, censorship of online posts, trying to take control of cultural institutions, conflict between the executive and the judiciary and dwindling interest in areas like education and health have been disturbing indicators. It has taken the sheen out of the first year.

Slogans are great magnets. But they must work.

Make in India was one of them, but with capital flying out of the country, there was little confidence.

Unjust tax demands are creating a new inspector raj, diminishing the initial euphoria. The World Bank has ranked India 142 among the 189 countries as far as the ease of doing business goes. Foreign portfolio investors are wary of the unexpected tax demands.

Modi needs to reduce the numerous political barriers to investment.

Analysts say that once he has the numbers in the Rajya Sabha, he will rule with an iron hand. He may

The new India is not bothered about ghar wapsi, reconversions, girls wearing jeans, love jihad or Bhagwad Gita being made the national book. not care for the freedoms that many of us cherish today. Many fear that he will care little for human rights, protection of minorities or issues like environmental safeguards. What matters will be business interests as he needs to attract investments to spur growth. He has done that in Gujarat; he will do it in Delhi as well. Promises have to be kept. The Clean Ganga and the Swachh Bharat campaigns have been almost forgotten. Just allocating funds is not going to help as action on the ground is poor.

He talks like a statesman, but freely lets his party and affiliates like the Bajrang Dal and the RSS unleash their regressive agenda. This is hurting India’s image abroad. He cannot afford to let narrow agendas dominate as that will backfire on all that he promised before the elections.

Modi and the BJP leadership will have to put their foot down on the divisive agendas of the RSS and different Hindutva affiliates. The new India is not bothered about issues such as ghar wapsi, reconversions, girls wearing jeans or love jihad. The internet has exposed them to a new world. They are not bothered about the Bhagwad Gita being made the national book. Or the lion being considered as the national animal.

As rabble-rousers of the Hindutva brigade run amuck in the countryside with narrow agendas, Modi’s development poll plank seems like a painful anachronism. Modi will find his feet slipping away faster than he thinks if he does not get beyond the well-scripted speeches and foreign trips to woo world leaders.

Modi is going to lose face if he does not show results soon in terms of boosting the Indian economy, creating opportunities for India’s young population and improving the general quality of life. The Indian voter is now more sagacious than ever before and has little patience. Polls after Modi took over demonstrate the writing on the wall. They want much more than rhetoric. NRIs cheering Modi at international meets will not necessarily translate into votes at home.

MIXED BAG (From left) Modi unleashes Swachh Bharat campaign, which was well received; a Hindu priest reconverting Christians in Tamil Nadu

editor@indialegalonline.com INDIA LEGAL June 15, 2015

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JUNE 15, 2015

VOLUME. VIII

ISSUE. 19 LEAD

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

Modi Anniversary: End of euphoria?

Prime Minister Modi came to power with high hopes riding on him. A year later, have development and growth been tackled?

SHANTANU GUHA RAY assess the situation

22

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

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June 15, 2015

POLITICS

David and Goliath

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

Leading the CPM As general secretary of this party, Sitaram Yechury has the onerous task of reviving its falling fortunes. Is he up to the task? SEEMA GUHA reports on the challenges ahead STATES

Forever in exile Kashmiri Pandits are upset with the NDA government’s flip-flop on resettling them in the Valley. A report by AASHA KHOSA

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FOCUS

Euthanasia row

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Aruna Shanbaug’s tragic life and death led to a nation-wide debate on euthanasia. Was keeping her alive in a vegetative state for 42 years worth it?

RAMESH MENON probes INVESTIGATION

Tracking a scam

ALSO

RIGHTS

Insurance woes DEEPA GUPTA recounts how gullible customers are taken for a ride by health insurance companies and agents. Also, a case study by ABHILASHA OJHA

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The NJAC stalemate continues, causing a backlog of vacancies.

By Vinay Rai.................10 Did the Haryana Police mess up the rape case at OP Jindal University?

By Somi Das ...............47 TERI’s Internal Complaints Committee’s scathing attack on RK Pachauri.

By Ramesh Menon.......48

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CAG has unearthed a `29,000-crore scam in the freight department of the Railways.

VISHWAS KUMAR investigates how documents were fudged to loot the country

There’s an increasing demand for a sunset clause for obsolete laws.

By Vishwas Kumar......50

HEALTH

Laws that are no longer relevant today are best consigned to history.

By Hansa Malhotra .....54

58

Quarry and construction workers are exposed to fine dust particles, causing serious ailments such as silicosis. A report by DINESH C SHARMA

PHOTO FEATURE

History on Wheels

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The National Green Tribunal has banned 15-year-old vehicles, including vintage cars. But a visit to a unique museum by SHOBHA JOHN shows why these cars should be preserved, not banned

REGULARS

When the dust settles

Meghalaya High Court Bar Association gets a new e-library.

By India Legal Team ...57 Ineffective implementation of laws has led to rampant abuse of orphans.

By Shailendra Singh....62

Edit........................................................................................4 Ringside......................................................................................8 Quote-Unquote.........................................................................9 Supreme Court..........................................................................14 National Briefs...........................................................................19 Courts....................................................................................... 20 International Briefs.....................................................................80 Wordly-wise..............................................................................81 People....................................................................................... 82

Cover Design: ANTHONY LAWRENCE

INDIA LEGAL June 15, 2015

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Aruna

VERDICT “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

— Jonathan Swift

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June 15, 2015

QUOTE-UNQUOTE

“I have no objections to historians writing Akbar The Great. But why not Pratap The Great?”

— Home Minister Rajnath Singh, supporting the Rajasthan government’s move to bring in Maharana Pratap as a “greater” figure than Akbar in school curriculum

“Am I? Or is he taking me on?”

“Rahul has given a lifeline to a virtually dead Congress....It is back on the wheels now.”

— HRD Minister Smriti Irani, on allegations that she is attacking Rahul Gandhi in his constituency Amethi in Uttar Pradesh, in The Times of India

“We have to neutralize terrorists through terrorists only. Why can’t we do it? We should do it.

Why does my soldier have to do it?”

— Defence Minister Manohar Parrikar, on his approach towards terrorism

“I eat beef, I’m from Arunachal Pradesh, can somebody stop me?”

— MoS Home, Kiren Rijiju, on BJP leader Mukhtar Abbas Naqvi’s statement that those who want to eat beef can go to Pakistan, in The Indian Express

—Yoga guru Ramdev, on Rahul’s recent political aggression, on Aaj Tak

“There is no question of going back, standing still is not an option, so moving forward is the only way.”

— Prime Minister Narendra Modi, at a meeting with Premier Li Keqiang in China

“The Prime Minister’s Office acts like the Queen of England used to, with the Lieutenant Governor as Viceroy.”

— Delhi CM Arvind Kejriwal on the center’s notification that the LG was not duty-bound to seek his advice on bureaucratic postings and transfers in Delhi, on NDTV.com

INDIA LEGAL June 15, 2015

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SUPREME COURT/ National Judicial Appointments Commission

A SERIOUS VACUUM O

N May 12, a Supreme Court five-judge constitution bench deferred the hearing of the National Judicial Appointments Commission (NJAC) case to June 8.

Its interim order said: “As an interim measure, we direct the appointment of additional judges in high courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal.”

The bench had no option but to do so, as there is currently a vacuum in the mechanism for appointing new judges, or confirmation of additional judges in high courts as permanent judges. The notification of the NJAC Act and the 99th Constitution Amendment Act on April 13 had effectively ended the collegium system of appointing judges.

But the new mechanism of appointing judges, which the NJAC Act had envisaged, has not begun to function because of Chief Justice of India (CJI) Justice HL Dattu’s refusal to participate in the selection process to appoint two eminent persons on the sixmember commission. The CJI, two seniormost judges and the Union law minister are the ex-officio members of the NJAC. To understand the interim order, one needs to understand how the current problem of extending the tenures of additional judges first arose. A look at the Memorandum of Procedure carried on the Department of

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June 15, 2015

The stalemate over NJAC is having a deleterious effect on the vacancies of judges and additional judges in many high courts. This shows a serious deficit in the collegium system of appointments

By Vinay Rai

Justice’s website shows that the problem was inherent in the collegium system of appointment, devised by the Supreme Court in the Second case (1993) and the Third Judges (1998) case.

LONG PROCEDURE For appointing judges to the Supreme Court, the outgoing collegium comprised of the CJI, four senior-most judges of the Supreme Court and the successor CJI, if he did not happen to be one of these five. The CJI was also expected to ascertain the views of the senior-most judge in the Supreme Court who hailed from the high court from where the

Anthony Lawrence

The Department of Justice website shows the term of 11 additional judges will expire in May and June 2015. Their tenure will be extended due to the court’s May 12 order. person recommended came from. However, if he did not have any knowledge of the merits and demerits of the recommendee, then the next senior-most judge in the Supreme Court from that high court was consulted.

For the appointment of chief justices of high courts, the collegium consisted of the CJI and two senior-most judges of the Supreme Court.

The CJI was also expected to ascertain the views of the senior-most judge of the Supreme Court who was conversant with the affairs of the high court in which the recommendee was functioning.

For appointment of permanent judges of high courts, an elaborate procedure was followed. When a permanent vacancy was expected to arise in any year in the office of a judge, the chief justice of the high court would as early as possible, but at least six months before the vacancy, communicate to the chief minister of the state his views on the persons to be selected for appointment. The chief justice of the high court was expected to consult two of his senior-most colleagues on the bench regarding the suitability of the names proposed for this purpose.

For appointing an additional judge as a permanent judge, the chief justice of the high court was expected to furnish statistics of month-wise disposal of cases and judgments rendered by the judge concerned, as well as the number of cases reported in the Law Journal duly certified by him. The information would also be furnished regarding the total number of working days, the number of days the additional judge actually attended court and the days he was absent from the court during the period for which the disposal of statistics are sent.

TIMELY APPOINTMENTS The proposal for appointment of a judge of a high court was initiated by the chief INDIA LEGAL June 15, 2015

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SUPREME COURT/ National Judicial Appointments Commission

GUARDING HIS TURF? (Below) Chief Justice of India HL Dattu took a firm stand on NJAC’s formation

justice of the high court. However, if the chief minister desired to recommend the name of any person, he or she could forward the same to the chief justice of the high court. He would then send copies of his proposal to the governor, the CM, the CJI and the Union minister of law, justice and company affairs to expedite consideration.

The governor, as advised by the CM would forward his recommendation to the Union minister of law as early as possible, but not later than six weeks from the date of receipt of the proposal from the chief justice of the high court.

The Union law minister would then forward the recommendations along with other relevant material to the CJI for advice. He would, in consultation with the two seniormost judges of the apex court, form his opinion, after taking into account the views of the chief justice of the high court and judges there as well as the views of those judges in the Supre-me Court who were conversant with the affairs of that high court. The CJI would, in the course of four weeks, send his recommendation to the Union law ministry with consultations recor-ded in writing.

It is this elaborate process of consultation laid down in the Memorandum of Procedure for appointment of apex court and high court judges that has become extinct with the notification of the NJAC. ANXIOUS TIMES The May 12 interim order of the constitution bench, therefore, addresses the anom-

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June 15, 2015

aly which may arise, if the additional judges in high courts are not confirmed as permanent judges before the expiry of their terms.

The additional judges, under Article 224 (1), have a tenure of a maximum of two years. An additional judge may be confirmed as a permanent judge even before the expiry of his term.

As they aspire to be appointed as permanent judges before the expiry of their terms, it is in their interest that they do not suffer any break in their service record by virtue of the current vacuum in the mechanism to appoint judges in the higher judiciary.

Thus, even though the May 12 interim order is inconsistent with Article 224 (1) of the constitution, the Supreme Court has the powers under Article 142 to make such order as is necessary for doing complete justice in any cause or matter pending before it. The order is necessary in order to avoid palpable injustice that might have resulted in the case

of additional judges, whose tenures are about to expire during the course of hearing of the NJAC case before the Supreme Court.

But the order also exposes the serious flaws in the outgoing system which led to this anomaly in the first place.

The Department of Justice website shows that the term of 11 additional judges—three in Gauhati High Court, seven in Bombay High Court and one in Patna High Court— are to expire in May and June 2015, and their tenures will be extended by three months by virtue of the Supreme Court’s May 12 interim order.

The tenures of more additional judges are likely to expire from September 2015, raising the specter of further anomaly if the present stalemate continues. The failure to appoint these additional judges as permanent judges well ahead of completion of their tenures points to a serious deficit in the outgoing system of appointments.

The Supreme Court, of course, is helpless in addressing another crisis which may arise because of the current stalemate, namely, the huge backlog of cases as a result of the number of vacancies.

According to the Department of Justice, there are currently three vacancies in the Supreme Court and 366 vacancies (as per approved strength) out of a total approved strength of 1,017 in the 24 high courts.

The number of vacancies may rise further with the Supreme Court likely to take three more months to deliver its verdict in the NJAC case, and with a few judges retiring in the meantime.

The number of vacancies, however, point to the complete failure of the collegium system of appointment of judges, even though the Memorandum of Procedure followed by the Department of Justice had laid down certain strict deadlines to be met before a vacancy arises. IL

FLAWED SYSTEM (Above left) The collegium system devised by the Supreme Court has led to a number of vacancies in the top judiciary (Above) Union Minister for Law and Justice DV Sadananda Gowda will need to solve the impasse at the earliest

INDIA LEGAL June 15, 2015

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SUPREME COURT

28-yr delay ujarat government’s approval for prosecuting retired director general of police Kuldip Sharma in a physical attack case in 2012 was stayed by the apex court. The court also put a hold on all trial court proceedings on the matter.

Acting on an FIR against Sharma (he was then Kutch SP) for the alleged assault, the trial court in Bhuj had started criminal proceedings against him in September 1984. However, the then state government filed an appeal

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in the Bhuj court in 1987, seeking dismissal of the case as there was no sanction, and got a stay. However, the state government, then under Narendra Modi, made a U-turn and granted sanction in February 2012, and the trial court proceedings started all over again. Sharma challenged the verdict in the Gujarat High Court pleading that the case be discontinued, but his plea was turned down. He then approached the apex court.

Looking into the facts of the case, the court wanted a formal response from the state government on the reasons behind the 28-year delay.

Keep character intact obody can be denied a certificate vouching for good character just because a family member has been involved in a criminal case. The apex court gave this verdict while objecting to a district collector of Basti denying a character certificate to a woman, as her husband was embroiled in criminal cases.

The court pointed out that character certificate of a per-

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son only takes into account his or her behavior, and the criminal background of other family members has no bearing on it. The court also took into account the factor that the woman had no record of any criminal activity whatsoever.

It instructed the district collector to issue the certificate to the woman, who had been seeking justice from the judiciary for the last six years.

No interim relief to Chautala he Supreme Court refused to intervene in the Delhi High Court verdict against Indian National Lok Dal member Ajay Chautala. Chautala had requested for urgent relief from his jail sentence after the high court awarded him 10 years’ imprisonment in the teachers’ recruitment scam case in Haryana. Also serving a 10-yearjail term are his father, former Haryana chief minister Om Prakash Chautala and four others.

The court did not issue a notice to any of the parties for a response, nor struck down the petitions of Chautala outright. It, however, gave him the go-ahead to seek parole on medical grounds. Chautala can do so when the apex court resumes work in July after the summer vacation.

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June 15, 2015

Probe against Ranjit Sinha ll alleged meetings of former CBI chief Ranjit Sinha with people accused in the coal block allocation scam need to be thoroughly investigated, the apex court ruled. Sinha retired as CBI head last December. The court had earlier asked Sinha to keep away from the 2G spectrum probe.

NGO Common Cause alluded to the entry register at Ranjit Sinha’s residence and other documents that were placed before the court. Sinha, on his part, questioned the authenticity of the documents and accused the NGO’s counsel of making false allegations.

The court wanted to find out the veracity of the allegations that Sinha, following these meetings, tried to derail the CBI probe into the scam and save the guilty. It wondered whether such meetings had any subsequent impact on the chargesheets filed and closure report filed by the CBI on the scam.

It also did not take kindly Sinha’s meetings with the accused without being accompanied by a probe officer or a team, and rejected CBI’s plea that any probe against Sinha would severely destroy the agency’s credibility.

The court gave the Central Vigilance Commission the responsibility to decide as to how the probe is to be conducted and asked it to report by July 6.

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Relief for home buyers armers’ hopes of getting enhanced compensation were dashed but the hope of thousands of home buyers in Noida Extension and Greater Noida in the NCR came alive when the Supreme Court freed all land in those areas from any further litigation. The court struck down petitions filed by farmers from 65 villages against land acquisition in Greater Noida and Noida Extension.

The apex court ruled that the Allahabad High Court judgment on land acquisition in 2011 was enough to address the issue of both the farmers and the NOIDA and Greater NOIDA authorities.

The high court had ordered increased compensation and developed land for farmers where land acquisition was valid but also struck down acquisition in other villages in Noida, Greater Noida and Noida Extension.

Taking into account that many farmers had already got the enhanced compensation, the court asked all concerned to accept the high court judgment. The case had cast a pall of uncertainty over more than hundred housing projects.

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INDIA LEGAL June 15, 2015

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SUPREME COURT

Tribunals for corporate cases onsidering that high courts are already overburdened with a huge backlog of criminal and civil cases, and given the need for fast disposal of corporate disputes, the apex court cleared all hurdles for setting up of tribunals which will exclusively deal with such cases.

Members of the tribunals will have turf knowledge needed to deal with complex issues of commercial disputes.

The court approved the provisions of the Companies Act 2013 that enable the setting up of National Company Law Tribunal and the National Company Law Appellate Tribunal. The court also laid down parameters for the formation of a selection committee that will appoint members of these tribunals and for rules that the government must adhere to while appointing technical members.

At the same time, the court made some changes in the 2013 provisions, in keeping with its 2010 verdict from a constitutional bench. The changes were related to the eligibility of technical members and the number of people manning the selection committee.

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Charged for defaming Gandhi aking a grim view of a poem that had put abusive words in the mouth of Mahatma Gandhi and stating that there was a limit to which the freedom of speech and expression could be extended, the apex court upheld the prosecution against the editor of the magazine Bulletin that had published the poem, Gandhi Mala Bhetala (I Met Gandhi) by Vasant Dattatreya Gurjar in 1994. The court refused to pass it off as a “poetic license”.

The printer and publisher of the magazine were let off as they apologized.

The court took into account the viewpoint of the amicus curiae in the case that since abusive words had been put in the mouth of as revered a public figure as Mahatma Gandhi, there was no way to avoid invoking Section 292 of IPC. The offense entails a maximum jail term of five years.

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Kejriwal hauled up ou can’t have it both ways.

That was the message the apex court conveyed to Delhi Chief Minister Arvind Kejriwal as it censured him for his government’s move to slap a criminal case against anyone who brought defamatory charges against him and his ministers. For, it was Kejriwal who had questioned the constitutional validity of criminal defamation enshrined in the IPC in the apex court on the ground that it infringed upon the right to freedom of speech and expression. The court had taken cognizance of his plea. It had also stayed criminal defamation proceedings against him.

The court put a stay on an order issued by the Delhi government on defamation and asked for

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an explanation by July 8 as to why such a contradictory diktat was issued. The AAP government had issued the circular for keeping a close tab on critical media reports which could be taken up for filing criminal defamation charges.

Row over 2G spectrum he Supreme Court rejected the arguments of telecom giants such as Bharti Airtel, Vodafone, Idea Cellular and Reliance Telecom that the center was obliged to extend their 2G spectrum licens-

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es which expired in November 2014. The government had turned down their request.

The telecom companies objected to the government decision, saying the license agreements of 1994-95 clearly stated that they were to be extended by 10 years after expiry, but the government contended that as per the agreement, it was the center’s wish whether to go for extension or not.

The court saw merit in the center’s decision and dismissed the appeals of the telecom companies. A twojudge bench agreed with the center’s contention that the mandate of the executive must be respected.

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NDIA L EGAL I INDIA EGAL AMMA’S VICTORY: The startling verdict

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SUPREME COURT

devices in the All India Pre-Medical Test (AIPMT) in Haryana on May 3. It was hearing a petition that demanded that the test be cancelled.

The court pointed out that the onus lay on the center to ensure that all-India level exams are conducted in a fair manner, and wanted the Haryana Police to conclude the probe in the matter as early as possible and come up with a progress report in the next hearing.

The court felt that although it would be prudent to find out candidates who used unfair means and bring them to book, it would go for re-examination if the police failed to do so.

Curb cheating practices oncerned over the rampant use of mobiles for cheating in exams, the apex court asked the center to use phone jammers in and around exam centers so that any information on question papers is blocked completely. It pointed out that such malpractices act as a damper for students who write exams fairly.

The court expressed its anguish over mobile phones and tailor-made jackets used for concealing SIM cards and Bluetooth

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CVC to be appointed soon

ndia may finally get a central vigilance commissioner and a vigilance commissioner after the apex court recently changed its earlier stand that the government seek its nod before moving ahead with the appointment process of both the functionaries. It has been six months since the posts have remained vacant.

Keeping in mind that the posts needed to be filled up as soon as possible, and convinced with the authenticity of the selection process, the court asked the government to move forward. Applications for the posts, including the short-listed candidates, need to be vetted by a high-powered committee that will have on board the prime minister, the home minister and the leader of the single largest opposition party in the Lok Sabha.

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Publicity, sans pictures ll media advertisements released by the government will contain only pictures of the president, the prime minister and the chief justice of India. This apex court judgment will signal the end of a culture wherein political leaders publicize themselves through pictures, claiming credit for social welfare schemes or

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Another year for Tejpal case greeing to the plea of the Goa trial court judge that it needed more time to conclude the Tarun Tejpal case, the apex court extended its deadline by a year. Tejpal is accused of sexually assaulting a woman colleague in a posh hotel in Goa in November 2013.

The apex court had in January directed the trial court to dispose of the

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case within eight months, while taking a serious note of the lethargic pace of the court proceedings.

Tejpal has been granted bail by the court.

other achievements. The court ruled that creating a personality cult at the cost of the state exchequer was an “antithesis to democracy”.

The fallout of the judgment was that national dailies carried a full-blown letter from the prime minister spelling out his government’s achievements in the past one year. The letter also had Modi’s picture at the top. On the same day, another ad reeling out Jayalalithaa government’s achievements did not carry Amma’s picture.

— Compiled by Prabir Biswas Illustrations: UdayShankar

NATIONAL BRIEFS

Whistleblower Act amended THE Lok Sabha amended the Whistleblower Protection Act, 2011, to provide safeguards against disclosure which may affect the sovereignty and integrity of the country.

Replying to the debate on the Whistleblowers Protection (Amendment) Bill, 2015, Minister of State for Personnel Jitendra Singh said protection of whistleblowers has

been “adequately ensured.”

Any public servant or any other person, including a non-governmental organization, may make such a disclosure to the Central or State Vigilance Commission. Every complaint has to include the identity of the complainant. The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary.

The Bill also penalizes any person who has disclosed the identity of the complainant.

Bill on black money

Joint custody of minors

PARLIAMENT approved the Undisclosed Foreign Income and Assets Bill providing for heavy penalties for stashing away black money in foreign accounts. Moving the Bill, Finance Minister Arun Jaitley said in the Rajya Sabha that this law would, for the first time, levy a tax in India on assets kept abroad. “The bill has no connection with domestic black money,” he said.

“For the first time, unlawful, undisclosed income abroad has been taxed under this law at a tax rate of 30 percent with an additional 30 percent penalty on it,” he added.

A time frame will be provided as a compliance window for declaring and paying penalty.

Failure to meet the timeline will attract an additional penalty of 90 percent on the quantum of black money abroad.

There will be rigorous imprisonment of up to 3-10 years for perpetrators.

CHALLENGING the notion of superiority of one parent over the other, the Law Commission has recommended joint custody of minors to both parents in case of a divorce. The Commission’s recommendations assume significance, as the idea of shared parenting is still new to custody jurisprudence in the country.

“Neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor,” it said in its report submitted to the Law Ministry, adding that wherever possible, courts should now grant joint custody of minors. “This is required to be changed to fulfil the principles of equality enshrined in Article 14 of the constitution,” the law panel said.

Cabinet gives more teeth to Benami Bill THE Union cabinet approved the new Benami Transaction (Prohibition) Bill that is aimed at curbing the generation of domestic black money.

The government had announced in Budget 2015-16 that it was planning a more comprehensive Bill to curb benami transactions. The Benami Transactions (Prohibition) Act was earlier enacted in 1988, but was not effective enough. To replace this, the UPA government had introduced a new Bill in 2011. But it had lapsed with the dissolution of 15th Lok Sabha. The new bill entails one to seven years of imprisonment as against six months to two years mooted in the 2011 Bill.

Amendments in National Litigation Policy THE Modi government is planning to introduce a new National Litigation Policy in order to reduce pendency and slash the volume of intra-government litigation, reports The Economic Times.

This will set strict arbitration requirements

for cases involving two government departments, Law Minister Sadanand Gowda told the newspaper. Around 35 percent of litigation across the country involves government departments appearing against each other.

The new policy will restrain government departments from taking the issue to the court and help them resolving the issue through arbitration.

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COURTS

Lie detector in Pushkar case city court gave the green signal to the Delhi Police to conduct a lie-detector, or polygraph test, on three people in the Sunanda Pushkar murder case.

The approval came after Narain Singh, Shashi Tharoor’s domestic help; Bajrangi, the driver; and Sanjay Dewan, Tharoor’s friend agreed to take the test.

The police sought the permission on the ground that the three were concealing “material facts” related to the case. It also cited the examples of the tests done on other close associates of Tharoor, to make its plea stronger.

The court, however, made it

A A reprimand for St Stephen’s principal t Stephen’s College principal Valson Thampu got an earful from the Delhi High Court on the issue of suspension of a IIIrd-year student and editor of an e-magazine. The court felt that Thampu did not handle the issue properly and his conduct in the entire controversy was “unbecoming” of a college principal.

A philosophy student, Devansh Mehta was suspended from the college by Thampu after an inquiry committee found him guilty of publishing an interview of the principal without his permission and speaking to the media about it. The court had stayed his suspension as well as the report of the inquiry committee in April.

The court pointed out that there was no need for the issue to come up before the judiciary as it could have been sorted out at the college level itself. While extending its earlier stay on Mehta’s suspension till September 17, the court directed the college administration to solve the problem. It also censured Delhi University for taking sides on the issue.

Mehta and other students of the e-magazine were also directed by the court to lend their full support for a cordial settlement by September 17.

However, the cup of woes was not yet over for Thampu. After a few days, he was again pulled up by the Delhi High Court in another instance. An administrative officer, Subha Kumar Dash of the same college, sought contempt of court charges against the principal, alleging that he was forced to function from a storeroom in “deplorable” conditions. The court will take up the matter again on July 7.

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clear that the tests must strictly follow the stipulations laid down by the National Human Rights Commission, like the presence of lawyers of those undergoing the tests and refraining from asking questions not related to the case.

Passport order stayed he December 2014 order of the center revoking the Indian passports of the daughters of Devyani Khobragade was put on hold by the Delhi High Court.

Khobragade is an IFS officer and former deputy consul-general of India in New York.

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The court was responding to a plea from the daughters objecting to the centre’s decision. It ruled that home ministry had no business doing so without serving them a showcause notice, or hearing their side of the story.

The center contended that there can’t be two passports as per law. But the court felt that the center’s stand was not in tune with the provisions of the Passports Act. The home ministry assured the court that the children could travel on their US passports and the government would issue visas on their return to India. The court asked the external affairs and home ministries to respond by October 8.

No relief for Vishwas lthough it did not stay the summons issued against senior AAP leader Kumar Vishwas by the Delhi Commission for Women (DCW), the Delhi Court asked the AAP volunteer who had approached the DCW with a complaint against Kumar to appear in court. It also issued a notice to DCW chairperson Barkha Singh.

The court was hearing a plea by Kumar who objected to the DCW summons on the ground that it had no power to act on the complaint. The volunteer had taken part in Vishwas’s campaign in the Amethi Lok Sabha Constituency in the 2014 elections.

The Commission wanted Kumar to appear before it after the AAP volunteer complained that her family life was in severe crisis as the AAP leader did not publicly refute reports of an affair with her.

The court had earlier asked Kumar’s counsel to make the volunteer a party to the petition.

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Murder charges in Ponty Chadha case onvinced that on the face of it, there’s enough ammunition to slap murder charges against all the accused in the Ponty Chadha shootout case, the Delhi High Court issued orders for doing so.

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Ponty Chadha and his brother, Hardeep Singh, were killed in a shootout at a Chhattarpur farmhouse on the outskirts of Delhi on November 17, 2012.

The accused include former Uttarakhand minorities panel chief SS Namdhari and his PSO, Sachin Tyagi. The trial court had absolved all the accused of murder in the case in January last year.

The high court felt that the trial court had erred in giving Namdhari and Tyagi relief under Exception 4 to Section 300—culpable homicide not amounting to murder— and ruled that there was enough evidence to nail them under murder charges. It also justified that as the other accused were accountable for the duo’s action, they too fell under the ambit of murder charges.

Free to be a Maoist n a significant judgment, the Kerala High Court ruled that it was not a crime to be a Maoist unless the person concerned was engaged in unlawful activities. The court pointed out that freedom of thought and liberty of conscience was an unbreachable right.

The court was hearing a petition of Shyam Balakrishnan who complained that he had been unlawfully taken into custody by the Kerala police merely on the suspicion that he was a Maoist.

He also alleged that the police searched his house, took away his laptop and mobile phone and also subjected him to intense mental and physical pain. He pleaded that his right to personal liberty under Article 21 was infringed upon.

Although the police released him after nine months, the court felt that his freedom of thought and liberty had already been violated.

The court asked the state government to pay the man ` one lakh as compensation and `10,000 as litigation expenses.

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Need for a Lokayukta irtually signaling an SOS on the issue of appointing a Lokayukta by the Delhi government, the Delhi High Court wanted the Kejriwal government to take a call on the matter as soon as possible. The post is up for grabs since November 2013. It asked the center, the Delhi government and Lieutenant-Governor Najeeb Jung to come up with a response by July 24.

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

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LEAD/ Modi Government / Report Card

The Promise of Good Times The last one year has seen flat industrial output and a gloomy property market.

But at the same time, inflation has been tamed and social schemes have had an impressive reach of 19 crore takers. Will the coming year bring back the much-touted euphoria?

By Shantanu Guha Ray 22

June 15, 2015

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F he could double the days in a year to 730, Prime Minister Narendra Modi would have a lot to brandish about on his government’s first anniversary. He could have helped a portion of some 13 million Indians looking for jobs, checked a depreciating rupee, restored confidence of the bourse and helped corporate giants increase their earnings. But that has not happened. His critics are already at his throat for a number of misses, the biggest being the controversial Land Acquisition Act that has had the government in a complex bind.

But Modi’s supporters argue that a year in power is not long enough to evaluate the performance of a new government. Worse, it is difficult in India, mired in countless social and economic issues. “At the most, you can take stock of the government,” remarked economist Bibek Debroy, a key

member of the newly-created Niti Ayog that replaced the Planning Commission.

MIXED RESPONSE Modi and the BJP that swept to power on a presidential-style campaign promising achhe din last May have the opinion polls on their side. Consider the one done by The Times of India, which rates the Modi government as getting up to 77.5 percent. Another poll by Mint said the prime minister had an approval rating of 74 percent, although down eight percentage since last August.

That, in short, means there are enough hopes in India surrounding Modi. On paper, he has tried hard and pushed for some economic fundamentals. Finance Minister Arun

Modi has made his ministers and bureaucrats work hard and ensured his government remained free from scams that had sunk the previous UPA II regime.

Jaitley has taken several economic measures since May 2014 but foreign portfolio investors (FPIs)—once popular as FIIs—have spoilt the first anniversary party ostensibly because they are still unsure about tax liability under the controversial minimum alternate tax (MAT) imposed by the UPA. Pressing their panic sale buttons, FPIs have reduced their risks in the Indian market.

This is not good news for both the PM

RESURGENT MODI (Above) Modi at a recent rally in Mathura to mark one year of his government

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LEAD/ Modi Government / Report Card

Photos: UNI

ACHILLES HEEL? (Above) A protest against the land acquisition bill (Right) Finance Minister Arun Jaitley has taken several economic measures but their impact is yet to be seen

and the FM. Take these numbers. In April alone, FPIs sold net stocks worth $2.3 billion (excluding the $2.6 billion net inflow through the Sun Pharma deal), making India one of the worst markets in the world for investor returns. Around the same time, the Sensex lost nearly 2,200 points because FPIs were still nervous over tax issues. Worse, bills were stuck in parliament because of squabbling between the ruling party and the opposition.

ECONOMIC CONUNDRUM This was not all. There came a report that showed sales and profit of as many as 300 companies, which recorded the slowest growth in the last three years. All complained about tensions in raising capital because of rising bond yields. Industrial production for March also slowed to 2.1 percent against 5 percent in February. With global crude prices hardening and foreign investors selling their investments and taking out dollars from India, it was clear the rupee would give lesser

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returns on greenbacks.

There are other issues worrying the PM and the FM—industrial output is flat, bank credit is languishing and the property market is gloomy. The Land Acquisition Act, which India badly needs to build infrastructure and industry, has become a lightning rod of discontent and the chances of it passing through parliament are very low.

Then, there is the Goods and Services Tax, India’s single biggest tax reform after Independence, which remains embroiled in serious political differences. The act may—eventually—become a law but there are many who

believe it will be a watered-down version.

And this summer, bad weather has led to an unprecedented crisis in farming. The lack of urea availability has made the overall condition bad due to reported cutbacks in social welfare programs.

There are other confusions straddling the Modi government. Consider the case of Modi’s 100 Smart Cities plan which has not offered a clear picture to those in the infrastructure and construction business because most of India’s main cities are urban nightmares. Modi also has not explained his vision of Digital India and how it will work in a nation where elementary mobile telephony remains a mess.

Then, there is Modi’s most ambitious program, Make In India, symbolized by a lion

made of nuts and bolts. The idea is grand but how it will work in a nation of low-skilled people is still not clear to the masses.

NO OVERNIGHT SOLUTIONS HDFC chairman Deepak Parekh, always known to speak his mind, made his disappointment public when he said nothing much has changed on the ground. But there are others who differ.

“The BJP has remained on top of most of India’s problems but the problems are really insurmountable in nature, and there are no overnight, quick-fix solutions. But the PM knows what needs to be done, and he is on the job, not relying—like the previous government—on corrupt ministers,” says Prabir Sen, a top data analyst.

WINNING SOME LOSING SOME (Clockwise from left) The Make in India program needs to be fleshed out; the Yemen evacuation was a success; the Rafale deal with France was a win-win move; the car market showed promise under Modi

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LEAD/ Modi Government / Report Card

their reach of the common man. The Jan Dhan Yojana, Pradhan Mantri Jivan Jyoti Bima Yojana (PMJJBY), Pradhan Mantri Suraksha Bima Yojana (PMSBY) and Atal Pension Yojana schemes have close to 19 crore takers.

Sen said his research showed that multinational CEOs were even more optimistic about India, enthused by IMF projections that India would clock 7.5 percent growth in 2015-16 and overtake China, riding on several economic reforms introduced by the Modi government over the year.

Then, Sen quoted the latest RBI figures to claim that growth in credit may have come down to its lowest ebb in almost two decades, but reforms that had been put in place would soon push both corporate earnings and growth. “Look at the telecom spectrum auctions, credit has picked up marginally.

Foreign brokerages have put their weight behind the Indian markets. The Sensex could hit 33,000 by December or February next,” Sen said.

CONNECT WITH THE MASSES (Top) The Mann Ki Baat initiative showed Modi as a good communicator (Above) Modi faces no competition from the Congress

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Sen argued that the despair, as amply reflected in statements by the opposition parties, was totally misplaced. “And it certainly does not mean all is lost for the PM and his party,” he reiterated.

Sen further pointed out the government’s acceptance of the 14th Finance Commission’s recommendations in the context of devolving more funds to the states was a landmark move. The figure now stands at 42 percent of the total revenue collection, up from the earlier 32 percent.

Some social schemes have had budget cuts, but some have been very impressive in

CONSUMER CONFIDENCE Sen rests his argument by claiming a growing consumer confidence in Modi, reflected in the rise of car and consumer durables sales.

“I am confident that if the investment cycle turns in the next 6-9 months, the euphoria should be back by the time government enters the second anniversary,” added Sen. It means Modi, arguably, still has enough firepower stacked on his side. In reality, he faces virtually no competition from the Congress which remains largely bereft of ideas to fire India’s restless young, who form nearly 67 percent of the voters.

Political analysts feel the Congress under an ailing Sonia Gandhi and her son, Rahul, has still not recovered from last year’s debacle, despite Rahul’s recent efforts to pick up the gauntlet. “These are hop, skip and jump efforts, lacking seriousness,” said Sankar Ray, a veteran political observer.

Modi also has had good luck on his side.

For the record, inflation has been tamed and fiscal deficit contained. The PM has been extremely lucky because his government managed cheap commodity—mainly crude— prices. And then, there are reports that elec-

tricity generation—a bane for almost all governments in India—has touched a record high, thanks to 494 million tons of coal production this summer.

Modi, who works for a little over 17 hours a day, has made his ministers and bureaucrats work hard too and ensured his government remained—till date—free from scams that had sunk the previous UPA II regime.

GOOD COMMUNICATOR Corporate captains now admit corruption at the top—synonymous with the previous scam-tainted Congress regime—had declined dramatically. The PM, unlike his predecessor, is extremely prolific on social media and speaks to the people frequently through a monthly radio address, Mann Ki Baat. In many ways, Modi has proved to India he is a better communicator.

“There is a sense of positivity in the government and those trying to do business know exactly what the government wants,” said Soumya Kalyan Ghosh, the India head of Albright Stonebridge Foundation, a top global advocacy firm.

He added that Modi’s plan to auction mineral rights—he started with the coal auction this year—was his first step to check corruption and foster transparency. “The government raised `2,00,000 crore and the states got their shares, including West Bengal which had little cash to pay salaries to employees,” said Ghosh.

Internationally, India has acquired a face of promise, a face of hope, a face of honesty, all larger than before. The PM has mined the 20 million-strong Indian diaspora and overenergized New Delhi’s foreign policy by courting countries like China, Israel, Australia, Japan and the US. His government earned brownie points by evacuating stranded people in conflict-zones like Yemen and rushing relief to earthquake-ravaged Nepal.

NEW WORLD ORDER Delhi’s diplomatic community saw Modi’s moves as binding South Asia with a focus on China. “He is not too West-heavy; he is pushing for a new world order, which is interesting,” said a New Delhi-based US analyst on conditions of anonymity.

For example, passing of the Bangladesh Land Accord Bill was historic, aimed at transferring enclaves with a clear demarcation of territory. In the defense sphere, Modi’s decision to acquire 36 Rafale fighter jets was a win-win move since the squadron strength of Indian Air Force is already down to 35 against a sanctioned strength of 42.

The PM is also making the right noises.

Consider the one he sent to right-wing Hindutva activists that the government would not tolerate attacks on churches as also unpleasant rants. He may have to keep up that pressure.

After all, India will not wait patiently, endlessly. Probably the prime minister knows that and is trying his best to do more. IL

WORLD AT HIS FEET Modi has energized India’s foreign policy by courting several countries, including the US

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POLITICS/ Delhi Imbroglio

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

By Dilip Bobb

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

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

At one level, it has given Kejriwal the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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POLITICS/ Delhi Imbroglio

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

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

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

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

The battle rages on...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the battle rages, governance suffers.

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

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

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

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

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

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

Kejriwal’s aggressiveness is often unpalatable but that is his inherent style of functioning.

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

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YECHURY: CPM’S

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MAN OF THE MOMENT This brilliant parliamentarian with wide acceptability has the onerous duty of reviving a moribund party which has lost touch with its cadres. Will he succeed?

By Seema Guha

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ITARAM Yechury has taken over as general secretary of the Communist Party of India (Marxist) (CPM) at a time when it is facing an existentialist crisis. It is a do-or-die battle.

The option before the CPM is simple. Change and become relevant or sink forever in the dustbin of history. The Indian Left is still caught up with ideas which fired the world after the Russian Revolution and Mao Zedong’s Long March. The world has changed dramatically since then. India itself has changed much in the last 50 years after the CPM was born in 1964.

But the Left appears not to have taken any cognizance of the massive changes that occurred. Unless Yechury and his comrades see the writing on the wall and transform their party, there is no chance of a Left revival. Is Yechury the man to bring the much-needed change in the party?

STALINIST APPROACH Many old faithfuls see Yechury, 62, as the man of the moment. He is an excellent speaker and a brilliant parliamentarian, as well as a multilingual networker with contacts and acceptability across the political spectrum. Being a pragmatist, he can work with most parties. He does not have the earlier general secretary Prakash Karat’s pathological aversion to the Congress. During Karat’s tenure, the CPM, which had lent outside support to the UPA, had walked out of the coalition over differences in the India-US civil nuclear deal.

In the fall-out over this deal, Karat expelled veteran Communist leader Somnath Chatterjee, the then Speaker of the Lok Sabha. This is the level of intolerance the CPM projects even for a party stalwart like Chatterjee. Stalinist in approach, dissent is not tolerated and there is little innerparty democracy. People compare Yechury with the late

CHANGE OF RED GUARD Sitaram Yechury is perhaps the best bet to salvage the CPM

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INDIA LEGAL June 15, 2015

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POLITICS/ CPM

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MENTAL BLOCKS (L-R) Prakash Karat stubbornly refused to ally with the Congress and sacked the then Lok Sabha Speaker Somnath Chatterjee for disagreeing with him on the Indo-US nuclear deal

general secretary, Harkishan Singh Surjeet, a pragmatic tactician.

The Left has joined hands with the depleted opposition in parliament to stall the NDA government on critical issues of land.

The CPM is now working with all opposition parties in parliament. “Inside parliament, we have said we will unite on all these issues (like the land bill), which is an issue which we think is not in the interests of the country,’’ Yechury said in a recent interview.

LOST GROUND But making its presence felt in parliament is not enough. The party has to be on the ground talking to people, rebuilding step-bystep. Apart from grabbing media attention, there is little the Left can garner from national politics at the moment. It has to begin the difficult task of reorganizing in West Bengal,

“The Left Front lost West Bengal because it wasn’t radical enough....

It compromised with rich and middle peasants.”

—Praful Bidwai, political analyst

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where it is whining about terror tactics of the Trinamool Congress (TMC), exactly what Mamata Banerjee would say about the Left when she was on the losing side. What is surprising is that the Communists, who should have cadres ready to fight back, have grown effete (after 34-years of cushioning by their government).

During more than three decades of uninterrupted rule in West Bengal, the rot had already set in. Communist leaders themselves privately admit that in the early days of the struggle, those who joined the CPM were dedicated and committed to the cause. But as the CPM soon became the establishment, the later entrants simply flocked to it to get the goods of office. Among them were plenty of goons, many of whom have now joined the ranks of the TMC. About 40,000 members have quit the CPM in the state since 2011.

The CPM in Bengal

The CPM in Bengal has never really recovered from the mauling it received at the hands of the Trinamool in the 2011 assembly elections. to stop the Modi wave in the national capital. If the AAP can defeat the BJP in Delhi just months after its stupendous victory in the 2014 general elections, there is hope for the CPM, but it needs to get out of its has never really recovered from the mauling it received at the hands of the Trinamool in the 2011 assembly elections. Shattered then, it now seems paralyzed. Since then, it has been a steady decline in parliamentary numbers. From a healthy 44 in 2004, it came down to 16 in 2009 and 9 in 2014. In Kerala too, it has lost state power. Today, the CPM just rules the tiny state of Tripura.

For the CPM to recover, it must start working first in West Bengal, where the organization still has a base. A new narrative is needed to enthuse cadres and inject fresh blood. Former chief minister Buddhadev Bhattacharya and party supremo Biman Bose have done nothing so far on the ground.

“I have seen no signs of grassroot work by the party. There are many issues they can take up, but the CPM appears completely rudderless at the moment,’’ says Kolkata-based analyst Rajat Roy. “The CPM is still unable to connect with the people or speak their idiom,’’ he adds.

AGEING LEADERSHIP The party membership is also ageing: onehalf of it belongs to the 32-50 years agegroup, 20 percent is under 31 years, while 27 percent is in the 50-70 age group. The CPM now has to ensure that it attracts young people. There is space for alternative political formations with fresh ideas as has been evident with the rise of the AAP. It was able

SLIPPING SUPPORT BASE The TMC under Mamata Banerjee has captured the ground ceded by a moribund CPM in West Bengal

old mould.

From 2004 to 2014, the Left Front pulled much more weight in national politics than its actual strength of 61 seats, thanks to the compulsions of coalition politics. But the situation today is very different.

If the Left has to revive, it has to start in West Bengal. “The Left Front lost West Bengal because it wasn’t radical enough. Its modest land reform stopped at registering/protecting tenant-sharecroppers, and didn’t transfer titles to them. It compromised with rich and middle peasants and failed to organize landless agricultural workers,’’ says analyst Praful Bidwai, who’s book on the Left in India will soon be published. “The CPM deradicalized the trade unions and lost its prime working class cadres. It pioneered panchayati raj, but turned it into a patronage-based system,’’ Bidwai adds.

“A good beginning would be to ask why it lost power in West Bengal, and take a honest self-critical view,’’he says.

In Kerala, the Left is better organized and well-entrenched despite the infighting.

In a country like India, there are many issues that it can take up seriously, but this cannot be done sitting in air-conditioned offices. They have to reach out to the masses.

Journalist Monobina Gupta says: “My personal view is that the CPM cannot change.’’

It is for Sitaram Yechury to prove the cynics wrong. IL INDIA LEGAL June 15, 2015

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STATES/ J&K/ Return of Pandits

FLIP-FLOP ON T KASHMIRIS After holding out a carrot to re-settle Kashmiri Pandits in the Valley, Modi backed out, leading to shattering of dreams and increasing polarization

By Aasha Khosa

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June 15, 2015

WENTY-FIVE years of homelessness can erase the memories of a community’s past and pave way for a generational change in their culture and traditions. But for about three lakh Kashmiri Hindus, who had left their homes to escape violence and targeted killings by Islamic terrorists in the early nineties, the yearning for their land has only grown stronger.

So when the Narendra Modi government recently unveiled its plans to resettle the community in Kashmir even in the face of opposition from separatists, the displaced people felt vindicated. Many believed that the BJP’s strong presence in the center and in J&K, where it shares power with the PDP, would finally see the fruition of their dream

STOKING THE FIRE Kashmiri Pandits protest in the capital in early May demanding that killers of their community be booked

The BJP has always used Kashmir as an issue to further its political interests. However, it lacks empathy for the people of Kashmir and is unable to deal with issues like Pandits’ return. of returning home. No one could have imagined that this ecstasy would be short-lived; the Modi regime backed out from its promise as it told parliament that there was no plan to re-settle Kashmiri pundits in exclusive enclaves in the Valley.

EXCLUSIVE ENCLAVES “Frankly, this is a shocker, coming as it is from the BJP, which, unlike others, has had a definite stand on Kashmir for 65 years,’’ says Sushil Pandit, Delhi-based publisher of Praznath, a quarterly journal on Kashmiri heritage and culture. Pandit says exclusive enclaves are the only way to resettle the community in Kashmir. “These 25 years in pursuit of eking a livelihood have scattered the community all over the globe. A generation has grown up without any sense of attachment to Kashmir and its traditions.” He

believes that unless Kashmiri Hindus are able to live together in special zones, their distinct ethnic and social identity would be at risk of being wiped out.

No doubt, most of the Pandits have done well as their exodus coincided with economic reforms and liberalization in India. But today, when the next generation does not speak Kashmiri and mixed marriages have become a norm, the community is definitely on the verge of losing its distinct identity.

“Twenty years onwards, if the situation does not change, there will be no Kashmiri Pandits,’’ says Rashneek Kher, member, ROOTS, a cultural organization of Kashmiri youth in Delhi.

Kashmiris are a miniscule community of seven lakh people, whose leaders are never tired of likening their plight to the persecution of Jews in Nazi Germany. The INDIA LEGAL June 15, 2015

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STATES/ J&K/ Return of Pandits

GAMES GALORE (Right) Separatist leader Syed Ali Shah Geelani is opposed to resettlement of Pandits in the Valley (Below) Narendra Modi, who entered into a coalition with PDP chief Mufti Mohammad Sayeed, backtracked on his promise to Pandits

comparison may be odd and a clear exaggeration, but the fact is that the community feels ignored and isolated whenever there is a move to address the Kashmir issue.

NOT CONFIDENT Many Kashmiri Muslims feel that the Pandits do not want to return as most of

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them are living better lives than they would have had in their homeland. The Valley also lacks economic opportunities and a safe environment for them to feel confident. In fact, any talk of Pandits’ return has always evoked snide comments and strong reactions from the Valley’s separatists and mainstream leaders. No wonder, after the Modi government’s backtracking from creating exclusive townships for them, separatist leader Syed Ali Shah Geelani celebrated it as “our victory”.

The separatists had compared the proposed Pandit settlements to those of Israelis on the Gaza Strip and threatened to launch a mass agitation against it.

Other than nostalgia, Pandits have no apparent reason to go back. “We are not ready to go back into the same milieu where we face threats again,’’ says Ashok Pandit, member, Censor Board, who flew in from Mumbai to take part in a rally in Delhi by Kashmiri Pandits. He said before the community’s return to Kashmir, the government there needs to book all the killers of Kashmiri Pandits who are roaming free.

The community is also demanding that their exodus from Kashmir be recognized as a result of “genocide” and ethnic cleansing by the Islamic forces in Kashmir—something that, again, is politically loaded and can best be described as jugglery in semantics.

However, the purpose is to involve the state

in the rehabilitation of a tiny minority in the face of an aggressive majority.

POLITICAL TACTICS The BJP, on the other hand, has always used Kashmir as an issue to further its political interests across India. For this reason, its leaders are good at the Kashmir rhetoric that, they believe, helps them consolidate Hindus across India. This is one of the tactics which helped the BJP and Modi come to power. However, the BJP lacks empathy for the people of Kashmir, who are victims of a geopolitical game plan, and are therefore, unable to deal with issues like Pandits’ return in a discerning manner.

The party has no leaders with a vision of Kashmir beyond the Hindutva agenda. For this reason, the BJP, which, otherwise is an equal partner in the Mufti Mohammad-led coalition government, often has to eat humble pie on crucial issues. The PDP often has the last word on key issues like the return of Kashmiri Pandits.

Also, many in the Valley see Kashmiri Pandits playing into the hands of the BJP in demanding their return on their terms. Even former chief minister Omar Abdullah, whose government had constructed hutments for Pandits who had been given government jobs there, opposed the BJPs apparent proposal to have exclusive zones for Hindus.

As for the separatists in Kashmir vis-à-vis Pandits, there is apparently no love lost between them. For them, a Kashmiri Pandit is an irritant to their scheme of things for “Muslim consolidation in Kashmir”.

Geelani is so livid with the talk of Kashmiri Pandits returning that he feels the returnees must be part of the government of India’s plans to undermine the cause of Muslims. They tend to obfuscate this issue by raising that of thousands of political activists who migrated to Pakistan in the wake of an aborted tribal raid.

However, official data shows that there are some 3,500 Kashmiri Pandits in the Valley today, a number that does not bother the separatists much.

So far, the narrative on Kashmiri Pandits’ return has been about putting the onus on the governments. “The Kashmiri Pandit narrative is clearly meant to corner the governments in Delhi and Kashmir to own responsibility for not addressing the circumstances that led to the exodus of Kashmiri Pandits—the community does not want to fight it out like moderate Muslims are doing in their own way,” says a senior Hurriyat leader on condition of anonymity.

CREATIVE HUB Veer Munshi, a Delhi-based artist of Kashmiri origin, has proposed to the government that it set up a creative hub in Kashmir and invite thinkers, writers, artists to set up their studios. “We do not want land for free,” he quips. Munshi says since creativity had suffered in Kashmir during the years of insurgency, a new beginning could be made with this venture.

On the other hand, Sushil Pandit says that Kashmiri Muslims should not feel threatened by their presence in Kashmir. “An enclave for us would lead to enterprises, as the community has professionals of all caliber and this would help create jobs for others too.”

Once again, the return of Kashmiri Pandits is mired in high-pitched rhetoric.

But this time, those yearning to go back are stunned by the Modi government’s biggest flip-flop on Kashmir. IL

CREATIVE IMPETUS (Left) Artist Veer Munshi feels reintegration can be aided through art activities

“Twenty-five years in pursuit of eking a livelihood have scattered the Kashmiri Pandits all over the globe. A generation has grown up without any sense of attachment to Kashmir and its traditions.”

—Sushil Pandit, Delhi-based publisher of Praznath, a quarterly journal

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FOCUS/ Aruna Shanbaug

JUSTICE DERAILED

Aruna’s molester was convicted for assault and robbery and not rape, helping him walk free after a seven-year sentence.

The punishment he got did not match the brutality of his crime

By Ramesh Menon

W

HEN she went about her work as a vivacious and energetic nurse in King Edward Memorial Hospital in Mumbai, Aruna Shanbaug would have never imagined that she would trigger a legal and ethical debate about euthanasia in India. The inexplicable saga of her tragic life hit the headlines last fortnight as she passed away. She had been in a coma for 42 painful years. As she battled pneumonia, nurses who had lovingly tended to her all these years, suspected

Law on euthanasia IN India, abetment to suicide (Section 306 IPC) and attempt to suicide (Section 309) are both criminal offences. This is in contrast to many countries such as the US where attempt to suicide is not a crime.

The Constitution Bench of the Supreme Court in the Gian Kaur vs State

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her end was near as they wheeled the fragile 66-year-old into the ICU. Aruna slipped into a brain-dead vegetative state on November 27, 1973, after sweeper Sohanlal Bhartha Walmiki in the same hospital sodomized her and threw a dog chain around her neck to silence her screams.

The resulting asphyxiation cut off oxygen supply to her brain, leading to coma. She was found in a pool of blood the next day by another cleaner at the hospital. He stole some of her belongings before fleeing.

Like thousands of middle-class girls

of Punjab, 1996(2) SCC 648, held that both euthanasia and assisted suicide are not lawful in India. The court held that the right to life under Article 21 of the constitution does not include the right to die. It observed that euthanasia could be made lawful only by legislation. That decision overruled a two-judge Bench decision of the apex court in the P Rathinam vs Union of India, 1994 (3) SCC 394.

In the Aruna Shanbaug case, with regard to attempt to suicide, the court observed: “We are of the opinion that although Section 309 has been held to be constitutionally valid in Gian Kaur’s

case, the time has come when it should be deleted by parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.”

The court held: “...there is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in a persistent vegetative state or who is otherwise incompetent to take a decision in this connec-

END TO AN ORDEAL Aruna Shanbaug, who spent 42 years comatose Pradeep Saini

tion…. this Hon’ble Court lays down the law in this connection which will continue to be the law until parliament makes a law on the subject.

A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend.

It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

Even if a decision is taken by the near

relatives or doctors or next friend to withdraw life support, such a decision requires approval from the high court concerned.”

But in Common Cause vs the Union of India order dated February 25, 2014, three years after the judgment in the Aruna Shanbaug case, the three-judge bench disagreed with the observation and interpretation made in the Aruna Shanbaug case, which upholds the validity of passive euthanasia. The Bench again referred to the Gian Kaur case. In that case, the subject matter of reference before the Constitution Bench was the

interpretation of Article 21 relating to the constitutional validity of Sections 306 and 309, wherein, it was held that “right to life” under Article 21 does not include “right to die”. While affirming the above view, the Bench also observed that “right to live with dignity” includes “right to die with dignity”. However, this still did not conclude if euthanasia be active or passive. The only judgment in this regard is Aruna Shanbaug, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same.

—Shailendra Singh

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FOCUS/ Aruna Shanbaug

PERVERTED PSYCHE Shiv Kumar Yadav, accused in the Uber rape case in December 2014

in India, Aruna also had dreams of building a career and contributing to her family income. That is why she moved from Haldipur, a small coastal village, to Mumbai. But in those few minutes after she was violated, it was all over.

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Medical mercy Author Pinky Virani talks about the suffering of Aruna Shanbaug ARUNA SHANBAUG died on November 27, 1973, in the very place where she worked— sodomized, choked with a dogchain and comatose. Her death certificate, though, will say she died in May 2015. What of the time in between?

I am quite certain this is what Hell must feel like. And those who do not agree may like to practise the following for just a month. Locked in a room on a bed without any movement and frequently no catheter to catch your body wastes. No sunlight. No fresh air. No medical interventions by municipal doctors, which means no consistently administered old drugs, never mind new medicines which have become available as palliative care for patients in persistent vegetative states.

It was left to nurses and ayahs to unstintingly do what they are best at.

And yes, this pain-wracked and traumatized woman was also left blind, dumb and largely deaf. Not Hell? Not what my poor Aruna was put through every day, every night in that one room from 1973 to 2015?

And yet, this very woman, in the last years of her hellish life, gave India

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the gift of a landmark law, Passive Euthanasia Law. The Supreme Court laid down this law in 2011 and in 2014, the government endorsed it.

Aruna left this gift for all Indians in her condition so that they need not suffer the way she did.

Tragically, she need not have. The very law she brought in was applicable to her too. What should have been done, as per internationally prescribed standards, was to taper off the liquid feed given to her, slow down the medicines and over a period of 15-20 days, allow the patient to ease into a final rest. In Aruna’s case, the death certificate will likely state that she “died of natural causes”. This, too, can be the quality of medical mercy.

(The writer had filed a petition in 2009 which eventually led to the delivery of the passive euthanasia judgement)

SOCIAL REJECTION Hoping to keep the news of the rape under wraps, a senior official of KEM Hospital instructed that details should not be divulged as she would be socially rejected. Besides, it would hamper her marriage to a doctor she had recently been engaged to. The marriage was just a month away. The police registered a case of robbery as rape was not mentioned.

Soon, they hunted down Walmiki.

He was convicted for assault and robbery and was awarded a seven-year sentence. He was not convicted for rape, sexual molestation and unnatural sex, which would have attracted at least 10 years. The state also did not contest the judgment or ask for the punishment to be made more severe. In 1980, Walmiki walked free after his sentence.

Today, no one knows where he is. Some reports said that he got a job in a Delhi hospital. There is an increasing demand in India that names and photos of rapists should be put up on websites so that future employers will be alerted. (See box) There are so many narratives in this tragic story which expose the hypocrisy that we all tolerate and encourage. Here was a story that stirred a valid legal debate and aroused the conscience of the country. Here was a case which profoundly went to shape whatever laws on euthanasia India ever had.

END MISERY Author and journalist Pinki Virani, who closely followed the tragedy, wrote a touching biography of Aruna as she found herself emotionally involved in the saga of her life.

In 2011, she filed a petition in the Supreme Court pleading that Aruna’s misery would come to an end if the hospital was ordered to stop force-feeding her and allowed her to die peacefully. She filed this when Aruna was 60 and had been in a coma for three decades.

Delivering a 110-page judgment, Justices

Name and shame law AFTER the rape and murder of Megan Kanka (left), a seven-yearold girl by her neighbor, Jesse Timmendequas (right), in the US in 1994, there was a public outcry.

Investigators discovered that Timmendequas had had two previous convictions for sexually assaulting young girls. In fact, he had pleaded guilty of sexually assaulting a five-year-old girl earlier. He was awarded a suspended sentence but after failing to go for counseling, he was sent for nine months to Middlesex Adult Correctional Center.

In the second case, when he pleaded guilty of assaulting a seven-year-old girl, he was sentenced to prison for six years.

A therapist who was dealing with him had predicted that he would eventually go to commit another sex crime. But no one listened. It resulted in the rape and murder of Megan. This time, the court sentenced him to death.

This tragic case led to the formation of Megan’s Law, an informal name for law enforcement authorities to make information available to the public regarding registered sex offenders. The offender’s name, photo, address, incarceration date, and nature of crime are put up in the public domain. It can be carried on websites, published in newspapers, distributed in pamphlets or spread through other means.

Megan’s Law is known as the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 1994. It requires persons convicted of sex crimes against children to notify local law enforcement of any change of address or employment after release from prison or psychiatric facility. The notification requirement may be imposed for a fixed period of time. It can be 10 years or more.

Will Aruna’s death nudge the government to introduce similar “name and shame” laws in India? It is time it did.

Hoping to keep the news of the rape under wraps, a senior official of KEM Hospital instructed that details should not be divulged. The police registered a case of robbery as rape was not mentioned.

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Markandey Katju and Gyan Sudha Misra ruled that in cases of irreversible illness, passive euthanasia could be allowed after a thorough medical examination. Passive euthanasia allows a patient to die by limiting medical intervention or withdrawing artificial life support. Active euthanasia on the other hand, would mean administering lethal substances to quickly end life.

The judges found little evidence of Aruna coming out of the persistent vegetative state that she was in and said that she would in all probability not come out of it. They left it to the hospital to decide if they should withdraw her life support.

The hospital staff did not take kindly to

Virani’s plea, saying that they were looking after her and would continue to do so diligently. One of the narratives in this story is their devotion to work all these years. There were almost 10 nurses looking after her everyday. Virani had argued that there was no proof of Aruna’s awareness of anything that happened around her.

It was only the 2013 Criminal Law (Amendment) Act that finally broadened the definition of rape in India. It included oral, anal and urethral penetration. Earlier, it was limited to peno-vaginal penetration. This came about after the public outcry against the brutal gang rape and torture of a paramedical intern in Delhi in 2012. IL

ABERRANT BEHAVIOUR (Left) An accused in the case of a nun’s rape in Ranaghat, West Bengal, in March

INDIA LEGAL June 15, 2015

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INVESTIGATION/ CAG Report/ Railways

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NDIA’S largest public sector employer, the Indian Railways, has been tainted with a scam of `29,236.77 crore which took place between 2008 and 2013. The Comptroller and Auditor General (CAG) has unearthed a freight scam of this humongous amount, thanks to the collusion between senior railway officials and big iron ore manufacturers. The railways earns around 65 percent revenue from freight services.

The scamsters fudged documents to transport iron ore under the category of domestic consumption even when it was being exported. Incidentally, the transportation charges for both are different, with the domestic consumption one being three times less than the other category.

WORST MARGINS This loss to the exchequer is shocking because the Indian Railways has one of the worst oper-

Freight fudging A CAG audit has unearthed a scam of `29,236.77 crore in freight movement.

Is the railways being derailed?

By Vishwas Kumar 44

June 15, 2015

ating margins of `100:94. This means that for every `100 spent, the railways earns just `6.

In a bid to overcome this revenue gap, it borrows heavily from the public exchequer each year. In the current financial year, the finance ministry has given the railways a budgetary support of `40,000 crore.

As per the audit report, the Railways follows a dual freight policy. Freight charge for a commodity is based on Goods Classification, wherein a class is assigned to each item. All commodities in that class are charged the same rate.

In May 2008, the railways introduced Dual Freight Policy (DFP). This was done to lower the cost of transportation of iron ore for domestic producers and to keep freight charges for exported iron ore in sync with the rising international market prices to earn proportionate earnings.

Under this policy, transportation of iron ore was categorized into two classes on the

basis of end use. They are: Domestic Consumption and Other Than Domestic Consumption. The former was assigned a lower Class 4 and the latter, Class 5. The above classes cover various types of iron ore— lumps, fines, calibrated form, pellets, etc.

MAJOR COMMODITY Iron ore is an important commodity that is transported by the railways, both in terms of volume of traffic and freight earnings. It is transported for domestic consumption and also for non-domestic consumption such as for sale/export. The railways is a major transporter of iron ore for domestic consumption and its share from 2007-2008 as well as 201112 was between 57 percent and 79 percent, respectively.

Manufacturers of iron and steel, cement and pellets are the authorized customers eligible for booking iron ore at domestic rates as per the rate circulars (RCs), which fix rates of

class/categories of goods transported.

CAG’s audit observed that the internal control for implementation of DFP had intrinsic deficiencies and some of the provisions were not incorporated/enforced with due diligence.

Some of the deficiencies noticed were: The Railway Board had prescribed six documents for submission by transporters at the time of registration of each indent (requisition of goods). However, the purpose and significance of their submission was not made clear. These documents, apart from proving the bonafide credentials of the consignee (transporter booking consignments) as manufacturers of iron and steel, etc, could also be utilized for ascertaining the manufacturing capacity of the plant (manufacturing units/factory) and actual utilization of iron ore for domestic purposes. However, the Railway Board had not issued any guidelines to make use of the eight mandatory documents including affidavit and forwarding note submitted by the consignee for verification of the end use of the iron ore.

Excise Returns (ERs) are important documents so far as the end use of material is concerned. The manufacturers are required to submit seven types of ERs to the excise department in a year. Out of these, three ERs (i.e. ER 1, ER 4 and ER 6) are very much relevant/useful in the effective implementation of DFP. ER 1, a monthly return, indicates production of iron and steel and removal of goods from manufacturing units. ER 4, an annual return, depicts stock position, including purchase and consumption of raw materials and ER 6 depicts monthly stock position, including receipt and consumption of raw materials. The actual use of iron ore at manufacturing units and removal of goods from there could be known from these ERs. However, there were no instructions of the

CAG’s audit observed that the internal control for implementing Dual Freight Policy had intrinsic deficiencies and some of the provisions were not included or enforced with due diligence.

INDIA LEGAL June 15, 2015

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INVESTIGATION/ CAG Report/ Railways

The loss to the exchequer is shocking because the Railways has one of the worst operating margins of `100:94. For every `100 spent, it earns just `6.

TIME FOR ACTION Railway Minister Suresh Prabhu must plug the loopholes in freight services

Railway Board to compare the quantum of iron ore transported by the railways with the monthly/yearly consumption of iron ore for domestic use as reflected in the ERs. CRUCIAL LAPSES “Although the requirement of mandatory submission of six documents by consignees to avail transport of iron ore at concessional ‘domestic consumption rates’ was meant to check the end use of the iron ore transported and also assessing the veracity of the information on the basis of which concessional rates were claimed and availed, the railways did not use the documents to verify the end use and allowed the manufacturers to transport iron ore at ‘domestic consumption’ rates. The Railways did not prescribe for initial scrutiny of documents submitted by consignee and such failed to ensure their submission of valid documents during the period May 2008 to September 2013 resulting in freight evasion of `12,722.65 crore,” the audit alleged. It blamed Railway Board members for deliberate lapse in the implementation of DFP. Hinting at a collusion between Railway Board officials and iron and steel manufacturers, the audit alleged: “In addition, submission of inaccurate/misleading or false documents by consignee (manufacturers) attracted a penalty of `11,418.16 crore (as per DFP) that could have been levied on various defaulting companies. Though the Railway Board recognized provision of a limit of 25 percent for the generation of iron ore fines, out of total quan-

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tity of iron ore booked and transported by rail at freight charged at domestic consumption rate but it did not consider these suggestions while framing the Rate Circular 36 of May 2009. Non-implementation of this provision on residual/left over quantity of iron ore helped manufacturers to remove large scale iron ore for export or sale.” (Since railways has monopoly in transporting iron ores, any punitive action on their part against manufacturers after detecting violation in DFP would have stopped them from exporting their goods.)

“Railways also did not assess the reasonability of removal of iron ore by manufacturers from companies’ premises and did not fix the permissible limit of removal wherever possible. Railways also failed in noting the details of removal given in the ERs of these consignees to trace out the cases where iron ore transported by rail at ‘domestic consumption’ rate was not put to domestic use.

Auditors assessed a penalty of `5095.97 crore in respect of 61 consignees as a result of short reporting of iron ore in ERs. It means that iron ore was diverted before entering the factory premises and thus not put for ‘domestic use’”. Slamming the Railway Board for poor supervision, the audit concluded: “Railways did not lay down adequate internal controls checks and balances for effective implementation of the DFP. There were no orders of the Railway Board for exercising special checks on the transactions relating to ‘Iron ore’ by CIs (Commercial Inspectors) and TIAs (Travelling Inspectors of Accounts). The monitoring mechanism laid down in the form of Appreciation (Evaluation) Reports did not provide for suggestions for improvement in the policy and remedial action on irregularities and deficiencies pointed out by various supervising authorities. These reports were not submitted by most of Zonal Railways.

Adequate training was not provided for proper implementation of the policy. Effective enforcement of provisions laid down in the rate circulars was not ensured.”

One hopes that railway minister Suresh Prabhu will take note of the scathing audit findings and plug the loopholes in railway freight services, so that it becomes a moneyspinner for the beleaguered railways. IL

CRIME/ Gang Rape/Jindal University

Criminal Collusion?

Is the Haryana Police deliberately weakening the case of a victim reportedly gang-raped by three students of Jindal University?

By Somi Das Anthony Lawrence

I

N a shocking incident, a 20-year-old MBA student of OP Jindal University in Sonepat was allegedly gang-raped

by Hardik Shikri, a final-year law student and two of his friends from the same college. All three are behind bars.

Though the case was probed by the Haryana Police, the victim has filed a petition in the Supreme Court seeking its transfer to the CBI, alleging that the Haryana Police had failed to conduct a fair investigation.

Shikri, a resident of Sonepat, established physical intimacy with the victim after making promises of a steady relationship in 2013.

The petition alleges that soon he started sending his nude photographs to the victim and also insisted that she share her explicit pictures with him.“The Petitioner in her naivety and without realizing the demonic and criminal intent sent a couple of explicit pictures to him which became the basis of this long-drawn ordeal of sexual harassment, rape, criminal intimidation, assault and other serious offences,” the petition adds.

He then forced her to establish sexual relations with two of his friends, Vikas Garg and Karan Chabra, from the same college.

Shikri also created a WhatsApp group where he shared the nude pictures with his friends.

The victim went through this harrowing experience for almost two years. She was taken to different resorts in Sonepat and Chandigarh where she was forced to drink alcohol before being raped.

Finally, on April 11, with her parent’s sup-

port, she complained to the college authorities. Shikri’s laptop and mobile were confiscated immediately. The three accused were suspended from the college and arrested by the Haryana Police on charges of gang rape and criminal conspiracy.

However, the victim filed a petition in the Supreme Court seeking the transfer of the case to the CBI, alleging that the police had failed to conduct a fair investigation and was on the side of the accused.

S

peaking to India Legal, Devadatt Kamat, who is representing the victim along with Indira Jaising, said: “They have been booked for criminal conspiracy and gang rape but we are asking for more charges. The investigation is completely flawed because despite obscene pictures being exchanged through electronic device, relevant sections of the IT Act have not been invoked.”

Political pressure to withdraw the case is another reason for demanding a CBI probe.

The victim alleges that due to the “political contacts” of the accused, the SHO who filed the FIR in the case was transfered the very next day. The petition also alleges that Shikri was given access to his electronic devices after the victim had narrated her ordeal to the police. The apex court has sought a response from the Haryana Police and also from the CBI on whether the case is befitting enough to be taken over by the investigating agency. IL INDIA LEGAL June 15, 2015

47

PROBE/ Pachauri Case

ICC SLAMS PACHAURI In a scathing indictment, the Internal Complaints Committee of TERI has recommended disciplinary action against the director-general. It also wants him to pay compensation to the victim

By Ramesh Menon

I

T is now not going to be easy for RK Pachauri, the director-general of The Energy and Resources Institute (TERI) to get away in a sexual harassment case. The Internal Complaints Committee (ICC) of TERI has validated the compliant of a 29-year-old female employee who alleged that he had sexually harassed her. Reliable sources told India Legal that the ICC found that repeated attempts by Pachauri to foster personal relationships with employees was not only a conflict of interest and misuse of designation, it also amounted to violation of the prevention of sexual harassment policy.

After a detailed review of messages that Pachauri sent to this employee, the ICC found that when she expressed discomfort over his

48

June 15, 2015

behavior, he had retaliated by taking away her work and assigning it to other colleagues. She had also said that she had lost out on career prospects due to the constant harassment.

It is learnt that the ICC examined the impact of the incident on the complainant’s health because of the harassment and found that it had seriously impacted her. It said that she suffered from several medical complications that affected her liver and induced weakness and extreme fatigue, as diagnosed by her doctor. She had also been diagnosed with depression and there were medical tests indicating it. It appeared to the ICC that she would need further sessions with her counselor.

On February 18, the complainant had filed a report charging Pachauri of sexually harassing her. As he filed for anticipatory bail, it was granted by the court on the condition that he co-operates with the police and does not enter the TERI office. Obviously, because the court did not want him to intimidate the employees or the ICC which was to submit its report. But the source indicated that the ICC was under pressure from Pachauri and other seniors in TERI while it was

investigating and compiling the report.

The source said that ICC recommended disciplinary action against Pachauri and wanted him to pay monetary compensation to the victim. It also suggested that the amount be deducted from his salary for the mental trauma, pain, suffering and emotional distress caused to her.

Pachauri, then, filed another plea this fortnight asking the Delhi sessions court to permit him to attend office. He said that he had suffered emotional and financial loss being out of the office. The court observed that the right to livelihood was a fundamental right and could not be suspended for an indefinite period. The court turned down his plea but asked the police to expedite the probe and complete it by July 17.

Additional Sessions Judge Raj Kumar Tripathi said: “Considering the nature of allegations leveled against the accused and totality of the facts and circumstances of this case, this court postpones passing of any order on the application of accused till the next date of hearing.”

Indira Jaising, former additional solicitor general of India, told India Legal that this case amazed her as it had not moved as fast as it should and that the Governing Council (GC) of TERI which has eminent personalities had not asked Pachauri to step down as director-general of TERI and as chancellor of

TERI’s complaints committee found that the female colleague suffered from liver problems, jaundice, typhoid and depression bouts due to Pachauri’s conduct. the TERI University so that the probe could be carried out impartially. However, Deepak Parekh, chairman of HDFC who is on the GC, told India Legal that the counsel had not seen the ICC report yet and had asked Leena Srivastava, the acting director-general of TERI, to examine the findings of the report.

He said that Pachauri was being tried by the media and the GC could not go by what it said and would wait for the court verdict to take action against Pachauri.

As the ICC report vindicated the charges leveled against Pachauri, he moved the Delhi High Court to stop publication of its findings.

Pachauri had maintained that Section 16 of the Sexual Harassment Act prohibited publication by the media. A division bench headed

by Justice Badar Durrez Ahmed remarked: “This is a first of its kind case.” The bench also stated that such an interpretation would be decided for the first time. When the victim has got a finding in her favor showing that she had been harassed, justice is secured, the bench added refusing to pass any order at that moment on Pachauri’s plea. IL

CAUGHT IN THE DRAGNET? (Facing page) Director-General TERI, RK Pachauri (Left) HDFC Chairman Deepak Parekh (Above) The TERI office in New Delhi

INDIA LEGAL June 15, 2015

49

LEGAL EYE/ Obsolete Laws

ON THE CHOPPING BLOCK

With parliament passing the Repealing and Amending Bill, 2015, 36 outdated laws will soon be removed, improving business environment

By Vishwas Kumar Anthony Lawrence

F

ORMER Disinvestment Minister Arun Shourie may be unhappy with Prime Minister Narendra Modi over a host of issues, but he should be pleased with the government for vigorously easing out outdated laws. Recently, parliament passed the Repealing and Amending Bill, 2015, which will pave the way for removing these laws. It was Shourie who had announced in parliament 16 years back that the government should scrap around

50

June 15, 2015

1,300 outdated laws, many a legacy of British times. But the then government of Atal Bihari Vajpayee could only delete 357 due to lack of strength in parliament.

However, with Modi allocating high priority to this issue, the passage of the above bill within a year of coming to power will help in scrapping 36 redundant acts.

LONG ROAD AHEAD Highlighting the significance of the bill, lawyer and Lok Sabha MP Pinaki Misra said during a debate in parliament: “This is a very

important piece of legislation. In 1998, the Jain Commission had recommended that out of 2,500 central laws, more than 1,300 needed repealing. We are looking at 36 Acts in this particular piece of legislation. This does not go far enough.

“We have to realize that a major deterrent to investment is India’s inability to enforce contracts, thanks to this myriad maze of laws and also an ill-equipped judiciary. There is a World Bank report, ‘Doing Business-2014’, which points out that it can take up to 1,400 days in India to obtain a legal remedy for non-enforcement. The cost can run up to 40 percent of the claim in India. Parliament has legislated with great alacrity. The enforcement of laws and the lack of it have also been done with a great deal of alacrity,” he said.

Union Law Minister DV Sadananda Gowda, who piloted the bill, also informed the House that the government was examining the provision of sunset clause (a provision in a bill that gives it an expiry date once it is passed into law) for automatic removal of some laws. The government would soon take corrective measures to improve dispute resolutions mechanism, he said.

“I do concede that delay in disposal of disputes has created much confusion among people. Even in the arbitration cases, people prefer to file them outside India. Now, this government has taken an initiative to bring

some stringent amendments to the Arbitration Act. This will be placed before parliament in the next session. The Law Commission has given a report for establishment of Commercial Benches in high courts.

The bill in this regard will be brought before parliament in the next session so that all these things will help in the ease of doing business in India,” informed Gowda.

He further disclosed that nearly 1,741 redundant laws were in existence. “We have already prepared a draft bill for repealing nearly 741 Appropriation Acts (part of annual Finance Bills). Another Bill is already there for 79 repealing and amending Acts before the Rajya Sabha. That is also being taken up immediately. Certainly, the Statute Book will be cleared so that there should not be any confusion in the process of disposing of cases,” said Gowda.

“As far as the constitution requirement of resolution under Article 252 (This article deals with the power of parliament to legislate for two or more states by consent and adoption of such legislation by any other state) is concerned, it cannot be waived off by parliament without

OLD DEMAND (L-R) Former Disinvestment Minister Arun Shourie had called for repealing of 1,300 obsolete laws

Retired Justice AP Shah (left), chairman of the 20th Law Commission, says that one of the main reasons for repealing obsolete laws was the call of modern times.

INDIA LEGAL June 15, 2015

51

LEGAL EYE/ Obsolete Laws

Laws should have a sunset clause Ritwika Sharma, research fellow, Vidhi Centre for Legal Policy, who worked with the Law Commission to prepare a report on obsolete laws, tells VISHWAS KUMAR that the need of the hour is not many laws but better implementation How do obsolete laws cause trouble for citizens?

Obsolete laws which are not in tune with contemporary times can cause hardships for citizens. The Police (Incitement to Disaffection) Act, 1922, and the Children (Pledging of Labor) Act, 1933, are two instances of such laws. The first one was used last year by the Andhra Pradesh government to charge the resident editor of the Hyderabad edition of The Hindu. Even though the Act is open to possible challenge under Article 19 (1) (a) of the constitution, its provisions were used with much impunity and invoked after the newspaper reported that the then DGP had visited a godman in Hyderabad.

The Children (Pledging of Labor) Act, 1933, essentially has the effect of permitting child labor. This is because an “agreement to pledge the labor of a child”, defined under Section 2 of the Act, is not punishable under the Act if such agreement is “made without detriment to a child, and not made in consideration of any benefit other than reasonable wages to be paid for the child’s services”. There is ample scope to

EVERY PROBLEM HAS A SOLUTION (Top right) Lok Sabha MP Pinaki Misra worries that old laws make India business-unfriendly (Below) Union Law Minister DV Sadananda Gowda says a sunset clause for laws might be the answer

52

June 15, 2015

construe “without detriment to a child” and “reasonable wages”.

What is the need of the hour?

What’s needed is not a huge number of laws, but better implementation. A vast number of laws on a single subject creates confusion. For instance, older criminal laws penalizing a particular offense might carry lesser quantum of penalties, than new ones which may carry harsher and more stringent penalties. The offending party might try to take advantage of the older law to escape with lesser punishment.

Should there be a mandatory period of review of all laws?

Yes, laws should be enacted with a “sunset clause”. This would obviate the need for compulsory weeding out of laws.

Any other suggestion?

All laws in force in India should be put up on the law ministry’s website and their texts should be readily available. While a list of all centrally enacted laws exists on the website, the same is not true for state laws.

seeking proper redressal. So, at this stage, that could not be done,” he said, while expressing the technical difficulty in immediately introducing the sunset clause.

LAW COMMISSION Retired Justice AP Shah, chairman of the 20th Law Commission, in his report on outdated laws quoted the recommendation made in the Commission’s 96th report.

It said: “Every legislature is expected to undertake what may be called the periodical

spring-clearing of the corpus of its Statute Law in order that deadwood may be removed and citizens may be spared the inconvenience of taking notice of laws which have ceased to bear any relevance to current conditions. This process in itself assumes still greater importance in modern times when Statue Law is growing in bulk and magnitude....”

Justice Shah said that one of the main reasons identified by the 96th report for repealing obsolete laws was the call of modern times. Incidentally, this report was presented in 1984, and history has seen very fast changes since then. “Thus, the force of the call for repeals of obsolete laws and need for modernization gets reinforced,” he said in his recommendation.

The Law Commission has chosen three criteria to determine uselessness of all existing laws. First, the subject matter of the law has to be outdated and the law is no longer needed to govern that subject; second, the purpose of the law has been fulfilled and third, there is a newer law or regulation governing the same subject matter.

So it is out with the old. IL

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LEGAL EYE/ Redundant Laws

Let us junk these laws Is selling merchandise of this late singer a crime? Shockingly, it is and there are other outdated laws which infringe on basic human rights

By Hansa Malhotra and Geetika Mantri EVEN as India brims over with a million possibilities and multiple voices, it is hampered by numerous redundant laws. Our constitution is an impressive, colossal document but many provisions still institutionalize regressive mindsets.

Take the widely celebrated Supreme Court judgment which took down Section 66 A of the Information Technology Act. It authorized the police to make arrests over “offensive”, “menacing” or inappropriate social media posts. There are other archaic and stifling laws and the Modi government has been deliberating over whether to scrap them.

Here are five laws that violate basic human rights: 54

June 15, 2015

Young Persons Harmful Publications Act, 1956 Never heard of this? Had he been alive, the legendary Jamaican singer Bob Marley would have been surprised to play a part here. In March 2014, the Kerala government clamped down on shopkeepers selling his T-shirts.

Reason? The government found an association between him and youngsters consuming drugs in Kerala.

Using the archaic Young Persons Harmful Publications Act, 1956, the government charged vendors selling

Bob Marley merchandise, including T-shirts, key chains and lockets for encouraging youngsters to use drugs like marijuana. The law allows for a prevention of the “dissemination of certain publications harmful to young persons” and anything that “tends to corrupt a young person”.

Pictures and stories which depict “violence or cruelty” or “incidents of a repulsive or horrible nature” can be gagged.

President of the Centre for Civil Society Path J Shah laments the existence of the law and says: “Words such as repulsive and horrible contained in the definition of harmful publication are vague and subject to arbitrary interpretation.” India is already reeling under the burden of laws that penalize “seditious speech”, giving unprecedented power to the political framework. Was such a law then necessary?

Who defines what is “harmful” is subjective and can be conveniently misused for political vendetta. With growing concerns about Hindu fundamentalism, this law can be used to silence any publication that may be offending the ideology of the powerful, not the youngsters.

Section 377 of the Indian Penal Code (IPC) Harsh is a 27-year-old bank accountant in Delhi. He fears telling anybody that he is gay. “I don’t think anybody would understand.

With the court against us, even if I get harassed, I can’t tell. I will be branded a criminal,” he says.

His story is a grim reminder that any deviance from the neatly structured social order of procreation will fall into the dark labyrinth of “sinful” deeds.

The constitution guarantees freedom and equality for all, regardless of class, gender, caste, religion or sexual orientation. Despite that, Section 377 of the IPC makes “carnal intercourse against the order of nature”

illegal. Although it does not directly mention homosexuality, the law can be interpreted to criminalize homosexuality. Criminalizing private sexual acts between consenting adults is a gross violation of the rights mentioned in the constitution.

Section 377 has been used to harass, blackmail and extort money from sexual minorities like eunuchs, transgenders and sex workers, who do not have legal protection against it. Also, who defines what is “unnatural?” If the concept of sex is purely for procreation, then even birth control should be “against the order of nature”. The demand for repealing this law is not for

Section 375 of the IPC Over 104 countries recognize marital rape as a criminal offence. However, Section 375 of the IPC specifically makes an exception for “sexual intercourse by a man with his own wife, the wife not being under 15 years of

UNI

any special rights, but for equal ones. “We do not want any extraordinary privileges, but we merely want to enjoy the simple pleasures of loving and making a family,” says Harsh.

age” while defining “rape”. An extensive report by Justice JS Verma reviewing women’s security laws in the aftermath of the 2012 Jyoti Singh gang rape, reiterated the need to legally acknowledge marital rape as an offence against women. With a huge public discourse emerging on

the issue, all hopes were pinned on the Criminal Law Amendment Bill 2012 expecting the “exception” to become rule. Despite the resulting amendment, marital rape remained excluded from the purview of “rape”.

M Venkaiah Naidu, the then chairperson of the standing committee on home affairs, justified this decision on the ground that such recognition carried the potential of “destroying the institution of marriage”. Rape is a violation of a woman, whether she is married or not. Does marriage allow a man to force himself on a woman?

The repressive, patriarchal idea that a wife is a husband’s property has been legitimized with this exception.

What about the right to equality and liberty enshrined in the constitution?

Yes, the repeal of the law can be misused. However, that cannot be a defense to continue with it.

INDIA LEGAL June 15, 2015

55

LEGAL EYE/ Redundant Laws

Section 497 and 498 of the IPC “Only a man can be proceeded against and punished for the offense of adultery,” said a Supreme Court bench to Gummadi Sailaja in 2012 in the W Kalyani vs the State case. This was after the high court failed to charge Kalyani, a woman who allegedly had an extramarital affair with Sailaja’s husband. The mere fact that Kalyani was a woman made her “completely immune to the charge of adultery”, it added.

Section 497 embodies an archaic definition of adultery as it only holds the man guilty for having sexual intercourse with the wife of another man “without the consent or connivance of that man”. This

implies that sexual relations between a married man and an unmarried woman, widow or divorcee is not a crime. Section 498 also describes punishment for a man who “takes or entices away” another man’s wife. By its very definition, these acts perpetrate the patriarchal view that a woman’s identity after marriage is reduced to that of her husband’s.

“The scope of this section needs to be enlarged to make it gender neutral,” says Divyakant Lahoti, a Supreme Court advocate. One may argue that it benefits women by shielding them from the legal repercussions of adultery.

However, it ultimately harms the interests of the woman who is a victim of adultery because the accused is also a woman.

Armed Forces Special Powers Act (AFSPA), 1958 On July 15, 2004, an absurd scene unfolded before Kangla Fort in Imphal. Twelve women stood nude, holding a huge banner that read: “Indian Army rape us.” This was not an act of provocation, but of protest against the alleged rape and murder of Thangjam Manorama. Suspected to be a member of the separatist

56

June 15, 2015

People’s Liberation Army, she was arrested from her home in Imphal by personnel of the Assam Rifles four days before.

Her corpse was found later with semen traces on her clothes, suggesting rape.

Even after a decade, the alleged perpetrators of that crime remain unprosecuted and

untried as they were operating under AFSPA. It became an act in 1958 and allowed the arrest, search, detention or use of force against anyone on grounds of “reasonable suspicion” of unlawful activity in a “disturbed area”.

Further, it allows immunity to the armed forces from any “prosecution, suit or other legal proceedings” for their actions unless sanctioned by the center.

The number of cases where AFSPA has been misused has risen steadily over the years.

Appeals to review it have gone in vain. AFSPA is not only a direct impingement on the fundamental rights of citizens, it strips aggrieved parties of a platform to seek justice.

When people look to the law for justice, it is obvious that such unfair and redundant ones do not serve the purpose. IL

COURT/ Meghalaya

E-library for Bar Association

NEW BEGINNING (Left) Meghalaya Chief Minister Dr Mukul M Sangma inaugurating the e-library; (Below) Meghalaya Governor V Shanmuganthan (right) with Chief Justice of Meghalaya High Court Uma Nath Singh after being sworn in

In a move that will help the state judiciary, an e-library was inaugurated on May 14

By India Legal Team

O

N May 14, Meghalaya Chief Minister Dr Mukul M Sangma inaugurated an e-library at the Shillong High Court Bar Association. It was done in the presence of Chief Justice Uma Nath Singh, Justice TNK Singh and Justice SR Sen. In his inaugural address, Dr Sangma said the e-library would provide access to a wealth of knowledge to members of the Bar Association and hoped it would lead to greater participation of members in the judiciary. He added that it was necessary for democracy to strike a balance and for that a strong judicial system was needed.

He said the government would re-strategize investing in and giving support to this important pillar of democracy and said it was a challenge for it to place members of the Bar Association in all district headquarters of the state. He said the e-library would be of great help to legislators too, who, as policy-makers need to refer to various rulings of the Supreme Court and the High Court.

In his welcome address, PJ Kynta, presi-

dent, Shillong High Court Bar Association, said that the e-library would allow members of the Bar Association and law students to read law reports and case studies from all over the world.

Other who spoke at the function were Chief Justice Uma Nath Singh, General KS Kynjing and advocate Pradeep K Rai. ************

New Meghalaya governor On May 12, V Shanmuganathan was swornin as the governor of Meghalaya by Chief Justice of the Meghalaya High Court Uma Nath Singh. This was after the state has gone without a permanent governor for over four months. IL INDIA LEGAL June 15, 2015

57

HEALTH/ Silicosis

Anil Shakya

Stony silence

Quarry workers are often victims of silicosis, but companies and governments have lived in denial of it. however, laws have come to the rescue of some of these workers

By Dinesh C Sharma 58

June 15, 2015

S

hiny five-star hotels, glitzy malls, shopping arcades and even temples like Akshardham are seen as symbols of modern India and development. What unites them is the extensive use of construction material like black granite, marble and red sandstone, which are favorite materials of builders. The construction boom and the increasing demand for different kinds of stones is benefiting the stone mining industry in different states.

But there is also a negative side to this industry, with serious health consequences.

While appreciating a red sandstone structure or walking on a granite floor, most of us don’t appreciate the toil of workers who brought it from deep mines. Every stage in the process—mining, drilling, blasting, digging, hammering, cutting, polishing and grinding—exposes miners and workers to several hazards. Most of these activities produce silica dust (chemically called silicone dioxide), which is inhaled by workers if they are not wearing protective masks. These fine particles of dust are lifted into the air near mines and even those not employed there— most often children of workers living nearby—are also exposed to it. This acts like slow poison for workers directly exposed to it, as long-term exposure can make workers prone to several respiratory diseases—pulmonary tuberculosis, chronic airflow limitation and lung cancer—and kidney problems. The worst among them is silicosis, which leads to slow degradation of lung tissues and ultimately, death.

an occupational disease among miners.

In Rajasthan, where red sandstone and marble mining is widespread, workers identified as silicosis patients are being given financial compensation by the government.

This has become possible due to implementation of a long-forgotten mining legislation —the Mines Act 1952 and the Workmen Compensation Act 1923 and rules notified under these two laws from time to time.

Under these laws, silicosis is a notifiable disease and a detailed process for compensation, including establishment of pneumoconiosis boards (medical boards) to certify patients, has been laid out. But all these decades, none of these provisions were used.

“The first Pneumoconiosis Medical Board was set up in the state in 1965—it did not become functional until the Rajasthan State Human Rights Commission intervened in 2013. At our instance, seven such boards have now been set up in all government medical colleges and the state government plans to have these boards in all districts,” reveals

THE GRIND BEHIND GRANDEUR (Facing page, top) The imposing Akshardham Temple in Delhi made liberal use of granite and sandstone (Facing page bottom and below) Dusty quarries and construction sites expose workers to serious health hazards

Most mining activities produce silica dust, which is inhaled by workers if they are not wearing protective masks. This acts like slow poison, leading to respiratory diseases.

INSENSITIVE APPROACH For long, Indian companies and government departments have lived in denial about silicosis. Workers know that they have some problem in breathing and many die prematurely, but they continue to work in mines as they have no other vocation to pursue. Lack of awareness among local doctors often leads to misdiagnosis because its symptoms are very similar to that of tuberculosis. In the past, small-scale surveys of workers did point to the presence of this disease, but there was no follow-up. Only in recent years has activism by the civil society and human rights agencies led to the recognition of silicosis as INDIA LEGAL June 15, 2015

59

HEALTH/ Silicosis

For long, government departments have lived in denial about silicosis. Lack of awareness among local doctors leads to wrong diagnosis because its symptoms are similar to that of tuberculosis.

Dr MK Devarajan, a member of the Rajasthan Human Rights Commission.

A SMALL BEGINNING These boards help in the screening of workers, diagnosis of disease and certification of silicosis patients, which enables them to get a compensation of `1 lakh from the government. Grassroots organizations like Jodhpur-based Gramin Vikas Vigyan Samiti (Gravis) are engaged in workers’ education and motivating them to undergo tests, including chest X-ray at the nearest medical college. “The problem is that these boards function only on certain days of the month and workers find it difficult to go during those days and also for follow-up. Still, we have been able to convince many of them to get tested for silicosis. The procedure for getting compensation is so tardy that many workers succumb to the disease by that time. Still, we have been able to help many workers get compensation,” says Vinod Kumar Tyagi, an official of Gravis. Legal help cells have also been established in villages in the mining belt around Jodhpur.

The first step is identification of workers

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with silicosis so that they get compensation.

“Compensation money only helps to some extent, because workers certified as silicosis patients have no work as there are no rehabilitation schemes. There is no medical help available for them; they simply die,” says Somaram Jaypal, secretary of Khan Mazdoor Mahasangh, a trade union.

Mining companies need to take up preventive measures like promoting the use of protective masks, wet drilling and offering regular medical check-ups. “The biggest hurdle is the attitude of mine owners who are just not bothered about safety requirements.

They make workers pour abundant water while using gang saw machines (to cut stone) as diamond cutters will get spoiled otherwise, but they do not attach similar value to the lives of their workers,” adds Devarajan.

LAW TO THEIR RESCUE The following laws pertaining to mine workers are meant to provide them the necessary safeguards: Section 25 of Mines ACT, 1952

This section says that mine management is

required to submit notice of occurrence of notified diseases. It also states that: 1. Whenever any person employed in a mine contracts any disease which is notified by the central government as a disease connected with mining operations, the owner, agent or manager of the mine shall send notice thereof to the chief inspector.

2. If any medical practitioner attends on a person who is or has been employed in a mine and who is or is believed by the medical practitioner to be suffering from any disease notified under sub-section (1), the medical practitioner shall send a report in writing to the chief inspector.

The following diseases have been notified as diseases connected with mining operations: silicosis, pneumoconiosis, manganese poisoning (nervous type), asbestosis and cancer of lung, stomach, pleura and peritoneum.

Rule 29 B, Mines Rules, 1955

It provides for: (a) Initial medical examination of every person to be employed in the mine. (b) Periodical medical examination, once every five years of persons employed in the mines. (c) In case of persons engaged in the process of mining or milling of asbestos, periodical medical examination shall be done at least once in every 12 months and every such examination shall include all the tests except the X-ray examination, which shall be carried out once in every three years. (d) The periodical medical examination or the X-ray examination or both, shall be conducted at more frequent intervals if the examining authority deems it necessary to confirm a suspected case of a dust related disease.

Section 3 of Employer’s Liability

for Compensation, Workmen Compensation ACT, 1923 If a workman contracts any disease specified as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months in any employment specified, contracts any disease specified

therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.

The central government had also formulated Model Draft Rules—Workmen’s Compensation (Occupational Diseases) Rules, 1961. However these rules were ratified only by a few states.

These rules state that diagnosis of pneumoconiosis shall be carried out with all necessary technical guarantees. Proof of the degree of development of the pathological or anatomical changes in the respiratory and cardiac systems shall be furnished by the radiographic record and other laboratory records, which shall be accompanied by the report of a full clinical examination, including a report of the industrial history of the person concerned, the record of all occupations in which he has been employed, the nature of the harmful dusts to which he was exposed and the duration of such exposure.

For entitlement to compensation, silicosis and coal miners’ pneumoconiosis shall fulfill radiological and clinical conditions stated in these rules.

It’s obvious that the law is the last bastion of the needy. IL

WAITING FOR SUCCOR (Facing page) A group of silicosis patients in Rajasthan (Above) A signboard announcing free medical check-up to detect silicosis among those exposed to dust particles

INDIA LEGAL June 15, 2015

61

SPOTLIGHT/ Orphanages

Illustration: Amitava Sen

Though laws and regulations have been in place to protect orphans, few are implemented, leaving them vulnerable to abuse, violence and torture

By Shailendra Singh

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NOBODY’S CHILD June 15, 2015

T

here is nobody more vulnerable than an orphan. He is prone to exploitation, abuse, neglect and rape. He is often shelterless and is trafficked and tortured. While the official definition of an orphan is a child aged zero to 17 years whose mother, father, or both have died, there are also social orphans, whose one or both parents may be alive but who are unable to perform parental duties because of illness or acute poverty among other reasons.

These orphans, more than other children, are seen as vulnerable. A vulnerable child is defined as being under 18 years and at a high risk of lacking adequate care and protection. Accordingly, all children are vulnerable by nature, but some more so. So who are the children who are most vulnerable? These include: those orphaned by the death

of one or both parents; abandoned by parents; living in extreme poverty; living with a disability; affected by armed conflicts; abused by parents or care-givers; malnourished due to extreme poverty; HIV-positive and those who are marginalized and stigmatized.

All vulnerable children have one common denominator: they have no reliable social safety networks. And in the Indian context, these children are widely exploited in safety homes and orphanages, many of which are unregistered and violate law and procedure.

TRAFFICKING OF CHILDREN The Hindu, on October 13, 2014, mentions advocate Aparna Bhatt informing the Supreme Court about the state of orphanages in Palakkad, Kerala, where children were exploited. This was made in response to a case where 156 children were rescued while being illegally transported to an orphanage in Kerala and which was later handed over by the government to the very same institution.

The Supreme Court asked the Kerala government to answer this charge.

These children were part of a group of 455 children, aged between 4 and 14, brought from Bihar and Jharkhand to some orphanages in Kerala. They were rescued in Palakkad by the railway police and district officials on May 24, 2014. All the children were found to be travelling with no tickets or travelling documents.

Bhatt describes the Palakkad incident as part of the larger mushrooming of unauthorized orphanages and childcare centers in Kerala. She claims these institutions provide cover to “trafficking” of children from impoverished parts of Jharkhand, Bihar and West Bengal. The fact that Kerala did not make registration of orphanages compulsory under the Juvenile Justice Act left the State Child Rights Protection Commission with no control over them.

In its affidavit, the state government said the rescue operation in Palakkad was its own initiative. The children were provided care and protection by the state. It said social instruments such as Kudumbasree, Childline, etc, worked with authorities to prevent child exploitation and abuse in the state. The affidavit said the government had all the infor-

Laws such as the Juvenile Justice Act have not been implemented. Despite Supreme Court reminders, many states and UTs have yet not constituted Juvenile Boards. mation about children from other states.

The National Commission for Protection of Child Rights too gave a clean chit to the state. It said orphanages admit children from other states only after permission of the state government and the Orphanage Control Board, set up under the Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960. It said the Kerala State Commission for Protection of Child Rights has control over orphanages and institutions in the state.

While this case wasn’t as bad as the others, instances of abuse have come to light from orphanages across the country. In Arya Anathalaya in New Delhi, it was found that girls and boys were sexually abused. In an orphanage in Kozhikode, Kerala, a minor

ALL FOR THAT SMILE What is required is a safe and comforting atmosphere in orphanages

Anil Shakya

INDIA LEGAL June 15, 2015

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SPOTLIGHT/ Orphanages

“There is nothing more traumatic for a child than to see a parent die…. Children without proper adult care are more likely to be abused and exploited.”

—A UNICEF report on orphan children girl was forced to marry a much older man from the UAE. After a few weeks, she was abandoned.

SAFE CHILDHOOD, SECURE FUTURE (Below and right) An enabling environment in shelter homes will foster capable individuals

CALLOUS STATES In the Exploitation of Children in Orphanages in the State of Tamil Nadu vs the Union of India case of 2007, Justices Madan Lokur and Uday Umesh Lalit took note of the urgency to implement the Integrated Child Protection Scheme. The apex court, in its ruling in 2013, criticized the lackadaisical attitude of the government in not implementing the above mentioned scheme. It further held that it had become necessary to re-emphasize that it was the bounden duty of the States under Articles 21, 21A, 23, 24, 45 and 51A (k) to create and maintain a protective and healthy environment in which children could bloom and, subsequently, mature. The court

Photos: UNI

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said: “We have been pained to notice the utterly callous attitude adopted by the States as well as the Union Territories. We, therefore, have no option at this stage but to issue some further mandatory directions to ensure that the exploitation of the children in all spheres of life is brought to an end with utmost expedition. (The) Court has taken notice of the matter on the basis of the letter written way back in 2007 as part of judicial activism.” The court also said that states and union territories must realize that they have to operate under the constitution.

A UNICEF report on orphan children says: “There is nothing more traumatic for a child than to see a parent die. Added to this tragedy is the loss of adult guidance and protection. Children without proper adult care are more likely to be abused and exploited.

Many orphans and vulnerable children slip further into poverty once the family’s main breadwinner stops working or dies. Losing a parent or caregiver often means losing access to social grants, education and healthcare.”

Anil Shakya

Though UNICEF had addressed the concerns of orphans, their abuse and subjugation by community participation and the help of respective governments, it is inadequate. Take for instance the horrific rape of a 19-year-old girl by a Korean running an orphanage in Bangalore. The girl reportedly said: “I stayed in the orphanage from the age of 3 till I turned 19. He started abusing me when I was 9 years old and even gave us our baths. He later began abusing another girl. Whenever she wasn’t around, he wanted me. We had no choice but to do what he asked us to do.” The girl alleged that she was not the only victim of sexual assault in the orphanage.

NO IMPLEMENTATION These incidents suggest that in spite of all regulations and laws laid down for child protection, everything remains on paper. Laws such as the Juvenile Justice Act and other child protection legislations have not been implemented. It has been found that in spite of repeated directions from the Supreme Court, many states and union territories have yet not constituted Juvenile Boards. This casual approach is not helping movements such as the Bachpan Bachao Andolan.

The government should constitute vigilance teams to check malpractices in orphanages and safety homes. Compulsory registration should be done and various directions of the Supreme Court should be implemented.

Steps should be taken to increase the adoption of such children. Section 40 of the Juvenile Justice Act must be implemented.

This section says that the rehabilitation and social reintegration of a child should begin during his time in the children’s home or special home. But as the family is the best option to provide care and protection for children, adoption is the first alternative for orphans, abandoned and surrendered children. Sufficient funds should be released for the proper upkeep of government safety homes and private ones should be kept under constant observation. The National Commission for Protection of Child Rights should be given more powers to redress these concerns.

Article 39 (f ) provides that children should be given opportunities and facilities to develop in a healthy manner and there should be conditions for freedom and dignity. It further enjoins that children and youth be protected from exploitation and moral and material abandonment. Article 45 makes provision for free and compulsory education for children and mandates that facilities and opportunities for higher educational be provided to them. Social justice and economic empowerment are firmly held as fundamental rights of every citizen. Thus, it is the duty of the state to protect the rights of the child even in orphanages. A child is the future human resource of the nation. Imagine what potential he holds if treated well. IL

HELP THEM OVERCOME LOSS Playtime at an orphanage

INDIA LEGAL June 15, 2015

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RIGHTS/ Health Insurance

Policy Paralysis D

Lalit Khitoliya

Patients are often taken for a ride by ignorant and unethical Third Party Administrators, and hospitals with different rate cards.

Will this harassment end?

By Deepa Gupta 66

June 15, 2015

EEPALI Jain’s mother was suffering from cancer. She was under corporate cover with an insurance company, which footed all her bills in the first year of treatment. However, in the second year, it refused to pay up. Despite repeated mails to the Third Party Administrator (TPA), it refused to relent and strangely, wanted Deepali’s mother to prove that she was being treated for cancer.

“All this, when her tests always included the cancer marker!” says an exasperated Deepali.

So what was the problem? The doctor on the panel of the insurance company did not think those tests were necessary. Was he an oncologist? No, he was a general physician. A shocked Deepali says: “I was fighting incompetent people with no knowledge whatsoever of policies despite being part of the insurance system.”

After more than a year of back-and-forth mails, queries and explanations, Deepali finally managed to get a small part of the claim. But the mental torture she went through was enough to put her off insurance; she has now stopped sending bills for claim.

Welcome to the world of TPAs. Meant to ease matters for patients, they are the vital link between insurance companies, patients and hospitals, but do precisely the opposite. They often delay payments to patients, make them wait endlessly and then, fork out far less than

what the hospital bills came up to.

No wonder, Anurag Goel, a consumer, says that health insurance in India is a fraud. “When my 82-year-old father was in hospital for more than a week, the concerned TPA did not move his papers, nor did it send it to the hospital in time. They promise one sum on paper and give out peanuts on the other. It’s a sham,” he says.

Insurance companies have engaged TPAs to cater to the needs of their customers. At the time of claiming a reimbursement for health bills, the consumer lodges his claim with TPAs, who, in turn, process it as per policy terms.

Thereafter, approval for payment is sought from the insurance company. Once the insurer concurs with the recommendation, claims are settled or rejected. However, what is happening is that TPAs work in the interests of insurance companies, so that they either don’t pay or pay as little as possible.

H

owever, Sandhya Singh, another consumer, decided to take on these companies. When a particular health insurance company refused to foot the bills, she filed a case in the consumer court. “Win I did, though it took ten years,” she says. “But the satisfaction of bringing these crooks to book and making them pay much more (along with interest) than what they otherwise would have paid, was great.” Even in court, the insurance company kept up its errant behavior by postponing hearings, not appearing in court, etc. But Sandhya was adamant. “Someone needed to tell them that they can’t have their way and cheat people,” she says.

While insurance companies have been causing harm to their own reputation by their hostile attitude when it comes to paying claims, TPAs, too, are hand-in-glove with hospitals to rip off patients, they allege. An article in Forbes in 2010 said that “TPAs need to be more efficient to justify their existence”.

While their modus operandi is to ask query

after query in a genuine case, they often do not detect fake submissions. Satish Mohan, another consumer, says: “An employee of my organization got himself admitted in hospital when pain from a kidney stone resurfaced. He stayed put there for two days for getting all his tests done without having to pay a single penny. Surgery did not happen either. The TPA easily passed his claim, whereas my genuine one was stuck.”

However, such cases could be few in future.

Sanjay Seth, executive vice president, IFFCO Tokio General Insurance Company Ltd, Gurgaon, says that presently there are dual schemes for handling insurance claims—in-house TPAs in offices and outsourced TPAs. This enables “us to give a choice to our customers.

They can choose a TPA they are more comfortable with so that there is no trouble at the time of reimbursing a claim,” he says. Universal Sompo General Insurance Company, Mumbai, too, has a dual model. Dr Amitoj Singh, head, health vertical, says: “One TPA deals with several insurance companies.

We felt that our customers were being neglected. So an in-house TPA worked best for us.”

Many insurance companies find the inhouse model easier as it works in their favor and prevents them from getting a bad name. Singh worked in a TPA for seven years and reveals that TPAs can’t have medical specialists on board due to the affordability factor. And it is for this reason that it cannot interfere with a medical claim and is bound by the prescription of a

LENDING CLARITY (L-R) Dr Suman Singh Tilak, Suresh Sugathan and Dr Amitoj Singh

TPAs connect insurance companies, patients and hospitals. They delay payments and release far less than the hospital bills.

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RIGHTS/ Health Insurance

BREACH OF FAITH People go for costly treatments based on medical insurance

Ombudsman to the rescue

WHAT recourse does a consumer take in case his mediclaim is rejected or not paid up fully? Amit Kumar Maiham (above), advocate, SAV Law Associates, Delhi, who has dealt with many health insurance litigation cases, says: “The need for Mediclaim insurance is growing at a rapid pace in modern times with stressful lifestyles and so are claims and their rejections.”

However, in cases where the consumer feels aggrieved over short payment or total rejection of the claim, the legal remedies available include: Approach an insurance ombudsman Approach consumer forums Proceedings before the ombudsman are conducted in accordance with the Redressal of Public Grievance Rules and before consumer forums as per the Consumer Protection Act, 1986. “Both remedies are available to consumers at a negligible cost. In case the adjudicating authorities find that the claim has not been settled in accordance with the policy, insurance companies are directed to make the deficit payment or meet full claims with costs,” explains Maiham. In any case, it is the insurance company which is liable; the TPA is only acting on behalf of the insurance company.

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specialist, says Singh.

Seth says that while insurance companies come under the Insurance Regulatory and Development Authority (IRDA) and work with specific guidelines, there is no regulatory body that checks doctors and hospitals. “The entire fabric has gone dirty.

Hospitals have different rate charts for customers with health insurance policies.”

S

ingh, too, views the entire TPA-hospital nexus as “ethically wrong” and says that strict measures need to be put in for the benefit of the common man. Suresh Sugathan, head, health insurance, Bajaj Allianz General Insurance, Pune, says: “Having an in-house TPA ensures customer satisfaction and brings standardization in decision-making so that public expectations are addressed more effectively. The guiding principle of an in-house claims management team is fair judgment and empathy.”

However, TPAs have a different story to tell.

Says Dr Suman Singh Tilak, VP, Paramount Healthcare Services, Delhi, says: “A majority of the complaints registered at various agencies, be it consumer forums or the IRDA, pertain to retail policies (individual policies like Mediclaim meant for a single person). These are different from corporate policies, which are tailor-made with a wider coverage than retail policies. They account for only about 5 percent of complaints as compared to 95 percent from

retail policies.”

Asked why hospitals always have different rate charts for people covered under insurance in the retail and corporate sectors, Gopal Verma, chairman and managing director of E-Meditek Group of Companies, Gurgaon, says: “It is an industry issue. Hospitals are not regulated by insurers, UNI TPAs or insurance regulators. Only volume-based discounts or special package rates can be negotiated, which is why there are GIPSA (General Insurance Public Sector Association), PPN (Preferred Provider Network) or GIPSAapproved rates based on the category of the hospital and city. This could have resulted in double pricing practice by hospitals.”

The way out, he says, is through product evolution. Here, benefits are linked to the sum insured and the class of city/hospitals. Disparity in pricing is a major cause of concern. He states that the last health guidelines from IRDA tried to address some of these issues but the regulator did not intervene in the pricing of the insurance product and commercial arrangements between the insurer, TPA and the hospital. With there being no health regulator, hospitals are out of the preview of the insurance regulator.

Verma says that current TPA service charges of less than four percent average (including group and retail policies) are inadequate to deploy a high number of specialists on a fulltime basis. “A better TPA evaluation model and methodology will encourage insurers to reward them in a much better way, so that they can afford better professionals, infrastructure and technology for higher satisfaction among policy holders,” says Verma.

It will indeed take some time for this logjam to be cleared. IL — Names of consumers have been changed to protect identity

RIGHTS/ Health Insurance/Case Study

Infertility, a bad word

The wordings in your mediclaim form is crucial for acceptance or rejection

By Abhilasha Ojha

T

WO months ago, on a Delhi winter morning, I nearly collapsed. I was in my office, waiting to meet a deadline, when I felt like a speeding truck had run over my abdomen, crushing me with its weight and leading to unbearable pain. I cried, tears rolling down my cheeks, and clutched my abdomen with my hands and prayed... for death so that I could be out of this misery. I reached home, abandoning my work, popped a pain-killer, took a hot water bag and slept off for four hours. By evening, I was better.

An ultrasound showed mammoth fibroids, endometriotic cysts in both ovaries and a uterus that needed to be checked thoroughly.

My gynecologist said that I would require three surgeries i.e. hysteroscopy, myomectomy and laparoscopy, which was anyway the first step to check the damage in my body. The amount to be shelled out: `1.5 lakh.

I flashed a smile when my doctor told me the amount. I said,“I have mediclaim.” But he said: “Don’t bank on it. This procedure is covered under ‘infertility’, which is termed as a ‘lifestyle disorder’. It is, therefore, not covered under mediclaim.” When I told him that my issue was unbearable pain, which I could live with earlier, but not now, I was advised by him not to even mention the pain I had earlier.

“They (Third Party Administration or TPA) will not entertain you at all then,” he said.

My doctor said medical insurance guidelines were archaic as there was no provision for women suffering from fibroids and other gynecological problems. With my surgery planned almost like an emergency, I quickly

spoke to my medical insurance agent, who asked me to directly get in touch with the medical insurance company.

Here’s what the doctor said: “Madam, you have children?”

“No.” “But you are married for seven years, so this surgery is to have children and we don’t cover infertility.”

“No, sir. My surgery is for me to no longer have this excruciating pain and to lead a quality life. It is not for having children. And even if it was, is infertility such a bad word?”

“Arre, madam, but your doctor should write that it is for pain and not for infertility.”

This was barely a week before my surgery and my doctor had to book the operation theatre in a leading hospital. What’s more, I had asked him to write out the letter three times for the TPA. “Sir, why is infertility not covered under mediclaim? I pay my premium regularly so I can benefit monetarily when I need the money the most. And now you tell me this is covered, that is not covered.”

“Guidelines, madam. What can we do?”

One day before my surgery, I got lucky. My medical insurance company gave me the green signal—I got the mediclaim! My friends, on the other hand, never got any claim as the word “infertility” got their claim rejected. They never bothered to follow up, sick as they were after the experience. In my case, I told my gynecologist exactly what to write. It sounded rude, untrue, demeaning: “Surgery for pain, not infertility. The patient clearly says she does not want children.” IL INDIA LEGAL June 15, 2015

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SPECIAL REPORT/ Uttar Pradesh/ UPSLSA

Quest for real justice The state government, through its legal services arm, has ensured that the disadvantaged sections of society have access to law

By India Legal Team

D

ESPITE judiciary in India doing a commendable job in dispensing justice, there are innumerable instances where the poor and the deprived sections of society are unable to get justice as they have no access to courts. This is where the Akhilesh Yadav government in Uttar Pradesh has made a mark in keeping with its socialist ideology. It has taken the arms of the law to the common man, the have-nots to be precise.

JUSTICE FOR ALL And therein lies the role of the UP State Legal Services Authority (UPSLSA). Its mission: No person should be deprived of justice because of economic or any other disadvantage. It has made its presence felt at the district (District Legal Service Authorities) and block level (Block Level Legal Service Committees), too.

This penetration is crucial considering that the state is the fourth largest in India, in terms of area. These together offer legal counseling and help to the poor, women, children, and SC/ST candidates.

Disposing of cases with the help of Lok Adalats is a major thrust area of these authorities. That the verdicts given by Lok Adalats enjoy the same legal sanctity as that of court orders makes the work easier and faster. The Adalats adjudicate on all cases, barring some criminal cases. UPSLSA, under the National Lok Adalat, has cleared 2.1 crore cases between June and December 2014, which includes civil, matrimony, labour, petty criminal issues, revenue, bank recovery and other sundry categories. The

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total settlement amount in these cases was more than `256 crore.

CREDITABLE PROGRESS Toning up manpower and infrastructure to deal with the avalanche of cases is mandatory. In keeping with this objective, necessary legislations have been introduced, additional courts have been set up and numerous posts have been created. UPSLSA created 247 temporary technical posts (81 posts for system officers and 166 posts for system assistants). The state government is creating family courts, corruption-related courts, civil judge (junior division), rural courts and special judicial magistrate courts.

The data on augmentation of infrastructure and manpower is no less inspiring. A decision was taken to have one fast-track court in each district from September 2014. As many as 12 rural courts had already been announced by February 2014. The post of “Additional Civil judge” (senior division)/Chief Judicial Magistrate was created in Bansganj Tehsil of Gorakhpur district in March 2014 while the post of Civil Judge (Senior Division) in Sadabad Tehsil, Hathras district, was set up in November 2014.

The post of Additional Chief Justice of family court was created in Meerut in March 2014. Hapur was declared a Session Division in December 2014, and last but not the least, remuneration of all sweepers in courts across the state was increased from `2,000 to `6,000, so that they remain motivated enough to keep the court premises clean.

In keeping with the need of the times and to streamline processes, MBA degree holders have been appointed as court managers.

Laptops and broadband connection have been provided to all judicial officials to equip them with the latest technology.

MONEY NO CONSTRAINT The Akhilesh government has painstakingly allocated budgetary sanction towards its goal of justice for all, especially the poor and the needy. As per the state budget 2014-2015,

Lok Adalat is a major thrust area in UP. UPSLSA, under the National Lok Adalat, has cleared 2.1 crore cases between June and December 2014. `370 crore was earmarked for the Lucknow bench of the Uttar Pradesh High Court for a new building coming up in Gomti Nagar.

Another `100 crore was allotted for residential buildings for legal officers. The state government reserved `30 crore for land acquisition needed for judicial buildings in newlycreated districts, and `68 crore was apportioned for evening courts to be set up till March 31, 2015 in case of delayed justice.

The state has maximum number of litigation cases and it’s important to decide cases on priority basis and at the same time ensure there are no baseless litigations while appropriate documents are submitted in the preliminary stages.

UPSLSA is indeed leaving nothing to chance to ensure that the state government’s goal of justice to the weak and needy is dispensed quickly, and efficiently. IL

JUSTICE FOR ALL (Above) Allahabad High Court

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PHOTO ESSAY/ Collector’s Haven

A labor of love

In a quiet corner of Delhi is a rare and awesome collection of numerous antiques, built painstakingly over the years by collector Sandeep Katari.

Come, join us on this magical journey steeped in history

By Shobha John Photos by Anil Shakya

FIT FOR A QUEEN This 1928 Ford “Doli” car was used for a bride. Notice the two opera lamps below the roof; these were switched on to demand right of way. It was used in Gandhi and is being restored for Rajeev Joseph, a Delhi businessman

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COME INTO MY PARLOR The inside of the Ford has been renovated with teak, brocade and silk. The silver lunch carrier and

goblets complete a picture of opulence

“O I WANT A MAKEOVER TOO Body of a dilapidated Ford

NCE the bug has bitten me, I can’t let go. It’s like wooing a girl.” With these gripping words, Sandeep Katari, a Delhi-based collector, shows the depth of his passion for eclectic items. Walking into his museum in a three-storeyed house in a quiet corner of Jaunapur village in Mehrauli, South Delhi, is like stepping into Aladdin’s Cave. One’s eyes scramble to absorb the treasures displayed there, be it old books, cars, bikes, scooters, horse-drawn carriages, clocks, airplane models, swords, furniture or lamps. History and nostalgia jostle with each other, making one wish that one had an entire day to browse around his firm, Advintage.

It is a labor of love. Sandeep’s entire life has been devoted to collecting old items and restoring them to their pristine glory, though he admits that it can never be as good as the original. It is obvious that he has an eye and a hand for restoration, as the work is neat and though items are cheek-by-jowl in his museum, they are well-looked after.

The most stunning vehicle can be found in his INDIA LEGAL June 15, 2015

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PHOTO ESSAY/ Collector’s Haven

VIEW IN A ROOM:

The first floor of the museum holds all kinds of knick-knacks

AM I LOOKING GRAND?

This is a 1937 Packard 110, restored for a client

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workshop, 10 minutes away. It is a 1928 Ford “Doli” car, which has been under renovation for three years, and recently took part in the Cartier show in Delhi.

When the car was found by Rajeev Joseph, a Delhi-based businessman, it was just a piece of scrap lying on a Delhi pavement for 23 years. It was given to Sandeep for restoration, and today gets its finishing touches. The shiny red and gold car with vintage opera lights has beautiful interiors done up in brocade, silk and teak. “This was actually a bridal car and when the opera lights were switched on, it meant the car had to be given right of way. It was used in the movie ‘Gandhi’ as a jail van,” informs Sandeep.

These collections are picked up from all parts of India, especially Kolkata, where Sandeep found many imperial items. “I started collecting car memorabilia after college and branched out into a business of car accessories, upholstery, etc. But 15 years back, I chucked the whole thing, much to the

astonishment of my family and started collecting and restoring full-time,” reminisces Sandeep. “Through agents and word-of-mouth, I would scout for collections all over India and verify their authenticity.” He admits that, at first, it was difficult as there was no eBay to fall back on like today. There were times when he got fooled too.

News of his workmanship has spread over the years and today, people from all walks of life seek him out to restore items that they found dilapidated in some junkyard.

The law & vintage cars GOLDEN MOMENTS

(Left) Imported number plates and a Belo camera with glass negatives OPEN SESAME

(Below) This horse-drawn carriage was bought by a Bangalore businessman and will be part of a museum. Made of teak, it has unusual doors which can slide up and down as well as open out

IN a knee-jerk reaction to increasing pollution in the capital, the National Green Tribunal (NGT) has banned 15-year-old vehicles, including vintage cars. While NGT’s attempts to clean Delhi’s noxious air are laudable, what many question is the rationale behind this banning. After all, these vehicles are part of our glorious heritage.

“Nowhere in the world are vintage cars banned as they are hardly driven,” says Sandeep Katari, head of Advintage, a firm dealing with vintage vehicles and other memorabilia. “It should be a matter of pride that we have so many vintage cars and people can enjoy the sheer range of them. We too are worried about the wear and tear of these vehicles and spend a huge amount to make them road-worthy,” he said.

An NGT bench headed by Justice Swatanter Kumar had issued an order last November saying 15-year-old vehicles were to be seized as per the Motor Vehicles Act. This order had almost felled various vintage car rallies, such as the 21 Gun Salute International Vintage Car Rally to be held in February and the ITC Grand Bharat Inaugural Vintage Car Rally in March. However, the bench gave a one-time exception to both rallies on the pleas of organizations, such as the 21 Gun Salute one and the Heritage Motoring Club of India and allowed them to take place.

The NGT had pulled up the Delhi government for not fully implementing its directions to curb vehicular pollution.

“What steps have you taken in furtherance to our orders dated November 26, 2014? You have a whole team of officers at your disposal, still you have done nothing,” the bench said.

While the one-time exception comes as a breather for these car enthusiasts, they say it is unfair that each time there is a rally, they require permission. There is a lot of difference between a 15-year-old car and a 100-year-old one, they stress.

“These cars are part of our history; how can they be banned and what will happen to the livelihood of those restoring them?” asks Sandeep.

Will old Austins, Fords, Buicks and Cadillac Convertibles become relics never to be seen again except in museums?

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PHOTO ESSAY/ Collector’s Haven

(From top left) HANDY TOOL A walking stick from Kanpur with an

elephant ivory head and a gold band IS THIS A CYCLE? The Sunbeam bike was manufactured in 1926 in the UK and has back lights made of brass, a small leather bag on the side and a horn with a hilarious hooting sound WATCH OUT! A French bayonet from the

Napoleon army

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With the help of the net and old pictures, Sandeep then works his magic on them.

His oldest item is a newspaper from the 1780s. His first renovation was a Hindustan 14 in 1992, followed by a BSA motorcycle which he got on a bullock cart from Soami Nagar in Delhi.

Many of the collections are from the UK, for which Sandeep has a special affinity. “In terms of art décor, furniture and period

pieces, one can’t beat British stuff,” he attests.

Sandeep’s hunt for antique items led to interesting encounters and people. He remembers going to Chitrakoot in Madhya Pradesh for a Studebaker car, which, he was told, had been impounded by the police in the 1930s for carrying drugs. It was auctioned by the police. He didn’t manage to buy the car, though. “Many people are unwilling to sell their vintage cars due the sentiment

BED OF ROSES

This elegant bedroom has a 150-year-old engraved bed made of Burma teak, 100-year-old green windows from Kolkata and a simple French bookcase

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PHOTO ESSAY/ Collector’s Haven

BOOKWORM A book with newspaper cuttings of the 1911 Delhi Durbar

held to commemorate the coronation of King George V and Queen Mary as Emperor and Empress of India. It was procured by Sandeep from a dealer after much bargaining

A single horsecart which was driven in competitions

LIGHT OF MY LIFE A Fiat 1919 which was bought

from Mumbai eight years back. It has only three doors, as the driver’s side is closed with a stepney and the bonnet has latches to open it

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TIME WAITS Hand-wound clocks from the early 1900s

VICTORIAN TIMES

This 1890 French horse-drawn carriage was found in a sorry condition in Rajasthan. Made from teak wood, it has a brass bell near the foot of the driver

associated with them.”

One of his most difficult buys was a book from a dealer in Dehradun, which had newspaper cuttings of the 1911 Delhi Durbar and 1914 World War I. “He refused to sell it despite both of us meeting for over two years, till, through sheer perseverance and doggedness, I managed to get it for a princely sum. The bug had

HARLEY ON A DIET

bitten me.”

But maintaining all this paraphernalia and restoring old cars to their pristine glory is not easy and takes months and sometimes, years.

Sandeep has a team of 8-10 workers— painters, welders, carpenters, denters—working on 4-5 cars at any given point of time.

His love for antiques can be seen in the other assorted stuff in his museum. The second floor of the museum houses a 150-yearold bed which he lugged all the way from Kolkata. Made of Burma teak and beautifully engraved, this “khat” covered by a colorful patchwork quilt, is matched by 100-year-old green windows, again from Kolkata. Along with a simple, elegant French bookcase, the room exudes a picture of quiet elegance.

Does his family share his craze for old stuff? “No”, he says, “they consider this junk.

Sustaining this interest is difficult and one can’t make money in this business. There are too many overheads, workers’ salaries, etc.”

Though Sandeep has not promoted his museum at all, being a self-effacing man, it does seem a shame that it isn’t savored by more people. One is reluctant to leave this world steeped in history and charm. But then, work and the chaotic world outside beckons.

Till another day. IL

(Right) This 1926 bike is 350cc and was one of 1000 Harley-Davidsons made then. All were exported. Americans, used as they were to heavy bikes, didn’t like these slim models. Don’t miss the heavy brass light

MOMENT IN HISTORY

The front page of these newspapers announce two historic events — Partition of India and the assassination of US President John F Kennedy

(Those wanting to visit the museum can phone Sandeep Katari on 9873033111) INDIA LEGAL June 15, 2015

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INTERNATIONAL BRIEFS

Russian Prez bans foreign-funded NGOs UNDER a new law signed by Russian President Vladmir Putin, foreign-funded non-governmental organizations (NGO) that threaten the country’s constitutional order or security can face a shut-down.

Employees working for them could be jailed for upto six years or could be barred from the

country. Russian citizens thought to be involved with such NGOs could also be targeted. Critics say the law is so vague that it can be twisted to subdue the freedom of people, while supporters argue that it will stop non-state players from threatening the Russian state.

Boston bomber gets death sentence DZHOKHAR TSARNAEV, 21, has been sentenced to death by a federal jury in the US for his role in the Boston Marathon bombing, which claimed three lives and injured many.

On April 15, 2013, Dzhokhar and his brother Tamerlan Tsarnaev planted pressure cooker bombs near the finish line of the marathon. On April 18, Tamerlan was killed in a shoot-out.

Crisis over Morsi’s death sentence MOHAMMED MORSI, the first democratically elected president of Egypt, has been sentenced to death along with 104 others by a Cairo court for his escape from prison during the democratic movement in the country in 2011.

Morsi went on to become the president in the country’s first free and fair elections, as leader of the Muslim Brotherhood, but the army ousted him a year later. The West has criticized Abdel Sisi’s military government for an unfair trial. Morsi’s name will be sent to the Grand Mufti, the highest legal authority, for the final verdict.

The outcome may lead to crisis in Egypt if Morsi’s supporters take to streets.

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They were motivated by extremist Islamist beliefs and hatred towards the US for its wars in Iraq and Afghanistan.

Despite the horrendous crime, a majority of residents in Boston still remain opposed to the death penalty for Tsarnaev. The death sentence sets in motion an appeal process that could go on for a decade.

Ireland approves same-sex marriage

IRELAND became the first country to legalize same sex marriage by a popular vote, with 1.2 million (62 percent of the voters) pressing the “Yes” button. Thirty-eight percent opposed it. The main political parties supported it, making way for parliament to pass laws removing restrictions on these marriages.

Ireland’s constitution can only be changed by a referendum. The present referendum was held 22 years after homosexual acts were decriminalized in Ireland. Now a marriage between two people of the same sex will have the same status as a marriage between a man and a woman.

Myanmar passes population control law UNDER pressure from hardline Buddhist monks, Myanmar’s president Thein Sein has given assent to a law which mandates a gap of 36 months between two children. The Population Control Health Care Bill is seen to be targeted at minorities, especially Rohingya Muslims, to check their population. According to The Guardian, though the government says the law is aimed at bringing down maternal and infant mortality rates, activists argue that it encroaches on women’s reproductive rights and can be misused to suppress marginalized groups.

W

1. Correct spelling?

A: Serendapity B: Serindepity C: Serendipity D: Serindipity 2. Redux.

A: Reduction B: Revived C: Deduction D: Tiny 3. Smaller word for “compendious”.

A: Brief B: Miserly C: Careless D: Timid 4. Feminine for “beau”.

A: Ballerina B: Baby C: Babe D: Belle 5. Diminutive for “crown”.

A. Jewel B. Coronet C. Coronet D. Pearl 6. Owls hoot, eagles scream, but doves ….

A: twitter B: purr C: chirr D: gibber 7. Paternal for father, sartorial for tailor but …. for author.

A: aquiline

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

By Mahesh Trivedi

B: auctorial C: Oxonian D: cerebral 8. What type of woman is a hoyden?

A: Nag B: Coy C: Tomboy D: Flirt 9. Animals living in trees.

A: Arboreal B: Herbivorous C: Biped D: Nocturnal 10. Dolorous.

A: Sad B: Rich C: Happy D: Sweet 11. Sorrel is a ….

A: bird B: reptile C: color D: tree 12. Who’s a “wastrel”?

A: Labourer B: Loafer C: Gentleman D: Seducer 13. Odd one out.

A: Egghead B: Muttonhead C: Cabbagehead D: Butterhead 14. An enophile is a lover of ….

A: sodas B: wines C: pens D: animals 15. Prêt-à-porter.

A: Ready to wear B: Light goods vehicle C: Interpreter D: Big bird 16. A word which remains same if spelt forwards and backwards.

A: Oxymoron B: Anagram C: Palindrome D: No such word 17. To throw down the gauntlet.

A: To give a challenge B: To resign C: To give up D: To defeat 18. A religious madness.

A: Bibliomania B: Anthomania C: Theomania D: Opsomania

ANSWERS

1. Serendipity 2. Revived 3. Brief 4. Belle 5. Coronet 6. twitter 7. auctorial 8. Tomboy 9. Arboreal 10. Sad 11. colour 12. Loafer 13. Egghead 14. wines 15. Ready to wear 16. Palindrome 17. To give a challenge 18. Theomania 19. Octave 20. Glass container

Y L D R WO ISE

SCORES 19. A set of eight.

A: Double square B: Octave C: Octogenarian D: Octopus 20. What’s a “carafe”?

A: Smart cafe B: Glass container C: Car handle D: Musical instrument

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

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PEOPLE / Sizzling Summer / Heat Wave Claims Over 1,400 Lives HEAT AND DUST Women cover themselves as they walk on the banks of the river Ganges during a duststorm in Allahabad

GOLDEN HAZE A woman quenches her thirst in a wheat field on the outskirts of Ajmer in Rajasthan

WET AND WARM Children ward off the heat in Mathura

MUD BATH People keep cool with a mud bath in Mirzapur

WATCH ME! Children take a dip in Sabaramti river in Ahmedabad

MAKING A SPLASH A boy fights the heat near the Taj Mahal — Compiled by Kh Manglembi Devi Photos: UNI

RNI No. UPENG/2007/25763

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

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