Final india legal 15 may 2015

NDIA EGAL I L TAJ: Legally FARMER’S DEATH: strangled 54 Judicial fallout 44

WOOING THE BABU: Postretirement revolving door

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May 15, 2015

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

ANOTHER DOSE OF DISGUSTING DISINFOMATION xus Investments Chairman Surjit Bhalla— who is also a columnist—is a rare breed of a no-nonsense, tell-it-like-it-is and the devil-take-the-hindmost writer who comments mostly on the lies and statistics that politicians and their economic spin doctors weave in order to score a goal against an ideological opponent.

Bhalla strips the concoctions bare until they either implode into their own hollow shells, or reveal evidence-based truth which lies at the core of the selfserving prevarications.

We come, now, to his latest observations on the tragic death of farmer Gajendra Singh at the AAP “pro-farmer” rally in Delhi, organized by Chief Minister Arvind Kerjriwal and his party colleagues to oppose the Narendra Modi government’s land acquisition bill.

For some odd reason, despite its several merits, the opposition, led by the media-created “resurgent” Congress “leader” Rahul Gandhi has labeled the bill “pro-rich” and therefore, anti-farmer in order to reposition the new BJP government as a right-wing, neo-capitalist, pro-industrialist behemoth. What being “pro-rich” has to do with being “anti-farmer” escapes me.

Why? Simply because there are plenty of rich farmers across India. Also being “pro-industrialists” does not mean being anti-poor because right since the days of Nehru’s socialist dreams, industrialization and urbanization have been considered important tools of social and economic engineering designed to help the nation climb out of poverty. And industrialists, not the government, run the most effi-

O

Gajendra’s death has become the proverbial football with which everybody is trying to score goals against everybody else.

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May 15, 2015

cient and productive industries and generate employment. You don’t have to be an economic honors student to know this. You just have to look around and observe.

So what’s this all got to do with Surjit Bhalla? It has everything to do with a recent column he wrote, where he argues that our nation has become so perverse, so inured to twisting the truth and ignoring the facts to suit political, legal, bureaucratic or media-circus ends that Gajendra’s death has become the proverbial football with which everybody is trying to score goals against everybody else. In the process, a human being’s death and the dimensions of his personal tragedy have been diminished.

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ays Bhalla: “I have been an active participant in the media (both print and TV) for the last 30 years. But never before have I been as embarrassed to be a part of the media as I was on Wednesday, April 24, the day of the suicide of a farmer at a political rally organized by the AAP. “For me, a suicide is one of the most difficult events to comprehend. Suicides are complex; there are often multiple factors involved. They can rarely, if ever, be attributed to one thing. If this is close to accepted wisdom, then what public policy implications can we draw from it? None. It is insensitive and logically, ethically and morally wrong (just plain wrong) for politicians, journalists and even the aam aurat to derive any policy conclusions from such a tragedy. An accident can yield insights into public policy—a suicide, never.”

I will quote liberally from Bhalla’s column because he has taken my very thoughts and expressed them better than I can attempt to do. He is right in saying that the Congress and the AAP “were the worst offenders, arguing for a direct linkage of the suicide to poor farmer distress and the BJP’s attempt to introduce the land acquisition bill. And the media, especially TV, gleefully joined in all of this.

Is there no shame left?”

My experience as a journalist is at least as old as that of Bhalla. And my horror at the media tamasha that ensued with the talking heads and the little people who speak from boxes to stage-strutting anchors during prime time TV shows was no less jaw-dropping than his. It was like a Roman blood sport.

Anchors were screaming for gore, milking the scenario for every sanguinary drop of sensation that they could squeeze out of it.

Some demanded Kejriwal’s resignation. Others played up quotes that he should have climbed up the tree to save the man. These were the same editors and anchorpersons whose news organizations were covering the event and whose cameras were focusing both on the stage and the hapless man on the tree.

The message that emanated from the medium was that the issue of land acquisition was so serious and so unpopular with poor, neglected farmers that one of them had to commit suicide in public to prove this point. In the process, the finer points of the debate and the facts were not only lost but an ugly spat of legal wrangling developed between the Delhi police and the Delhi government which further obfuscates the truth about what really happened.

Farmer distress and farmer suicides are, unfortunately, a centuries-old phenomenon across India.

Indebted farmers often take their lives. But what about Gajendra’s case? By any stretch of imagination, as facts now show, he was not a poor farmer. His family owns 40 bighas of land in Dastur. Bhalla cites NSS landholding data for 2011-12, which places Gajendra and his family among the top five per cent of all landowners in Rajasthan and the top one per cent of all landowners in India. He writes: “A relatively rich farmer committing suicide—what has that got to do with the land acquisition bill? Indeed, even a poor farmer committing suicide—what has that got to do with the land acquisition bill, or for that matter, with the setting of the minimum support price?”

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n 2013, there were 1.3 lakh suicides, out of which only one-third were female. “So should we pass some legislation to protect the males from suicide? Should legislation be brought in to alleviate male distress? Should males get an even higher salary so that they commit less suicide? Going by their learned comments on farmer suicide, if the Congress had won the previous election, they would have introduced bills to reduce male distress and, to satisfy all voters, a right to happiness bill,” fumes Bhalla. The larger ideological issue aside—the fact

We are getting a dose of drama, opportunism, disinformation and hysteria from the media, politicians, bureaucrats and police. that no sensible government can overlook farmers who make up about 70 percent of our population can only be ignored by a ruling party at its own political peril—an ugly turn of turf politics is preventing the truth from coming out.

The Indian Express reported that the Delhi police—controlled by the central government— refused to share details and evidence with the district magistrate (DM) in connection with the alleged suicide. The police are using silly legal subterfuges to deny the DM information, which he, as an administrator, must have in order to conduct a magisterial inquiry. Police spokesperson Rajan Bhagat told the press that the police has powers to investigate the issue under the CrPC Act as well as the Delhi Police Act. “If anyone has any doubt, we will take legal opinion,” he said.

So now, the death of Gajendra has also become a local political Delhi “Swaraj” issue—Kejriwal’s local government versus the BJP government-controlled police. The DM may be right in demanding full disclosure from the police. But the police argues that of the 7,000 unnatural deaths in Delhi each year— including suicides—the police conducts the inquests and magistrates rarely interfere or ask for information before completion of the investigation. “Then why do they want a magisterial inquiry here when police have registered an FIR and are carrying out a thorough investigation?” sources asked The Indian Express. The police argues that magisterial inquests are conducted by magistrates in dowry deaths, but if the police files an FIR, then the inquest becomes part of police investigation, which has happened in this case, as in the Sunanda Pushkar case.

Under the CrPc and Delhi Police Act, the police commissioner’s power is at par with the DM, argues the police and stands ready to reply in court should a legal complaint be lodged against it for failing to share information.

Who cares? What the public wants is the truth no matter where it comes from. What we are getting instead is a steady dose of drama, opportunism, disinformation and hysteria from the media, the politicians, bureaucrats and police.

editor@indialegalonline.com INDIA LEGAL May 15, 2015

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MAY 15, 2015

VOLUME. VIII

ISSUE. 17

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

LEAD

Intelligence breakdown NSA’s tall claims of bringing to book David Headley are far from true.

SEBESTIAN ROTELLA reports that the agency fumbled on crucial leads in the Mumbai terror attack

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May 15, 2015

SUPREME COURT

Turning a new page The Judicial Appointments Commission Act will herald a new beginning in executive-judiciary relations, making the chief justice of India’s role in the selection process merely symbolic. A report by VINAY RAI

When SC plays savior The apex court lifts a 25-year ban on Jesus Christ Superstar, a powerful musical drama, in Kottayam. JACOB GEORGE looks at the creative controversy INVESTIGATION

Realty at his feet A CAG report shows the Haryana government flouting all norms to satiate Robert Vadra’s appetite for land.

VISHWAS KUMAR investigates

10 14 28

ACTS & BILLS

It’s stiffling

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The corporate world demands changes in the Companies Act of 2013 so that cumbersome procedures are done away with. RAMESH MENON reports

DEFENCE

The fine print BIKRAM VOHRA analyzes the Rafale deal, and the comparative efficiency of the French fighter aircraft vis-à-vis competitors BUREAUCRACY

Second inning INDIA LEGAL digs out more cases of bureaucrats taking up lucrative assignments after retirement.

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A childhood lesson

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He surprised many as the chief ministerial choice for Maharashtra. But NEETA KOLHATKAR senses a general disappointment with his working style STATES

Next turf, Patna With a mega alliance of the Janata Parivar formed in Bihar, battle lines are drawn for the assembly polls later this year.

MANTOSH SHARMA delineates the political equations

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Why can’t Indian Hotels, which built and ran the Taj Mansingh Hotel, get its contract renewed?

By Puran Chand Tamta .......................................54 A Kerala nun is paid `12 lakh to remain mum about her sexual abuse.

By TK Devasia ............70

Under the scanner

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How a transgender is bravely leading life in a country of biases

By Khalid Shah............76

Following the recent Germanwings air crash, there’s an increasing demand for psychological testing of pilots.

SHOBHA JOHN looks at the Indian scenario

REGULARS

CM on a string?

The death of a farmer at an AAP rally opens up many legal questions

By Shailendra Singh...44

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By giving a nod to the Juvenile Justice Amendment Bill, the cabinet hopes they will be treated at par with adults, writes RAJENDRAN NAIR KARAKULAM

AVIATION PROFILE

ALSO

Edit........................................................................................4 Quote-Unquote.........................................................................8 Ringside.................................................................................... 9 Supreme Court..........................................................................17 Courts....................................................................................... 20 National Briefs...........................................................................33 More News................................................................................39 International Briefs.....................................................................75 Wordly-wise..........................................................................81 People....................................................................................... 82

Cover Design: ANTHONY LAWRENCE

INDIA LEGAL May 15, 2015

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QUOTE-UNQUOTE

“Don’t work like a robot…it impacts governance. Take time for yourself and your family.”

"I am guilty. Blame me. I feel that the rally should have been called off.”

— Delhi Chief Minister Arvind Kejriwal apologising for going ahead with a rally in the capital, even after a farmer’s death at the venue.

The Indian Express

— PM Modi while addressing bureaucrats on Civil Services Day

“Modi took huge amounts of loan from industrialists for elections. How will he repay the debt? By giving them your land…”

“The population of Muslims and Christians is growing day by day. To control this... Muslims and Christians will have to be forced to undergo sterilisation.”

— Rahul Gandhi while addressing a farmers’ rally in Delhi

— Sadhvi Deva Thakur, vice-president of All India Hindu Mahasabha.

The Indian Express

“I don’t want to say anything on this. Let’s not speculate. Don’t jump the gun.”

— Sourav Ganguly on reports that he was likely to take over as coach of the Indian cricket team. The Indian Express

“Bhushans have not set perfect examples. They made an industry out of PILs and built an empire out of it.”

“Muslims will have no future till they are used to play vote bank politics.”

— Shiv Sena leader Sanjay Raut arguing that Muslims should be stripped of their voting rights.

Saamna

“We have always known that we were being watched. But we had no idea that it was to this degree... it reveals Nehru’s deep-seated fear and anxiety about the Bose clan.”

— Chandra Bose, grandson of Netaji’s brother Sarat Chandra Bose, on the alleged surveillance by Jawaharlal Nehru on the kin of Subhas Chandra Bose. The Times of India

— Ashish Khetan, AAP leader, on Prashant and Shanti Bhushan, in Hindustan Times

“…he’s laid out an ambitious vision to reduce extreme poverty, improve education, empower women…and unleash India’s true economic potential.”

— Barack Obama in an adulation letter in Time magazine on Narendra Modi

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May 15, 2015

“I want to serve you by remaining a baba and a fakir.”

— Yoga guru Ramdev denying a cabinet berth offered by the Haryana government, at an event

Aruna

VERDICT It is better to risk saving a guilty man than to condemn an innocent one. — Voltaire

INDIA LEGAL May 15, 2015

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SUPREME COURT/ NJAC Act

NEW WINE IN NEW BOTTLE With the collegium system coming to an end, the National Judicial Appointments Commission Act has taken over. This will herald new ties between the executive and the judiciary, where the position of the Chief Justice of India will be merely symbolic

By Vinay Rai

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May 15, 2015

UNI

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HE center’s notification of the National Judicial Appointments Commission (NJAC) Act, 2014, and the Constitution (99th) Amendment Act, 2014, on April 13, are defining moments in the history of executive-judiciary relationship in India. In one stroke, the notification puts an end to the self-selection of judges in higher courts. Although both Acts were to come into force on such date as the center would notify them in the official gazette, its choice of April 13 was a masterstroke.

The Supreme Court’s (SC) five-judge constitution bench, headed by Justice Anil R Dave, was scheduled to begin hearing of 10 petitions challenging the constitutionality of these two Acts on April 15. Their passage as bills in the two houses of parliament and ratification by the required number of state legislatures, before getting the president’s assent, was a smooth affair.

CLEAR CONFLICT Justice Dave is an ex-officio member of the NJAC by virtue of being the second senior-most judge of the SC after Chief Justice HL Dattu. Therefore, his membership of the constitution bench was bound to invite a fresh challenge—that he suffered from a clear conflict of interest and as a consequence, disqualification of his membership of either the NJAC or the Constitution bench. This was the point made succinctly and forcefully by the doyen of constitutional law, Fali S Nariman, who represents the lead petitioner, Supreme Court Advocates-on-Record Association, before the bench.

Although Justice J Chelameswar, another judge on the bench, suggested that conflict of interest could not arise because Justice Dave’s interest—whether in the NJAC or on the bench—would be to ensure the appointment of competent judges to the higher judiciary, Justice Dave understood the justification for recusal from the bench, and withdrew. This led to the constitution of another bench headed by Justice JS Khehar (fourth in order of seniority). And as the other four members remain the same, hearing of the case began from April 21 when there was a fresh challenge from Nariman to Justice Khehar’s membership of the bench on the ground of conflict of

DEBATE OVER SELECTION (Facing page) Union Ministers Ravi Shankar Prasad and Arun Jaitley at a discussion on the collegium system in New Delhi (L-R) Chief Justice of India HL Dattu; Justice Anil R Dave

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interest. The bench dismissed the plea for recusal of Justice Khehar.

Even as the Justice Khehar-led bench showed its determination to expeditiously hear the case from April 27, two issues loomed large before it. One was whether the center would agree to await the bench’s ruling before letting NJAC go ahead with fresh appointments and transfers, as in case the NJAC was declared unconstitutional, it would become untenable.

The government, fortunately, agreed to defer fresh appointments and transfers by NJAC till the verdict was delivered in the case.

The second was what would happen to the tenure of the additional judges of the high court, which might end during the course of the hearing of the case, and who cannot continue without being confirmed either by the collegium or the NJAC. The bench suggested that in such cases, the tenure of such additional judges of high courts, who were on probation for two years, could continue for three more months, and asked the government to come out with details by May 11.

But there was a third issue, which it appeared, could not be resolved: what about the likely embarrassment to the two eminent persons, likely to be appointed to the NJAC, but who might lose their positions if the court were to declare it unconstitutional? If the gov-

ernment deferred the appointment of these eminent persons to the panel, it cannot start functioning, and with the court's verdict hanging like a Damocles sword, would any “expert” agree to join the NJAC? COLLEGIUM SYSTEM The collegium to choose SC judges comprised of the CJI as chairman and four senior-most judges of the court. The collegium to choose high court judges, on the other hand, comprised of the CJI and two senior-most judges of the Supreme Court. This collegium was expected to consider the opinion of the concerned chief justice of the high court, the views of the other high court judges who might have been consulted, and the views of SC judges who were conversant with the affairs of that high court.

Although the collegium accorded primacy to the CJI, he did not have a veto power over other members. Thus, the executive was bound by the recommendations of the collegium, only if they were backed by consensus within the collegium itself.

In practice, however, the differences within the collegium were never publicized. The opaque sorting out of differences within it gave rise to suspicions that members of the collegium often adopted the “give and take” approach, to ensure the elevation of their

While the collegium system facilitated the role of plurality of functionaries in the appointment process, it suffered from the vice of opaqueness, and thus invited criticism of following a clandestine process.

INDIA LEGAL May 15, 2015

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SUPREME COURT/ NJAC Act

BATTING FOR FAIR PLAY (Right) Fali S Nariman raised questions in SC over conflict of interest of judges hearing petitions against NJAC

The question asked in the legal circles is whether the eminent people chosen as members of the NJAC will be independent enough to deny the political class any advantage in the choice of judges. This concern is the thrust of many petitions against NJAC. 12

May 15, 2015

candidates to the courts, even if they were not in complete agreement with the choice of their colleagues.

All this is set to change under the NJAC, which is a six-member body. Apart from the CJI and two senior-most judges of the Supreme Court, NJAC will include the Union law minister and two eminent persons, who will be selected by a panel of the CJI, the Prime Minister, and the leader of the opposition, or the leader of the single largest party in the Lok Sabha. One of the eminent persons will be from the SCs and STs, OBC, minorities or women.

For appointment of judges to the high courts, the NJAC shall consider the views of the chief justices of the high courts, who would in turn, seek the views of two senior-most judges of the concerned high court, apart from any other judges and members of the bar. The NJAC also has to seek the views of the governor and CMs of the respective states before making recommendations for appointment of high court judges. Significantly, if two members of the NJAC oppose a proposed appointee, the appointment cannot be made. This has given rise to concerns that the law minister and an eminent person, chosen by a selection panel in which the political class is preponderant, can stop an appointment, even if endorsed by the members of the judiciary within the NJAC. HOW INDEPENDENT? The question asked in the legal circles is whether the eminent persons chosen as members of the NJAC will be truly independent to deny the political class any advantage in the choice of judges. This concern is the thrust of many of the petitions before the SC. The court can declare the two Acts unconstitutional, if it holds that they violate the basic structure of the Indian constitution because of this compromise.

The hearing of challenges to the NJAC by the SC is the “Fourth Judges Case”. The First Judges Case (SP Gupta vs President of India, (1981) Supp. 1 SCC 87) arose following the fears of a committed judiciary in the Indira Gandhi years. In this case, the seven-judges bench of the court upheld the executive’s power to appoint judges, but added that consultation with the CJI was mandatory to certify the

antecedents of the proposed appointe to the SC, and in case of high court judges, also with the chief justice of the respective high court, to certify his or her competence and character.

However, the majority judges in this case gave the executive the final say in making appointments to the higher judiciary. This upset the earlier balance of power between the executive and the judiciary. The court came under criticism for compromising its own independence.

Articles 124 (in the case of appointments to the SC), Article 217 (in the case of appointments to high courts) and Article 222 (in the case of transfer of a judge from one high court to another) of the constitution require the president to consult the CJI and other judges before making the appointments. The expression “consultation” appears to have been deliberately used by the constitution-makers to ensure that neither executive nor judiciary wields absolute power.

FULL OF AMBIGUITIES The SC, following petitions seeking to fill vacancies in the higher judiciary, decided to reconsider its judgment in the First Judges Case by constituting a nine-judge bench in 1993. The majority in this Second Judges Case,

fered from the vice of opaqueness, and thus invited criticism of following a clandestine process—the very criticism leveled against the executive when it had primacy in the appointments.

The collegium system could have weathered the storm over its functioning if only the office of the CJI had released some criteria for appointments, and laid down some procedures and mechanisms for investigating allegations of malpractices in appointments. The SC, for instance, refused to release the minutes of the collegium meeting which recommended the elevation of Justice PD Dinakaran, then chief justice of the Karnataka High Court, to the SC. Following allegations of corruption, his elevation was put on hold, but he was transferred as the Chief Justice of the Sikkim High Court. He subsequently resigned, frustrating the proceedings for his removal in parliament.

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overruled the earlier decision in the First Judges Case, and transferred “primacy” from the executive to the judiciary. Thus, the CJI was to decide after consulting two senior-most judges of the SC while recommending appointees to the SC and two senior-most judges of the high court while deciding appointment of judges to the high court.

If the CJI’s decision, formed in this manner, conflicted with that of the executive, then the former’s view would prevail. On transfer of high court judges, the CJI’s view would again prevail, but he was to consult other judges whose opinion may be relevant.

The word “consultation” was interpreted to mean “concurrence” of the CJI and the collegium. The collegium system was thus born in 1994 with all its ambiguities and aberrations, which led to its eventful demise on April 13.

The Third Judges Case arose out of a presidential reference under Article 143 of the constitution in 1997. A nine-judge bench reiterated the previous decision in the Second Judges Case, but enlarged the size of the collegium, by requiring the CJI to consult four senior-most judges of SC. While the collegium system, to some extent, facilitated the role of plurality of functionaries in the appointment process, it suf-

THAT’S UNFAIR The SC made the process of functioning of the collegium out of bounds to RTI applicants. It also stayed the Central Information Commission’s directive to it to disclose information about the collegium, and referred it to a constitution bench, where it has been pending since 2009.

The NJAC aims to broadbase the process of selection of judges by including in it members of the judiciary, the executive, eminent persons, and make it transparent. The inclusion of eminent persons was not envisaged by the constitution-makers for appointment of judges to the higher judiciary.

Therefore, if these two eminent persons exercise their veto over a proposed appointee, who otherwise, has the backing of other four members of NJAC, it may go against the letter and spirit of the original constitutional provisions. How the SC’s constitution bench considers this change in the consultation process, will be watched with interest.

The NJAC Act does not say anything on how it proposes to ensure merit, integrity, ability of the appointees and transparency in the selection process, leaving everything to rules and regulations made by NJAC. The answer to much of the criticism leveled against the collegium and the NJAC may well lie in these rules and regulations. IL

SUSTAINING GROUND (Left) Petitions against the removal of Justice JS Khehar from the bench were dismissed

STOP PRESS THE Chief Justice of India, HL Dattu, has declined to be a part of the National Judicial Appointments Commission (NJAC) until the Supreme Court arrives at a decision on the constitutional validity of the panel.

Dattu refused to participate in a meeting with the PM and the leader of the opposition for selecting two eminent persons as NJAC members.

Observers feel that his action may lead to a constitutional crisis and trigger a face-off between the judiciary and the executive.

INDIA LEGAL May 15, 2015

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SUPREME COURT/ Lifting Ban

Sound of Music The apex court delivered a landmark verdict by lifting the 25-year-old ban on the famous musical drama, Jesus Christ Superstar, imposed only in Kottayam

By Jacob George

T

HE lifting of the ban on Jesus Christ Superstar, a musical drama, by the Supreme Court is a landmark verdict. The ban was imposed in 1990 by Alphons Kannamthanam, the then district collector of Kottayam in Kerala.

On October 15, 1990, students of the liberal and modern Corpus Christy School, now called Pallikkoodam, in Kottayam, were set to enact the drama after school hours. That’s when a special messenger from the office of Kannamthanam handed over a magisterial order to Mary Roy, the founder and then principal of the school.

She stood speechless even as anxious students dressed as Jesus, Judas, Peter and Mary Magdalene swarmed around her.

They soon realized that they could not enact Jesus Christ Superstar for which they had been rehearsing for more than a month. Mary Roy planned to stage the

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May 15, 2015

drama on the annual day of the school before a special audience of parents and guests.

And the ban has been in force for the last 25 years, until the Supreme Court on April 7 allowed the plea of Father Abraham Vellathadathil, a priest of the Church of South India to lift it. Students who lost the golden opportunity to enact this famous dance drama are in their 40s now, while Mary Roy, who, incidentally, is the mother of famous writer Arundhati Roy, is a frail old lady who lives in a house on the school campus.

UNFAIR BAN The Supreme Court bench, headed by Justice Ranjan Gogoi, quashed the 1990 notification banning the drama after it was informed that it had been staged several times all over the world and even in the Vatican, that it was available online and that it had been banned only in Kottayam. Though the musical drama was banned in 1990, Vellathadathil approached the High Court only in 2002. The court dismissed the petition and the priest appealed to Supreme Court.

But why was the famous dance drama banned? There were protests from some Christian groups, but they were not that powerful to force authorities to impose a ban.

Neither had churches in Kerala taken a stringent stand against the drama. Sadly, the then LDF government, led by CPM leader EK Nayanar, didn’t attempt to reverse the ban.

Mary Roy had then said that Kan-

“Freedom of speech and expression has undergone much change.

I wrote the said order in detail in the particular context prevailing at that time.” namthanam had a personal score to settle with her. She still believes this. “My civil case with my brother was going on then. Many people were against me. There might have been some external influence behind the ban,” says Mary Roy. But Kannamthanam, now a member of the BJP national executive committee, says: “It is not fair to attribute motives to a magisterial order.”

CHANGE OF HEART But the years have changed Kannamthanam and he now has a different perspective on this issue. Though he doesn’t admit that any extraneous force had influenced him, he says that the last 25 years have changed him. “Freedom of speech and expression has undergone much change. I wrote the said order in detail in the particular context prevailing at that time, says Kannamthanam.

He is unhappy that he was not heard before the apex court pronounced its verdict. Neither was he served with a notice, nor did he know that the case was going on in the court. His response to the Supreme Court verdict? “I can very well see it in the light of new perceptions of freedom of speech and expression,” says Kannamthanam.

—Alphons Kannamthanam, the then Kottayam district collector, who had passed the order banning Jesus Christ Superstar in 1990

TRAILBLAZING CHANGE (Left) Mary Roy, principal of Corpus Christy school, also fought for Syrian Christian women’s rights (Facing page) Jesus Christ Superstar is a famous musical drama performed globally

INDIA LEGAL May 15, 2015

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SUPREME COURT/ Lifting Ban

25 YEARS LATER (Top and above) Corpus Christy School, whose students were to stage Jesus Christ Superstar on October 15, 1990

But Mary Roy has valid reasons to believe that some external forces were active against her at that time. Her name is well-known in legal circles as she had won a landmark judgment from the Supreme Court in 1986 which entitled Syrian Christian women an equal share in their father's property. As per the Travancore Succession Act 1916 and Cochin Succession Act 1921, daughters in Syrian Christian families were entitled to only onequarter of the son’s share or `5,000, whichever was less.

MOTIVATED BAN Though Mary won the case, it caused her many hardships. The Church feared the court order would divide family properties, which in turn, would weaken the Syrian Christian community and destroy its financial might. Mary Roy believes that powerful entities couldn’t digest her legal win and were behind the ban order of Jesus Christ Superstar. “The drama was slated to begin at 5.30 pm that day, but the ban order came at

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May 15, 2015

5.05 pm. The children started crying,” recollects Mary Roy. Incidentally, Jesus Christ Superstar is a timeless work by Andrew Lloyd Webber and Tim Rice and was first staged in October 1971 in New York.

It is about the extraordinary life of Jesus and the dramatic events that happened during his last days. But what might have irked some in the top hierarchy of a prominent church in Kottayam might be that the story was narrated from the perspective of Judas Iscariot, the man who later betrayed Jesus. Though the central story is of Christianity, it also narrates the politics of the time and the psychology of the characters.

Traditionally, Christians look at Judas as a representative of evil, but here, his character attracts sympathy. He has great respect for Jesus, but he fears that he is going beyond his mission, which will attract the wrath of Roman soldiers. The drama also narrates the relationships between Jesus, Judas and Mary Magdalene. Judas has concerns that Jesus, a religious man, spends too much time with Mary Magdalene who has a notorious past.

Jesus advises Judas that unless he himself is without sins, he must not criticize others.

During the Last Supper, Jesus predicts that Peter would deny him and that another would betray him. The drama doesn’t promote the Christian faith nor does it deny it.

The Supreme Court verdict has shown that bureaucracy cannot “crucify” the voice of dissent arbitrarily. IL

SUPREME COURT

Jayalalithaa’s bail extended ORMER Tamil Nadu chief minister J Jayalalithaa will continue to be on bail in the disproportionate assets case as it was extended by the Supreme Court. The court set her free till her appeals against the jail term in the Karnataka High Court were heard and the judgment given. The apex court also set May 12 as the deadline for the high court to give its verdict.

However, the high court verdict hinges on the apex court’s decision whether Bhavani Singh can be allowed to continue as the special public prosecutor (SSP) in the case or not. Singh was appointed to conduct the trial. The

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Illustrations: UdayShankar

bone of contention is whether Singh can also argue in the appeal.

A two-judge bench of the apex court, while taking up a petition filed

by DMK leader K Anbazhagan, who wanted Singh removed as an SSP from the hearing, failed to arrive at a consensus, and the matter was left to a larger bench to reach a final conclusion and give the verdict.

The Karnataka High Court can meet the deadline only if the apex court decides that Bhavani can continue as SPP. Or else the matter will be heard afresh by the High Court with the appointment of a new SPP.

New head for IPL probe team he Supreme Court appointed CBI officer Vivek Priyadarshi as the head of the investigating team of the three-judge committee for finding out the role of IPL COO Sundar Raman in the betting and spot-fixing scam in 2013. It also asked CBI to make sure that he is available to the committee.

The committee is led by former

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Chief Justice of India RM Lodha.

The need arose as the earlier head BB Mishra retired on March 31 and the committee wanted Priyadarshi to pitch in.

While justifying the need for a new man, the committee informed the court that there was need for a further probe into Raman’s role for arriving at a final conclusion.

Artistic freedom and liability aking objection to a poem which had put abusive words in the mouth of Mahatma Gandhi, the apex court ruled that there was a limit to which the freedom of speech and expression could be extended. It also clarified that one couldn’t get away with the license of artistic freedom while making fun of public figures and pointed out that attributing demeaning language to such people was a legal

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offense with a jail term.

The case was related to a petition filed by a publisher, who was facing criminal proceedings for publishing a poem by a Marathi poet. The poem projected Gandhi using obscene language in the garb of a narrator. The counsel for the publisher pleaded that the charges be dropped against him since he had apologized, but the court reserved its verdict.

INDIA LEGAL May 15, 2015

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SUPREME COURT

Bhushans get rapped he apex court turned down the pleas of lawyers Shanti Bhushan and Prashant Bhushan that an FIR be registered against a former Supreme Court judge for his “questionable” verdicts during his tenure.

It ruled that such a request could only be made by the parties to the judgments.

If admitted, the plea will open the

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floodgates for frivolous allegations made against judges for their actions and go against the smooth functioning of the judiciary, the court claimed.

The court also turned down requests of petitioners to invoke the Lalitha Kumari judgment that wanted FIRs to be registered in a complaint revealing cognizable offence. It ruled that the verdict could not be applied here.

Elections are sacrosanct he election of a legislator will be considered null and void if he or she is found to have some business relations with the government and its arms at the time of filing nomination or even after being elected, the apex court ruled.

The verdict came in a case where a BJP MLA’s election in Uttar Pradesh was invalidated as he had taken up government contracts after election. The governor had issued the disqualification order. The court turned down

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the plea of the MLA who sought an annulment of the order.

In the process, the court also remo-ved a major hurdle that follows such a disqualification—fresh polls for the vacant seat need to be held within six months while the verdict on disqualification could come in much later. It set a timeframe of 16 weeks for an elected legislature to challenge the disqualification in a high court, and for the court to deliver the judgment.

Install CCTVs aking a grim view of the alleged manhandling of a woman lawyer of the apex court at a police station in the capital in April 2014, the Supreme Court ordered the Delhi police commissioner that CCTVs must be set up at all accessible places inside police stations in Delhi. It set a deadline of two months for the order to be implemented.

The commissioner was also told to provide comprehensive information on the number of cameras already set up and those in working condition. The court will hear the matter again on May 11.

The task of investigating the manhandling case was assigned to the Special Cell of the Delhi Police by the court.

The probe was to be done by an officer of the rank of deputy commissioner and above, and the report was to be placed before the court in the next hearing.

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May 15, 2015

Relief for Malegaon blasts accused he apex court ruled that there was nothing, prima facie, to charge Lt Col Prasad Shrikant Purohit, Sadhvi Pragya Singh Thakur and four others under MCOCA in the 2008 Malegaon blasts case. It also gave them a window for seeking bail, provided they filed fresh pleas in the special court and the court took up the pleas on merit and gave its ruling within a month.

All the six had approached the apex court objecting to the 2010 order of the Bombay High Court which had brought back MCOCA charges against them after it was removed by a sessions court. They had already spent about seven years in jail.

The court, however, had reason to believe that MCOCA could be slapped on Rakesh Dhawde, one of the accused. NIA is still probing the case.

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NRIs will have to wait greeing with the center that it needed more time to bring about changes in laws so that voting rights may be extended to NRIs, the court reasoned that it could not ask the legislature to come out with a new statute or change the existing one within a fixed time schedule. However, the center was given eight weeks to do the needful on the issue.

The court was hearing a clutch of petitions that wanted quick action by the center

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on the matter.

The government had already informed the apex court earlier that it had accepted the Election Commission’s suggestion that voting rights be given to NRIs. They were to cast their votes through postal ballots.

Replying to ano-ther query from the court, the poll body said in its affidavit that migrants who relocated from a particular constituency in India couldn’t go back to cast their ballot in the same constituency.

Marriage by law hile hearing a property dispute, the apex court ruled that it didn’t matter whether a man and a woman living together as husband and wife were actually married. For, they were a married couple in the eyes of law, unless there are sound reasons to question the presumption.

The court also made it clear that such a woman was entitled to similar

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property rights, as applicable to a legally wedded wife. It was hearing a case where the family members of a man objected to a woman inheriting his property after he died, just because she was not married to him. The woman had lived with him for 20 years after his wife’s death. It gave her the legal status of being married and upheld her right to inherit the property.

Protest over new head of NHRC

Marine’s leave till July

erala governor and former chief justice of India P Sathasivam was slated to head the National Human Rights Commission. He was to take over from KG Balakrishnan who completed his tenure in April 2015.

However, the All India Bar Association went to Supreme Court opposing the move. It complained to a bench headed by Chief Justice of India HL Dattu that the center should have considered the candidature of other former chief justices of India before zeroing in on Sathasivam.

The plea was yet to be heard at the time of India Legal going to press.

lthough upset at the delay in concluding the trial of two Italian marines accused of killing two Indian fishermen, the apex court further extended the medical leave of one of them till July 15. It permitted him to go to Italy in September 2014 after he had a stroke, and later, prolonged his stay till April 13. However, it will hear the marines’ petition against National Investigation Agency probing the case in the last week of April.

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NGT gets support PIL against the order of the National Green Tribunal (NGT) banning vehicles more than 15 years old in Delhi, received a thumbs down from the apex court. The petition pointed out that the matter fell under the Motor Vehicles Act, which was outside the ambit of NGT, and therefore, the green court had no power to ban vehicles. It also said that the NGT order would impact more than 30 lakh cars and crores of two-wheelers.

However, the court pointed out that the green court was taking steps which were beneficial to the people and there was no point in discouraging it. It refused to interfere with the order.

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— Compiled by Prabir Biswas INDIA LEGAL May 15, 2015

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COURTS

Train trouble HE additional district and sessions judge of Una, Himachal Pradesh, directed the Railways to cough up around `35 lakh as compensation to two farmers of the district.

The public sector behemoth had acquired their land for the Una-Amb railway track in 1998.

As per the order, the Railways were supposed to pay the amount by April 15, failing which the Delhi-Una Janshatabdi Express was to be atta-

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Concerned about air pollution FTER putting a ban on diesel-run vehicles more than 10 years old in Delhi, the National Green Tribunal (NGT) relaxed its order for two weeks at the request of the Delhi government and in “public interest”. The court order had come in due to the apathetic attitude of the Delhi government in improving air quality in the capital.

The government told the green court that there were difficulties at the ground level in carrying out the order and it could disrupt essential services in the capital.

Truckers associations, unhappy with the order, had issued a threat that trucks bringing goods to the capital would stop doing so unless the order is revoked.

The court also told the Delhi government that it must submit “reasoned and scientifically” supported views on a range of issues that would impact vehicular pollution in Delhi.

In another hearing, the Delhi High Court abstained from issuing orders while hearing a petition on air pollution in the capital. The petition wanted the court to stop chopping of trees for the time being.

The court observed that it needed to look at reports from various agencies before concluding what needs to be done.

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ched by the court. The framers went to court complaining that the compensation was yet to be paid even after the Himachal Pradesh High Court had asked the Railways in 2013 to do so within six weeks.

Ban on documentary to continue GREEING with the contention of the central government, the Delhi High Court ruled that the ban on the telecast of BBC documentary,

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India’s Daughter, will continue.

The documentary had sparked a nation-wide debate as it showed one of the Nirbhaya case convicts justifying the rape and passing disparaging comments against women. The court, while dismissing PILs on the issue, agreed with the argument put forth by the Ministry of Information and Broadcasting in its affidavit that telecasting the documentary will only embolden people to commit such heinous acts in future. The matter will now be taken up on May 27.

No room for abortion N a significant verdict, the Gujarat High Court refused to consider the plea of a rape victim from Botad district of Gujarat that she be allowed to abort the fetus on the ground that it was not legally permissible. The law allows abortion till 20 weeks after pregnancy and the fetus was already 28 weeks old.

At the same time, the court asked the collector to take all steps for the woman to have a safe delivery and see that the child was not abandoned.

Refusing to accept her plea that the delay in seeking relief was genuine, the court clarified that despite all the adverse consequences staring her in the face, the law was sacrosanct.

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Illustrations: UdayShankar

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May 15, 2015

Ban revoked on Stephanian HE Delhi High Court was not convinced by the reasons cited to suspend a St Stephen’s student Devansh Mehta and stayed the same. It also put a stay on the conclusion of an inquiry committee which wanted him thrown out of the college.

The IIIrd year student was accused of breaking the discipline of the college on the ground that he had published an interview of the principal in the college magazine, Stephen’s Weekly, started by him, without getting the go-ahead and even spoke to the media on the issue.

The magazine was also banned by the college.

Agreeing with the plea of Mehta against the ban on the magazine and his suspension, the court issued notices to the college, its principal, and Delhi University. The university, which had contended that Mehta could not be completely absolved of all charges, was snubbed by the court, which wanted it to be impartial.

The court also objected to St Stephen’s denying Mehta an award for good conduct, for which he had been originally selected. The court asked the college to stop its distribution till it heard the matter again on May 21.

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Website blues website can’t be held guilty if a user has been conned by someone through it, and a person must go through the safety conditions listed on it carefully before registering, the Bombay High Court ruled.

The court absolved a matrimonial website of allegations of cheating after going through its terms and conditions. The charges had been levelled by a lady from a Mumbai suburb. She had come in contact with a man through the website, and had plans to marry him.

But the man duped her and even made her

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pay `2.93 lakh. To make matters worse, he deactivated the account. The woman alleged that the website did not inform her of the deactivation.

The court came to the conclusion that the lady suffered not because of the website’s shortcomings but because she did not go through the terms and conditions properly.

For a fair deal HE Punjab and Haryana High Court turned down the Ministry of Home Affairs (MHA) rule that promotion could be given to officers of the paramilitary forces injured or disabled while on active duty, but not to jawans in similar situations. It felt that the rule was discriminatory.

The court was hearing a case wherein a BSF constable, disabled while fighting militants in Jammu and Kashmir in 2000, had been denied promotion, and had appealed against it. It said that the rule may come in the way of soldiers putting in their best during any operation.

The constable was initially promoted according to an earlier MHA rule, allowing personnel from the BSF and Assam Rifles to become eligible for promotion, but later failed to get the benefit after the rule was restricted to officers. The court asked the MHA to promote Kumar and give him all the benefits within three months.

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Go easy on tobacco ban HE Delhi High Court recently offered a respite to those affected by the March 30 ban on chewable tobacco in the capital. It asked the Delhi government not to forcefully implement the order. The High Court was hearing a petition in which a tobacco trader wanted the court to strike down the ban, claiming that the state government had no powers to issue such an order. It argued that it was for the center to issue such a diktat. The court sought a response from the Delhi government and will hear the matter on May 20.

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Needless information comprehensive information on the medical reimbursements of Supreme Court judges can’t be disclosed as it contains personal details, and revealing it would amount to invasion of their privacy, the Delhi High Court concluded.

While dismissing an RTI applicant’s plea for issuing directions for such information, it also took into account that the information sought did not serve any public interest whatsoever.

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INDIA LEGAL May 15, 2015

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LEAD/ 26/11/ Inevestigation / David Headley

THE HIDDEN INTELLIGENCE BREAKDOWNS BEHIND THE MUMBAI ATTACKS

American intelligence agency NSA and British GCHQ, despite their access to a mine of data, failed to stop the terror attack on the Indian soil

By Sebastian Rotella

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HEN Edward Snowden revealed the government’s vast surveillance programs in 2013, the Obama administration responded with a defense that sounded compelling: the high-tech spying apparatus had stopped terrorist attacks.

In a rush to provide success stories, senior officials cited the capture of an American terrorist whose case I knew well. I had spent several years reporting about David Coleman Headley, whose reconnaissance for Pakistani spymasters and terrorist chiefs was crucial to the 2008 terrorist attacks in Mumbai that

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killed 166 people, including six Americans.

Now the intelligence community was claiming the National Security Agency had played a key role in preventing Headley’s follow-up plot against a Danish newspaper in 2009.

That surprised me. In a series of stories and in the 2011 Frontline documentary, “A Perfect Terrorist”, ProPublica had detailed multiple breakdowns in the US counterterror system that allowed Headley to elude detection for years despite tips that could have prevented the attacks.

I consulted with intelligence and law enforcement sources involved in the case, and they were mystified, too.

“When I first heard that statement, I was scratching my head,” a counterterror official told me. “I was trying to figure out how NSA

played a role. My recollection is that it wasn’t that much at all.”

The mystery soon deepened when ProPublica gained access to a trove of Snowden’s classified materials. Suddenly a new, previously hidden layer in the story emerged, one that largely contradicted the government’s claims and revealed Mumbai as a tragic case study in the strengths and limitations of high-tech surveillance—a rare look at how counterterrorism really works.

The Snowden documents show that, months before Mumbai, British intelligence began spying on the online communications of Zarrar Shah, a key plotter who was the technology chief for the Pakistani terror group Lashkar-e-Taiba.

Britain’s General Communications Headquarters, or GCHQ, had the ability to

THE AMERICAN AGENT (Facing page) David Headley, a key figure behind 26/11 (Above) The burning Taj in Mumbai

INDIA LEGAL May 15, 2015

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LEAD/ 26/11/ Investigation / David Headley

NSA did scoop up some of Headley’s suspicious emails. But analysts did not realize he was a US-based terrorist involved in the Mumbai attacks.

TRACING ORIGINS David Headley, born Daood Gilani, with his mother, Serrill Headley

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monitor many of Shah’s digital activities, including Web searches and emails, during weeks in which he did research on targets, handled reconnaissance data, and set up an internet phone system for the attack.

But based on documents and interviews, it appears that the British spy agency did not use its access to closely analyze data from Shah until a Lashkar attack squad invaded Mumbai on November 26, 2008. Nor did the British tell the Americans they were watching Shah beforehand, despite the close alliance between GCHQ and the NSA. The British data could have complemented separate chatter that the NSA and CIA were collecting about a potential attack on Mumbai, none of it related to Headley.

Senior US intelligence officials gave us their first account of their warnings to India about a Lashkar threat to sites in Mumbai frequented by Westerners, including the Taj Mahal Palace Hotel, the eventual ground zero. Meanwhile, Indian intelligence had separately tracked Shah’s communications before the attack, another layer of a complex international scenario.

Once the shooting started, the spy agencies went into high gear. The British realized that prior targeting of Shah gave them real-

time access to the Karachi control room from which Lashkar chiefs directed the three-day siege using phones and computers.

GCHQ and NSA pulled a haul of intelligence from the monitoring of Shah and others that enabled analysts to assemble a “complete operations plan” of the plot, according to an NSA document. The evidence helped the Western and Indian governments push Pakistan to crack down on Lashkar.

US officials emphasized that they had warned the Indians. British officials disputed the idea that they had information that could have prevented an attack; they said they would have shared such intelligence with India. The Indian government did not respond to requests for official comment, though an official in the Intelligence Bureau, India’s counterterror service, told me his agency was not involved in monitoring Shah. *** As with past failures to prevent terrorist attacks, more aggressive analysis and better intelligence-sharing could have made a difference. But high-tech spying has its limits.

“I’m not saying that the capacity to intercept the communications is not valuable,” said Charles (Sam) Faddis, a former CIA counterterror chief. “Clearly that’s valuable.”

Nonetheless, he added, it is a mistake to rely heavily on bulk surveillance programs in isolation.

“You’re going to waste a lot of money, you’re going to waste a lot of time,” Faddis said. “At the end, you’re going have very little to show for it.”

Headley represents another potential stream of intelligence that could have made a difference before Mumbai. He is serving 35 years in prison for his role. He was a Pakistani-American son of privilege who became a heroin addict, drug smuggler and DEA informant, then an Islamic terrorist and Pakistani spy, and finally, a prize witness for US prosecutors.

In recounting that odyssey, we previously explored half a dozen missed opportunities

by US law enforcement to pursue tips from Headley’s associates about his terrorist activity. New reporting and analysis traces Headley’s trail of suspicious electronic communications as he did reconnaissance missions

under the direction of Lashkar and Pakistan’s Inter-Services Intelligence Directorate (ISI).

Headley discussed targets, expressed extremist sentiments and raised other red flags in often brazen emails, texts and phone calls to his handlers, one of whom worked closely on the plot with Shah, the Lashkar communications chief targeted by the British.

US intelligence officials disclosed to me for the first time that, after the attacks, intensified NSA monitoring of Pakistan did scoop up some of Headley’s suspicious emails. But analysts did not realize he was a US-based terrorist involved in the Mumbai attacks who was at work on a new plot against Denmark, officials admitted.

The sheer volume of data and his use of multiple email addresses and his original name, Daood Gilani, posed obstacles, US intelligence officials said. To perfect his cover as an American businessman, Headley had legally changed his name in 2006.

“They detected a guy named ‘Gilani’ writing to bad guys in Pakistan, communicating with terror and ISI nodes,” a senior U.S. intelligence official said. “He wrote also in fluent Urdu, which drew interest. Linking ‘Gilani’ to ‘Headley’ took a long time. The NSA was looking at those emails post-Mumbai. It was not clear to them who he was.”

“They hadn’t connected the dots,” the official said. “They had only some of the puzzle pieces. They needed something external, like a specific entity helping us.”

In fact, it was the FBI and Customs and Border Protection which finally zeroed in on Headley—with foreign help. FBI agents in Chicago told us the story for the first time during our reporting for the film. *** On July 22, 2009, a lead landed on the desk of a youthful FBI agent named Jeremy Francis. He had joined a Chicago counterterror squad five days earlier. The tip was brief but specific: British intelligence was monitoring two suspected Al Qaeda militants in a northern city called Derby. The duo had received phone calls from a man in Chicago named David who planned to travel to meet them soon.

NEEDED, BETTER SYNERGY Mumbai terror attack happened because intel agencies globally didn’t work in sync

Getting access to Headley GOPAL SUBRAMANIUM, the then solicitor general of India, had appeared before various authorities in the US to get permission to interrogate Richard Headley. It was only after repeated efforts that India managed to get access of interrogation reports of the US. Speaking to India Legal, he says: “I was the solicitor general of India

back then and had one-to-one meeting with then Attorney general of the United States, Eric Holder. He was extremely cooperative and a man in complete command, willing to take decisions. And I think in a matter of 15 minutes we got access. But my job was only limited to the access, after which I had no occasion to review the material.”

Francis and his partner traced the calls to a pay phone on Chicago’s north side. The agents worked with border protection analysts in Washington, DC, who pored through flight manifests looking for passengers with the first name “David” who had imminent plans to fly Lufthansa from Chicago to Manchester via Frankfurt.

Border protection analysts whittled down the list to Headley, whom airport inspectors had questioned in the past. The FBI relayed his identity to British counterterror officers INDIA LEGAL May 15, 2015

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LEAD/ 26/11/ Investigation / David Headley

From the luxury of prison cell PAKISTANI-AMERICAN LeT terrorist David Headley, who is serving a 35 year sentence for his role in the 26/11 Mumbai attacks, has written a memoir in prison. The memoir details how Lashkar's “dedication” to the cause of the “liberation of Kashmir” inspired him to join the terror group. American public affairs

TV programme Frontline was given access to a draft of the memoir Headley wrote in jail. Excerpts from the draft give insight into his turn towards extremism. The book gives details about his training with Lashkar-e-Taiba and his preparations for the Denmark attack against the Jyllands-Posten newspaper.

as his flight was in the air on July 25.

The British shadowed Headley in Derby.

The suspected Al Qaeda men told him they couldn’t give him the $20,000, guns and volunteers he wanted for an attack on a Danish newspaper that had published cartoons of the Prophet Muhammad. European agencies monitored Headley as he traveled to Sweden and Copenhagen, where he did reconnaissance for the newspaper plot.

He came home to Chicago. FBI surveillance teams deployed. The case grew.

“At some point nearly every agent and analyst in the Chicago field office was working some aspect of this case,” Francis told us.

“There were hundreds of people back in FBI headquarters that were working this case.”

Their most urgent fear: a plot in the United States. Headley’s simultaneous ties to Al Qaeda, Lashkar and Pakistan’s ISI were unprecedented.

“What’s the ISI’s role, what are they doing … is he working for them?” Robert J Holley, the special agent in charge of the FBI’s Chicago Division, recalled thinking. “We don’t know what we have here.” *** Once Headley had been identified, the NSA played a role in the investigation. But our reporting showed that its contributions were more modest than the accounts offered by the intelligence community in 2013.

Senior officials had asserted that Headley’s Denmark plot was stopped by the NSA’s 215 program, which involves bulk collection of US phone records: date, duration, num-

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bers called. When a White House-appointed panel reviewed the 215 program’s role in counterterrorism investigations, however, it concluded the claim was wrong.

“We are aware of no indication that bulk collection of telephone records through section 215 made any significant contribution to the David Coleman Headley investigation,” David Medine, who chaired the Privacy and Civil Liberties Oversight Board, told us in an interview.

Senior officials also had suggested that the NSA’s 702 program, which collects the content of overseas emails and other communications, foiled Headley’s plot. Interviews with counterterror officials showed that, in reality, it played only a support role.

The 702 program was “a piece of the investigation” that helped to map out Headley’s overseas contacts, Holley said. But he made it clear that the NSA did not crack the Denmark case or identify Headley.

“This was not a plot, though, that is discovered by that program?” I asked Holley.

“That’s correct,” he said.

In interviews about our findings, US intelligence officials conceded that some of the assertions about the NSA’s role in Headley’s capture were overstated, though they insisted that the agency’s work on the case was valuable.

Officials reminded me of the super-heated atmosphere after the Snowden revelations. The Obama administration was under pressure to defend secret programs that had never been discussed before. As a result, statements about Headley and other cases sometimes lacked nuance and accuracy, officials say.

“These were highly classified programs, and it took a while to analyze the benefits of the programs and to articulate them publicly,” Medine said.

Experts say portraying bulk surveillance and other intelligence programs as a magic bullet that can stop attacks is too simplistic.

In reality, a mosaic of intelligence from multiple sources is usually required.

“Most threats are not detected by this kind of bulk collection alone,” said Andrew Liepman, a former deputy chief of the National Counterterrorism Center now with the

PERPETUATING INJUSTICE Zaki ur-Rehman Lakhvi, accused in the Mumbai terror attack, has been freed by Pakistan

Rand Corp. “Most of it is a combination of good work from the FBI, intel from human sources, and the product from NSA is essential in this mix.”

The NSA contributed to the massive amount of data investigators used to build a portrait of Headley during the weeks they shadowed him. As agents planned the arrest in early October of 2009, they consulted with an FBI behavioral specialist and Headley’s former DEA handler.

The assessment: Headley saw himself as a soldier. He responded with deference to authority and was likely to cooperate, as he had after past drug busts. The trick was to treat him with respect, like a worthy foe surrendering on the battlefield.

Headley was planning to leave the country again. Holley’s team decided to arrest him at O’Hare Airport after he passed through a security checkpoint. They would approach him discreetly—no drawn guns, no shouted commands, no swarm of agents in body armor. It worked. He politely complied.

The agents who escorted him to the interrogation room at the Chicago field office made his former DEA handler briefly visible.

The message: time to change sides again.Two agents, military veterans chosen for their interrogation skills, sat down with Headley.

He didn’t stop talking for two weeks.

Although the communications surveillance had hinted at links to the Mumbai attacks, the agents were stunned by the extent of his role in the plot and his highlevel contacts. He gave the FBI unprecedented evidence and intelligence about Al

Qaeda, Lashkar and the hardest target of all, the ISI. His testimony resulted in the unprecedented US indictment of a serving ISI officer, known only as Major Iqbal, for the terrorist murders of the six Americans in Mumbai. *** Today, Major Iqbal and other fugitive masterminds are at large in Pakistan protected by the ISI, an intelligence service that is nominally a US ally, according to Western and Indian officials and court documents.

Although Pakistan arrested a few Lashkar bosses, their trial remains stalled—six years later. In the latest display of impunity, two weeks ago Pakistani authorities released on bail Zaki ur-Rehman Lakhvi, the military chief of Lashkar.

Even the defendants behind bars are still a threat. Shah, Lashkar’s technology and communications chief, and his fellow militants continue to direct terrorist activity from the prison, according to current and former Western and Indian counterterror officials.

“They’re able to continue operating unfettered there,” said Tricia Bacon of American University, a former State Department intelligence analyst. “The control room that they once had in Karachi to oversee the Mumbai attacks, they essentially now have in the prison in the middle of the military capital in Pakistan.”

That’s another reason why Headley’s story is still relevant. Justice has not been done. IL

Our reporting showed that the NSA’s contributions were more modest than the accounts offered by the intelligence community in 2013.

— Courtesy ProPublica INDIA LEGAL May 15, 2015

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INVESTIGATION/ Vadra Land Deal

THE SKY IS THE LIMIT This could well sum up a CAG report on Robert Vadra’s land deals in Haryana.

The state government is seen as flouting all norms to accommodate Sonia Gandhi’s son-in-law

By Vishwas Kumar

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HE Congress party could face a major embarrassment in opposing the Modi government’s attempt to dilute land acquisition laws. A recent Comptroller and Auditor General of India’s (CAG) report on the earlier Congress government of Bhupinder Singh Hooda in Haryana has alleged that several private companies, including that of Robert Vadra, Sonia Gandhi’s son-in-law, had earned a windfall on lands purchased from farmers at throwaway prices.

According to the CAG report, Vadra’s company, M/s Skylight Hospitality, sold the

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lands purchased from farmers between 2007 and 2008 in the Gurgaon-Manesar area to DLF Universal Limited at 7.73 times the original cost. In addition, two other companies, M/s Sun Star Builders Pvt Ltd and M/s Witness Construction Private Limited (single developer with two companies), and M/s Botil Oil Tools I India Pvt Ltd, formerly known as M/s Baker Oil Tools (Bharat) Pvt Ltd, earned 303 and 880 times the original cost of land respectively after they sold it off to their collaborators and developers. This was within a few months of them being granted the license to develop colonies by the Hooda government.

CONTROLLED AREA In order to avoid haphazard development around cities, the state government under Section 4 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (applicable to Haryana), declares any area outside the limits of the municipal town or any other area deemed fit for residential, industrial, commercial, institutional or recreational activities to be controlled area. Development plans for these areas are prepared under Rule 8 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965.

This is how it works. Private developers purchase land from landowners and then, D-G, Town and Country Planning Department (TCPD), grants licenses to them according to Section 3 of the Haryana Development and Regulation of Urban Areas Act (HDRUAR), 1975. From 2006-14, TCPD issued 1,003 licenses to colonizers in

UNDER THE SCANNER The CAG report has unearthed questionable land deals of Robert Vadra

The CAG report says Vadra’s company, M/s Skylight Hospitality, sold the lands purchased from farmers to DLF Universal Limited at 7.73 times the original cost.

INDIA LEGAL May 15, 2015

29

INVESTIGATION/ Vadra Land Deal

PATRONISING CORRUPTION? As CM, Hooda allowed and even helped private companies bypass rules with impunity

UNI

CROREPATI’S COMPANY Skylight Hospitality Pvt

Ltd has a registered address at 268, Sukhdev Vihar, and its registration number is 170056.

It was made into a com-

pany on November 1, 2007.

Its shares had an

authorized capital of `1 crore and a paid up capital of `5 lakh.

As per Registrar of

Companies, Robert Vadra owns 99.8 percent shares of Skylight, while his mother, Maureen Vadra, holds 0.2 percent.

30

May 15, 2015

Haryana, out of which, 225 license files were scrutinized by CAG. The development plan of controlled areas in Gurgaon-Manesar was notified in February 2007.

Expectedly, after the grant of license for setting up of commercial colonies, the value of land multiplied several times. However, as per Rule 17 of HDRUAR, the colonizers cannot transfer their licenses to any other person without the approval of TCPD director.

Moreover, as per the bilateral agreement between developers and the Haryana government, firms were required to set up commercial colonies on the land and derive a maximum net profit of 15 percent of the total project cost after making provisions for statutory taxes and net profit. And if the net profit goes beyond 15 percent of the total cost, it has to be deposited with the government in completed projects.

To maintain consistency, this should have also applied to projects which haven’t been completed, says the audit report.

NELSON’S EYE However, it found that the government did not bother to collect money from private firms, allowing them undue profits. Among

the companies benefited was Skylight. The report noted: “Thus the department (TCPD) neither at the time of granting-in-principle approval nor at the time of formal approval for transfer of licenses (to collaborators) ensured that net profit beyond 15 percent of the total cost accrues to the public exchequer.

This enabled the developers to earn huge profits merely by selling the land, while the government had to forgo a sizeable amount.”

There were also irregularities, connivance and flouting of rules in allotment of land to private firms by the Haryana government, including Skylight. Some of the key findings are: According to the HDRUAR Rule 5 and Rule 11, the government is responsible for metalling of roads, footpaths and street lightning in colonies but the upkeep is in the hands of the private builder for five years from the date of issue of completion certificate. It was observed that while granting licenses to developers in Sector 83, Gurgaon, the area owned by the developer but falling under the 24-meter circulating road (standard stipulation) was also covered on the condition that the applicant would construct the circulating road passing through their site at their own cost, and road area shall be transferred free of cost to the government.

The manner in which the alignment and continuity of such roads would be done has not been envisaged.

Further, as per the existing practice, the commercial area sites should be approachable through internal roads. “In case of M/s Skylight Hospitality Pvt Ltd, the site was not approachable. The Department (TCPD), however, decided (on March 2008) to waive off this condition on the ground that approach would be taken by licensee through the plotted colony of Onkareshwar Properties Pvt Ltd and Mark Builtech Pvt Ltd in collaboration with Vatika Landbase Pvt Ltd,” said the audit report.

SUBVERTING RULES Another violation in lands allotted to Skylight pertains to the area for setting up of commercial colonies. The policy in this regard, framed in December 2006, says that in Hyper Potential Zone (HPZ) under which Gurgaon falls, the minimum area for setting

up a commercial colony is two acres. The audit observed that commercial projects were sanctioned in Sector 86, Gurgaon, in less than two acres on the rationale that if applied land was contiguous with already licensed area (i.e. another plot of land), then the area of both plots is to be taken into account.

Moreover, there were no clearly laid down norms regarding assessment of two acres and whether this was inclusive of roads and green belts. “Thus, while appraising the license of M/s Skylight Hospitality Pvt Ltd, it was observed that out of the 3.531-acre applied area, 0.83 acres fell in residential zone and 1.35 acres in the 24-meter internal circulation plan road. After excluding these areas, net area for commercial license remained 1.351 acres. The colonizer was assessed to have fulfilled the minimum area requirement of 2 acres,” said the audit, clearly hinting at a nexus between Skylight and the then Haryana government.

With no clear procedures for computing area availability, no clarity and consistency, particular applicants may have got undue benefits, the report said.

The audit found further evidence of collusion. As per the final development plan of Gurgaon-Manesar 2021 (name of report), the area falling under roads was not to be calculated in net planned area. Only Floor Area Ratio (FAR) was to be given for transferring the land falling under roads. (This means that areas earmarked for roads had to be left as such and one can only benefit in FAR, which is the number of floors permitted in ratio of the net area). “While this principle was applied in 12 cases, the net area indicated against each of these applications was after deducting area under sector roads, etc.

But in respect of M/s Skylight Hospitality Pvt Ltd, the whole area, including the area

TOUGH TIMES AHEAD? The Gandhi family will have to answer many questions on Vadra’s company, raised by the CAG report UNI

INDIA LEGAL May 15, 2015

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INVESTIGATION/ Vadra Land Deal

CREDIBILITY CRISIS? (Right) Rahul Gandhi meeting farmers’ delegations on NDA’s land acquisition bill (Below) With the CAG report, the center can now turn the tables on the Congress

Photos: UNI

falling under roads, has been indicated. It was not clear as to why such a distinction has been made in respect of M/s Skylight Hospitality,” the report says.

GREEN BELT ENCROACHED Yet another violation was in the interpretation of the development plan. The total commercial area of Sector 83, Gurgaon, was 126.80 acres, out of which 63.40 acres was to be given to private developers. By the time the green belt, roads, streetlights, etc, are considered, the area came up to 71.202 acres.

As of March 31, 2008, there were 14 applica-

32

May 15, 2015

tions, of which M/s Skylight Hospitality Pvt Ltd was at Serial No 14. Scrutiny of records

by CAG shows that if the application of Skylight was to be considered, Vadra’s 2.701 acres plot land would have been allocated by encroaching on the green belt of 7.802 acres land (71.202-63.40 = 7.802).

Thus in violation of existing rules, the TCPD allowed Vadra’s allocation of lands.

Later, similar benefits were extended to other developers. Nailing the Haryana government for distorting the rule, the audit report says: “As per Para 4 of the Development Plan, the area under green belt and sector road shall not be included under the net planned area.

Area under commercial belt and residential areas were, as such, inclusive of area under internal circulating roads and service roads.

However, TCPD has again added back area under 24 meter circulating road and service roads while computing net area falling under commercial belt. The decision to add back area falling under internal circulating roads and green belt while considering the case of Skylight…was not as per existing practice.

“Thus, in the absence of clearly spelt out procedures for computing area availability, lack of clarity and consistency, the possibility of extending undue benefits to particular applicants cannot be ruled out,” it added.

It will be interesting to see how this salvo

by CAG is tackled by the Congress. IL

NATIONAL BRIEFS

Judges’ conduct THE Supreme Court has put up the in-house procedure for action against Supreme Court and high court judges accused of misconduct and impropriety on its website. These rules had been adopted in 1999 based on a 1997 report of a panel of senior judges. It delineates the right steps to be followed in case of misconduct by high court judges, high court chief justices and judges of the Supreme Court coming to light.

Not just for Delhi

Suicide stirs debate on gays

AFTER clamping down on diesel vehicles older than 10 years and petrol-run vehicles older than 15 years in the NCR, The National Green Tribunal (NGT) has decided to take on polluting vehicles across the country. It has issued notices to the chief secretaries of all states and Union territories seeking their response on steps taken to prevent vehicular pollution in their states/UTs. At the same time, the NGT has taken a serious note of polluting industries around the NCR. According to a Hindustan Times report, it has issued a notice to the UP government, directing it to reply to a petition by Jai Hind NGO, which claimed that pottery units in Khurja, located 90 km away from Delhi, do not have environment clearances and are detrimental to environment.

The tribunal has also asked the Gujarat Government to file its reply regarding the giant Statue of Unity of Sardar Patel, expected to come up on the Sadhu Bet Island on the Narmada near Vadodara, following a petition by activists that the project will entail largescale construction, including that of hotels, kiosks, a convention center and tourism amenities, besides road link, and cause ecological damage to the river bed.

WHEN Priya Vedi, a young medico at AIIMS, ended her life because her husband was a gay and had relations with another gay, it revived the demand for decriminalizing gay sex. Last year, the Supreme Court had criminalized gay sex under Section 377. But LGBT activists say that it’s the taboo on gays that forces families to marry off their gay sons, resulting in such tragedies.

Work at Delhi district courts paralysed ALL judicial work at the six trial courts— Tis Hazari, Patiala House, Karkardooma, Rohini, Saket and Dwarka—in Delhi was held up as their lawyers went on strike.

They were protesting against the delay in passing an amendment bill related to the enhancement of pecuniary jurisdiction of trial courts. The strike was likely to continue till April 28.

The coordination committee of bar association of all district courts in Delhi

wanted the bill to be passed in the current budget session of parliament. A full bench of the Delhi High Court had already recommended to the central government that pecuniary jurisdiction be increased from the current `20 lakh to `2 crore, but there was no progress on the issue. The bill was tabled and presented in the Rajya Sabha on March 4 but later got deferred for reasons unknown.

Lawyer killed over salad RAJIV SHARMA, a lawyer at the Tis Hazari Court in New Delhi, was killed at a dhaba inside the court premises, when he had an argument with the person running the dhaba on contract, Dhana Ram Chaudhary, apparently over extra serving of free salad.

Chaudhary has been arrested and has confessed to his crime.

The police are also interrogating the owner of the dhaba, Manoj Sharma, who

is also a lawyer.

Lawyers at all the six district courts struck work on April 17 to protest against the murder, and to demand better security, including more CCTV cameras in all the courts.

INDIA LEGAL May 15, 2015

33

DEFENSE/ Rafale Deal

UNI

HAVE WE BOUGHT A LEMON? While India has gone to town about the Rafale deal, few are asking why we are buying a plane no one else wants and why other planes weren’t considered? Is everything kosher about the deal?

By Bikram Vohra 34

May 15, 2015

Indian media, in recent years has begun to believe in an irrational sense of entitlement. It is manifested in an odd conviction that it is owed an advance warning. There seems a rage over the Rafale purchase deal, fuelled more by indignation that its mandarins were not told about it and were caught on the back foot. They are actually teed off.

I

N French, the word Rafale means a rapid firing of artillery. So, most of the editorial salvos we shall read or hear are going to be politically motivated and there will be a sedulous search for scandal. We are now accustomed to pulling out the fluff from our navels and holding them to the murky light of suspicion. With TV adding to the clamor, it should be a noise fest of no great worth. But enough dust will be raised (it has already just begun) as questions are manufactured, stored in a quiver of half-baked malice and let off in any direction that makes for some sensation. And there are a slew of angles to choose from.

Don’t forget you don’t just buy the plane.

You have to also buy the spares, invest in training, logistics, simulators, maintenance manuals (and the politicians). So much for the priorities of the arms industry.

But let’s talk business.

Traditionally, fighters have a functional window that calculates their capability.

These are: Surprise the opponent without being surprised Outnumber the enemy in the air Outmaneuver the enemy to gain firing position Outlast the enemy while outmaneuvering him Achieve reliable kills The Rafale’s “surprise” ability cannot match the stealth F22. If we stop at 36 aircraft we do not outnumber the enemy. The maneuverability is worthwhile only in the maritime version. Outlasting the enemy depends on range and training and armament as does achieving reliable kills which are now relevant in more of a “Top Gun” scenario than bed-rocked in reality.

Let us see this deal for what it is. Much

UNI

like the curate’s egg, it is good and bad in parts.

No one has ever said the Rafale is a bad aircraft. Nobody makes bad aircraft. But, then, no one ever said the Bofors shoot and scoot 155mm gun was a lemon either, but the ripple effect of that mess still haunts the corridors of power.

S

o, why the Rafale? Because we have fresh “amour” with Paris? Perhaps EADS will sweeten the deal for India’s aviation sector with a better package for the Airbus family of aircraft. There is an offset element they haven’t told us about and France might be helping us in constructing a major project.

If the agreement encompasses a venture to make nuclear reactors, the Rafales are just a canapé on the smorgasbord.

Maybe we are getting the Rafale below its price tag of $100 million. Aircraft are never sold according to the tag, always well below.

The US won’t give us the F-22 Raptor,

DEFT DIPLOMACY (Facing page) PM Modi and French President Francois Hollande in Paris (Top) Rafale aircraft of the French Air Force (Above) Serge Dassault, Chairman and CEO of Dassault Group

INDIA LEGAL May 15, 2015

35

DEFENSE/ Rafale Deal

Perhaps no one has asked why an aircraft that is 14 years old and never had a market abroad should be the first choice. Why no other viable options?

PIB

stopping its largesse at the F-18. Maybe Prime Minister Modi has a penchant for being a headline-maker on each foreign trip.

And this is par for the course. Perhaps no one has asked why an aircraft that is 14 years old and never had a market abroad should be first choice. Nor (and here is the puff of dust) has there been much said about other viable options being placed on the table.

M

KILLING WITH PRECISION (From top) Eurofighter performing at Aero India 2011 in Bengaluru; Su-35 of the Russian Air Force; USA’s F-35 JSF is a fifth-generation fighter

36

May 15, 2015

aybe all these factors came into play, parts of them or none at all.

Or maybe it’s just a plain deal between two leaders after three years of hemming and hawing. That’s pretty much how the Rajiv Gandhi and Olaf Palme agreement came about to buy the 411 Bofors guns—with a chat, followed by a visit from the Swedish prime minister to India and a gentle request to please, pretty please, take the gun, we’ll throw in the ammo and the maintenance manuals for cheap but help us keep the factory open.

Gandhi agreed. And the rest, as they say, is sordid history. The guns were cannibalized, the manuals offered a feast to termites and the accusations of the kickback eclipsed the gun’s merit. Now, while the “rescue mission” element may not be quite as valid in the Rafale deal, it is still a sop if it is examined in isolation.

Except for Egypt’s recent 26 fighter deal for 5 billion Euros, the Rafale has not found a market these past 14 years. Unlike the Eurofighter, which has been made by a consortium, the Rafale is a purely French effort and no one else has gone for it. To that extent, India has brought a balloon to the dying party.

There is no clarification on the variant of

UNI

the 36 planes that India is buying. The naval Rafale makes some sense. The self-sell underscores a specific capability. Catapulted from a carrier deck in less than 75 meters, the Navy Rafale instantly and automatically rotates to the correct angle of attack.

This critical operation is made possible by the aircraft’s innovative “jump strut” nose landing gear. So if this batch is destined for the flight deck and is the only delta-winged carrier fighter in the world, then, maybe we have a leading edge in this deal.

I

f not, then it is a mighty expensive option for a heavy fighter especially since the indigenous production promise seems to have stalled before take-off and now has a broken wing.

It is this broken wing that is going to power the suspicion that everything is not kosher about the deal and a whiff of scandal could be driven to a full blown stench because there are other aircraft that haven’t even got a look in.

But, hey, are the French giving us the reactors? Why obscure the details and allow conjecture to take over?

I once asked Serge Dassault (Chairman and Chief Executive Officer of Dassault Group which manufacturers the Rafale) why anyone should buy a Rafale at over three times the price of an F-16 Block 60 Fighting Falcon. He said that it was four times more efficient than the most upgraded Lockheedmanufactured fighter ever.

I don’t quite know how true that boast is.

In an age when drones are taking over air battles and delivery systems for missiles have become as high a priority as Patriot-type defense systems, the heroic dogfight imagery is becoming passe.

Conventional wars are not on the agenda.

Besides, the upgraded version (the F-16 is the poster child for the success of navigating obsolescence) of even the Sukhois and the Gripen has given them a great lease on life.

The Gripen, for example, is the only lightweight fighter of top-line contenders.

Boeing’s F/A-18E/F, Dassault’s Rafale, the Eurofighter Typhoon, Lockheed Martin’s F-22 and F-16 Block 60, Mitsubishi and Lockheed Martin’s F-2 and Sukhoi’s Su-30/35 all have maximum takeoff weights (MTOW) in excess of 45,000 lbs, with commensurate

SORDID HISTORY The ripple effect of the Bofors gun (top) deal during Rajiv Gandhi’s tenure still haunts the corridors of power

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37

DEFENSE/ Rafale Deal

STILL IN CONTENTION The upgraded version of Gripen has given it a new lease of life

So, why the Rafale?

Because we have fresh “amour” with Paris?

Perhaps EADS will sweeten the deal for India’s aviation sector with a better package for the Airbus family of aircraft. There is an offset element they haven’t told us about.

38

May 15, 2015

PIB

price tags and maintenance costs. If you recall, India has been to war with obsolete Gnats against Sabrejets and scored. If you take a Su-35, a Typhoon Eurofighter, a Gripen along with an F-18 and pit them against the Rafale, it is a toss-up who’ll come out tops.

C

ost counts because these babes need high maintenance. An F-16 Block 60 would be available for $30 million.

The US air force got them at roughly a discounted $17 million. The Rafale comes in a $100 million. The Su-35 Super Flankers clock in at $35 million give or take a few (they like to catalogue the price at $60 million but don’t go for that) and they are absolutely first-rate aircraft.

If India has opted out of the Russian monopoly and spread its wings on the global hardware market, the price differential is a massive price to pay for cocking a snoot at Moscow. But that does not change the incomparable wow factor of the acrobatic Su-35 and the hush it creates when demonstrated at Farnborough, Le Bourget, Singapore or Dubai whenever aviation’s faithful gather. The Gripen, a largely under-rated first-rate fighter has an official tag of about $60 million, but highly negotiable with the latest upgrade the JAS 39 E/F which has a carrier version promising to be a tough “pugilist”.

At this moment, the Americans think they have a winner in the F-35 JSF project. With good reason. The US has recognized the need

for more light fighters to meet the projected demand and are pinning their hopes on the Joint Strike Fighter (JSF). Right now, the JSF sounds slightly impractical. A plane with a 56,000-lb MTOW (not exactly a “light” fighter) and an undisclosed unit cost is difficult to imagine. Yet, if there is no ban on export, the JSF could do to the world military aircraft industry what the F-16 almost did: kill it.

Suddenly, there will be a stampede for the JSF and there won’t be enough to go round.

The other offers will pale into insignificance and the JSF will have that special stamp of authority. The intended result of the JSF program is reflected in one sentiment: a stateof-the-art fifth-generation fighter costing just a little more than an F-16C. That is to be seen.

That the Indian Air Force is over a decade behind in its frontline fighters is an understatement. The MiG-21 flying coffins became junks years ago. The Jaguars are fat and clumsy. The Harriers are far too old. We fall back mostly on the upgraded MiGs and Sukhois earlier derivations.

The question to be asked is not what the stand-alone Rafales can do for us. And the answer is: not much in themselves. Unless this is the first segment of a bigger plan to purchase strike aircraft and a plan that dovetails with this purchase and has a time critical frame, one is loath to say that our generosity is ill-placed and only the French will be singing in the rain. The Air Force will still be woefully behind the curve. IL

MORE NEWS...

Parliament’s prerogative REFUSING to take cognizance of a PIL that cited incongruencies in reservation benefits accorded to SCs/STs in the past 64 years, the apex court ruled that it was a matter for the parliament to decide.

Incidentally, it was the Supreme Court which had issued notices to the center and state governments on the issue in 2011.

The PIL had pointed out that socially and economically advanced SCs and STs received all the quota benefits though they constituted only a small number among the SCs and STs living in India. It stated that 99 percent of them were yet to avail the special privileges.

Succor for acid victims PRIVATE hospitals are duty-bound to offer all kinds of treatment, and that too free of cost, to victims of acid attacks and the government must act against those violating the order, the apex court made it clear. The court had earlier set strict rules on the sale of acid, in the wake of frequent attacks on women.

Clarifying that even plastic and other costly surgeries that entail huge expenses

Man attempts suicide inside high court

must be carried out by the government hospitals without charging a penny, the court also wanted them to provide medicine, food and other facilities.

Child rights matter LAMBASTING the center for its lackadaisical attitude towards finding out missing children, the apex court pointed out that child rights perhaps did not matter for the government. The center could not provide figures on how many children, who had gone missing, were traced in 2014.

It also took the center to task for not appointing chairperson and other members of the National Commission for Protection of Child Rights despite having asked to do so by March 31.

Concern for widows

ON April 24, a man attempted suicide inside Hyderabad High Court in front of a judge. It was afternoon, while the court proceedings were on, that V Shankar from Sherlingampally in Ranga Reddy district suddenly barged into a hall where Justice SV Bhatt was presiding. Before entering, he poured a bottle of kerosene on himself.

After he entered the hall, he started shouting slogans for justice and set himself on fire. Advocates present there immediately doused the flames, while the judge summoned the police and directed them to rush the man to Osmania Hospital. He sustained 15 percent burns.

Shankar was aggrieved over a case pertaining to pattas (ownership) for house site, and was unable to build a house on his land. The judge assured him that justice would be done as per law. Later, the court staff clarified that no case pertaining to Shankar was listed before Justice Bhatt. Shankar, incidentally, is president of Aikya Praja Sankshema Sangam.

THE widows of Vrindavan drew the attention of the apex court recently for their pitiable living conditions. Aggrieved by the sheer negligence meted out to them, the court asked the Uttar Pradesh government to provide proper facilities to them through welfare schemes within six weeks, so that they could lead better lives.

The state government in its response said that `3.65 crore had already been granted for their welfare.

INDIA LEGAL May 15, 2015

39

BUREAUCRACY/ Post-retirement Jobs

Many civil servants after retirement are joining corporates and PSUs, holding top positions with enviable salaries. The case with retired taxmen is no different

By India Legal Correspondent 40

May 15, 2015

WOOING THE

BABU

E

VEN before the government inks new tax laws to curb black money, the demand for retired taxmen has soared. Corporates, both Indian and foreign, as well as high-net-worth individuals are seeking their help in meeting the challenges that will come with the new tax regime.

One such taxman is Sudhir Chandra, an Indian Revenue Service (IRS) officer. After retiring from the Central Board of Direct Taxes (CBDT) in May 2011 as its chairman, he floated an organization called CTAR (Center for Tax Awareness & Research), which claims to be “India’s first tax research center being anchored by former tax officers”. Besides creating tax

awareness, it also provides tax consultancy.

Other high-profile retired bureaucrats who have joined CTAR are ex-telecom secretary PJ Thomas, former CBI Director DR Karthikeyan and former chairman of the Central Board of Excise and Customs SK Goel. Other IRS officers, such as RK Sharma, BN Dutta and Anjani Kumar, have also joined CTAR. Talking to India Legal on his post-retirement activities, Chandra says he hates the word “retirement”. He says life has different stages and each of them are important. The former IRS officer compares it with a train journey, where one comes across different stations. “If one has to reach the final destination, one needs to catch a train from station A to

ABSOLUTE POWER (From left) As a taxman, Sudhir Chandra exposed Madhu Koda, CM, Jharkhand and handled Mayawati’s case. He was also questioned for calling private sleuths to then FM Pranab Mukherjee’s office in 2011; and handled the 2010 CWG case involving Delhi CM Sheila Dikshit

INDIA LEGAL May 15, 2015

41

BUREAUCRACY/ Post-retirement Jobs

IN DEMAND (L-R) Ex-telecom secretary PJ Thomas and former CBI director DR Karthikeyan have joined a tax firm floated by Sudhir Chandra; Taxman Ashok Kacker runs a tax consultancy firm after quitting as chief commissioner, income tax

42

May 15, 2015

reach station Z. I had an option to join private companies like several of my colleagues or do something on my own for public cause.

I chose the later. I also offer advice to corporates to earn my livelihood.”

His CTAR colleague SK Goel shares Chandra’s passion for work and life. Explaining the idea behind CTAR, Goel says: “CTAR also gives basic and free advise on tax issues to those who seek help through its website. In case of complicated tax matters, we ask the person to send documents or come and meet us personally to discuss the matter. Our wide experience helps in providing the right guidance to tax payers. We started in 2013 and we are happy with the work we are doing.”

POWERFUL POST Chandra, in his long stint in the tax department, handled several politically sensitive cases involving former chief ministers Madhu Koda (Jharkhand), Mayawati (Uttar Pradesh) and Sheila Dikshit (Delhi, in the CWG case).

However, the high point of his career remains the massive tax raids conducted on the houses and offices of Koda in 2009, when Chandra was member, investigation, in CBDT. Koda and his associates were accused of swindling `2,000 crore of public money.

The low point was his “poor” handling of Mayawati’s Disproportionate Assets (DA) case in 2010. As reported in The Indian Express in March 2013, his wife, Renu Chandra, allegedly benefited from a land deal with the Noida Authority during Mayawati’s tenure, believed to be worth `20 crore. It was alleged that the authority “illegally” helped Renu in settling the land deal in her favor in 2010 when Chandra was handling Mayawati’s DA case. It claimed that Chandra as member, investigation, CBDT, directly handled the ex-CM’s case.

Based on his department’s clean chit to Mayawati, the SC, which was monitoring the probe, dropped the DA case in July 2012.

However, Chandra had clarified that the Noida authority's decision was not a favor but a genuine settlement as per due process of the law.

In June 2011, Chandra was again in the news when several media reports alleged that the office of then finance minister, Pranab Mukherjee, in South block was “bugged”. In a June 26, 2011, report, PTI claimed that the Intelligence Bureau, probing the “bugging” incident, had questioned Chandra for calling “private sleuths” to sweep the FM’s office and not the government’s counter-intelligence unit.

Chandra, incidentally, shared a close relationship with his then boss Mukherjee.

WIDE EXPERIENCE Then, there is Ashok Kacker, who took voluntary retirement in 2007 when he was chief commissioner of Income Tax. He now runs a tax consultancy firm called AK Advisors and Consultants and is much sought-after for his extensive experience in public administration, finance, international taxations, mergers and acquisitions, capital and financial markets, val-

uation and assessments and financial markets. He is also group president with Indiabulls Group and holds directorships in India Bulls Asset Management Co. Ltd, Indiabulls Industrial Infrastructure Limited, Indiabulls Venture Capital Management Company Limited, Salins Commodities Private Limited, Golden Green Golf and Resorts Limited and Inventive Green Technology Solutions Private Limited. He was previously director of Max India Limited and Satyam Computer Services Limited and was executive director of Securities and Exchange Board of India. He also serves as member, Global Advisory Board of Arshiya Ltd. Another retired IRS officer, G Anantharaman, is now special advisor to the chairman of Tata Realty and Infrastructure Limited. He retired as Chief Commissioner of Income Tax, Mumbai, in June 2004. His profile on the company’s website claims that he has handled several tax fraud cases and matters relating to tax administration. He was also instrumental in developing the Anti-Money Laundering draft provisions in 1995-96. On retiring, he joined the Securities and Exchange Board of India (SEBI) as whole-time member in charge of surveillance, investigations and market regulations. He continued to occupy the position till March 13, 2008.

As reported in India Legal ’s March 31 issue, retired bureaucrats are seen as “prized commodities” because of their “network” and “experience”. They help corporate and individuals cut through the bureaucratic maze.

However, this “mutual” symbiotic relationship starts when the bureaucrat is in service and is “cultivated” by businessmen. Post retirement, they take up lucrative jobs in those companies

or float another one to carry on their “job”.

LURED BY PSUS But it is not only corporates which lure these babus. The taxmen also grab posts as directors and board members in government-controlled organizations. For example, Deepak Amitabh, an ex-IRS officer who is presently CMD of PTC India Ltd, the leading provider of power trading solutions in India and established in 1999 as a Public-Private Partnership.

These babus are also sought-after to fill the mandatory requirement in government-owned and private companies of having independent directors on board. They play an important role as they act as checks and balances in running a company’s affairs and are also preferred for their “personal” equations more than their domain experience.

Take former coal secretaries Alok Perti and C Balakrishnan. They are serving as independent directors in Coal India. Balakrishnan is also a director in Neyveli Lignite, another PSU that he handled as coal secretary.

Then, there are former railway officers Sudhir Mathur and Pradeep Bhatnagar, who are on the board of Concor, a public sector entity under the Indian Railways.

Quite a happy situation, that. IL

IN HIGH POSITIONS (L-R) Former coal secretaries, Alok Perti and C Balakrishnan, are serving as independent directors in Coal India; Retired IRS officer G Anantharaman is a special advisor to the chairman of Tata Realty and Infrastructure Limited

INDIA LEGAL May 15, 2015

43

POLITICS/ AAP/Gajendra Singh’s Death

Photos: UNI

Double trouble?

Will the death of this farmer lead to trouble for the AAP leadership? What are the implications if his death is confirmed as suicide?

By Shailendra Singh

FERTILE LAND FOR POLITICS The AAP rally, where the tragedy took place, was meant to criticize BJP’s land acquisition bill

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May 15, 2015

T

HE death of Rajasthan farmer Gajendra Singh during an AAP rally has put its leadership in a tight spot as various accusations are flying fast and thick over it.

While other political parties have blamed the AAP leadership for continuing with their speeches even as Singh was found hanging from a tree, his family has asked for a CBI inquiry into the incident.

On the face of it, reports allege that there

was laxity on the part of AAP workers. A police officer who was on duty at the rally venue, alleged that when AAP leaders were delivering speeches, he saw some people looking up at a tree and clapping. A man was perched on the tree, waiving a broom. He informed the control room and asked AAP workers and others not to instigate him and help bring him down. But no one cooperated and eventually, the man was found hanging from the tree.

If indeed the man was instigated to commit suicide, it falls within the ambit of Section 306 of the IPC, which provides punishment for abetment of suicide. This Section states: “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

THE RULE BOOK The police, it claims, also requested party workers not to climb the tree and to wait for the fire brigade to arrive. Again, no one paid heed and people climbed the tree, leading the man to fall to the ground. This could invite Section 186 of the IPC, which, read with Section 34 says that whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

If Gajendra has indeed committed suicide like many others, the question to be asked is: Why do they do it? In 2012, the National Crime Records Bureau (NCRB) reported 13,754 farmer suicides. But the highest number of farmer suicides was in 2004 when it was 18,241. Farmer suicide rate in India has ranged between 1.4 to 1.8 per 1,00,000 population over a 10-year period starting 2005. According to NCRB , 46 farmers commit suicide every day in India. From 1995 till 2013, 2,96,438 farmers had killed themselves in India.

Acting on a PIL last year, the Supreme Court asked the center to take steps to prevent increasing farmer suicides across the country. The PIL also sought the apex court’s direction to the center to implement the recommendations of a report by the National Commission on Farmers, chaired by agriculture scientist MS Swaminathan in 2006 on farmer suicides.

PETITION ON SUICIDES Citing various problems faced by farmers which compel them to take their life, the

petition stated: Farmers are forced to buy seeds every planting season, which increases poverty and indebtedness, compelling them to commit suicide.

Interest rate at which loans are given to the farmers is very high and they are not able to repay the same. As per the report, it should not be more than 4 percent. It also said that farmers do not know how to cope with the changing economy and need counseling from the government or society to survive it.

Absence of counseling from the government or society on how to survive “changing economy” is also a reason for their suicides.

There is no crop insurance and rural infrastructure is poor, particularly when it comes to harvest technology. Youth in villages are reluctant to continue with their ancestral occupation of agriculture because of the costrisk-return structure.

While it is still not clear whether Gajendra Singh’s death was a planned stunt or a deliberate suicide attempt, the blame-game has already begun. IL

DEATH ON CAMERA Gajendra Singh died even as attention was focussed on him

If indeed Gajendra Singh was instigated to commit suicide, it falls within the ambit of Section 306 of the IPC, which provides punishment for abetment of suicide.

INDIA LEGAL May 15, 2015

45

PROFILE/ Devendra Fadnavis

Maharashtra’s Lone Ranger As BJP chief minister of this large state, he has been a disappointment. Perceived as a puppet of Modi and Amit Shah, his inertia and lack of tact have not gone down well

By Neeta Kolhatkar

W

HEN Prime Minister Narendra Modi and BJP president Amit Shah chose Devendra Fadnavis over three other leaders—Eknath Khadse, Sudhir Mungatiwar and Vinod Tawde—as Maharashtra chief minister, there were high expectations from this “young and dynamic” leader, as national dailies described him.

He evoked interest. After all, he was a politician with no mass support and had broken many rules, chiefly the dominance of the Maratha caste. He was originally from Vidarbha, a backward and ignored region of Maharashtra and known mainly for farmers’ suicides. Vidarbha, till now, had no representation in state politics. Most of all, unlike Pramod Mahajan and Gopinath Munde, Fadnavis was not considered close to the Shiv Sena, BJP’s ally.

DYNAMIC LEADER Here was a man who, as opposition leader, had made all the right noises in the Maharashtra assembly and had begun to be perceived as a man who stood for ideals.

Among the pertinent issues that he had raised, were studied allegations on the irrigation scam, Adarsh scam and farmers’ suicides, and of the Congress-NCP-led government being run by thugs. All these had got him headlines.

Today, this same man, as chief minister, is being accused of standing for the ideals of his bosses, behaving like a lone ranger and leaving out important leaders from his own party. “He has not been a team person from the beginning; he was always a lone ranger.

Yes, he is intelligent, does a thorough study, but as an office bearer of the BJP, he is there only for name’s sake,” says a senior BJP leader on condition of anonymity.

When Fadnavis took over as CM, expecta-

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May 15, 2015

A “YES” MINISTER (L-R) Devendra Fadnavis with his political bosses Narendra Modi and Amit Shah

tions were high as corporates and industries felt that he would bring about a change in the working environment of the state.

However, after the initial noises, Fadnavis has been unable to deal with the repercussions of some tough policy decisions. These are the river regulation zone policy, compensation for farmers and a development plan for Mumbai.

“It is evident that decisions are being taken on his behalf. Fadnavis should have been more aggressive in demanding higher compensation for the affected farmers. He claims to have been informed (of issues), but we would expect him to decide too,” says Clyde Crasto, spokesperson for the NCP. Arvind Sawant, an MP from the Shiv Sena, too does not mince words. “We are hopeful that Fadnavis will be more proactive in taking decisions for housing the poor, coastal roads and development of Mumbai,” he says.

TOO PLIANT The general opinion among politicians about Fadnavis is that he is a puppet CM for his two bosses, Modi and Shah. “During the UPA tenure, the government had taken a decision to set up an international financial centre in Mumbai. Modi decided to shift it to Gujarat.

All that our CM has done is to allow himself to be used as a puppet by Modi, the BJP and

“He has not been a team person; he was always a lone ranger... As an office bearer of the BJP, he is there only for name’s sake.”

— A senior BJP leader the RSS,” says Mumbai Regional Congress Committee president Sanjay Nirupam.

Ever since he took over, Fadnavis has got himself cornered over taking support from the NCP, which Modi had called as the “naturally corrupt party”. The first instance was getting through the vote of confidence with the help of the NCP. And just last week in the first Budget Session, the BJP along with the NCP passed a no-confidence motion against Maharashtra Legislative Council chairman Shivajirao Deshmukh and supported NCP candidate Ramraje Nimbalkar.

The NCP has little to lose and Crasto nonchalantly says: “We stand by the commitment made to our national president Sharad Pawar that we will support the BJP. We will give full and unconditional support to the government from outside.”

As for the Shiv Sena, the BJP, through Fadnavis ensured that it is kept on its toes.

The Sena was integrated into the government after the controversial vote of confidence. However, since then, the relationship between the allies has been far from corINDIA LEGAL May 15, 2015

47

PROFILE/ Devendra Fadnavis

IMPATIENT OPPOSITION (L-R) Congress leader Sanjay Nirupam, NCP leader Ajit Pawar and Shiv Sena leader Uddhav Thackeray are questioning Fadnavis’s leadership mettle

What is uppermost in people’s minds is whether Fadnavis is capable of taking decisions independently and what the hidden agenda of his government is.

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dial. The Sena is being kept out of key decisions and is not consulted even for changes in the city. Time and again, Uddhav Thackeray speaks against Fadnavis and Modi.

Senior BJP leaders say Fadnavis lacks political tact and gets little support from within or outside the party. “As an opposition party, it suits us if both parties fight against each other. Of course, we will work it to our advantage,” says Hussain Dalwai, Congress MP. Sena leaders do not refute the fact that they are exerting pressure on the Fadnavis government with the help of the opposition.

When asked about this, Sawant replies: “No comments.”

NO POLITICAL TACT Dalwai criticises Fadnavis for taking direct orders from his bosses to join hands with the NCP, despite public perception. “All decisions are being made at the center. This is evident from the fact that Fadnavis has been asked to ignore the Sena and take help from the NCP. I am confident that had Nitin Gadkari or Gopinath Munde been the chief minister, they would have treated the Sena respectably,” says Dalwai.

Fadnavis has also come under criticism for the 40 percent rise in farmers’ suicides, not pushing for a higher compensation for the affected farmers and the killing of Communist leader, Govind Pansare. This is

the second consecutive year that the state has been hit by unseasonal rains and hailstorms.

The Sena has not spared Fadnavis, with Uddhav Thackeray being the first to slam him, saying that “except for the CM, nothing has changed”.

Even though Fadnavis has announced a `7,000-crore package for debt-hit farmers, the opposition (Congress and NCP) says this is insufficient. “We were accused of being corrupt even though during our government, we dealt with disasters sensitively and decisively. We would ensure a team from Delhi was sent immediately to the affected areas and the center would allocate timely and sufficient funds,” claims Ajit Pawar, NCP leader.

“This insensitive CM has not issued a government resolution and his orders are not being implemented. It shows that he is unable to take any decision independently. The farmers have also been given lower prices for their output and the government is apathetic in its approach,” Pawar says. He was one of the prime targets of Fadnavis, who named him in the irrigation scam.

What is uppermost in people’s minds is whether Fadnavis is capable of taking decisions independently and what the hidden agenda of his government is. “Fadnavis has exposed the hidden agenda of the RSS. It is sad that this government is anti a particular community,” says Sanjay Nirupam. IL

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STATES/ Bihar/Assembly Elections

The Battle for “PATLIPUTRA” The formation of the Janata Parivar has brought about a churning in the state’s political waters. A lot depends on the polls this year to see which way the tide will flow

By Mantosh Sharma

T

HE lessons of Chanakya have not been lost on Bihar’s politicians. The philosopher learnt his winning strategy from a mother who was teaching her child not to eat a bowl of hot porridge from the center. Instead, she said it should be eaten from the periphery where the porridge was cold. Chanakya implemented this lesson to defeat the Nanda empire by winning and segregating peripheral areas before attacking Magadh. And what we see today in Bihar’s politics is a glimpse of this same peripheral politics, where alliances are being made, existing coalitions are being poached and a bipolar political axis is being created as the state goes to polls this year.

The first noticeable example of peripheral politics is the recent amalgamation of six political parties from different states to form a “Janata Parivar”. Although it seems like the combined group will be a role player in Bihar

NO CAKEWALK The Nitish-Laloo combine will have to guard against the Mahadalit card played by the opposition in the coming polls Photos: UNI

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May 15, 2015

politics, there is no significant value add-on to the existing vote share that the Janata DalRashtriya Janata Dal-Congress combine has in Bihar. In the last by-election, this combination had secured 46 percent vote share and won six out of ten Vidhan Sabha seats. Other non-Bihari parties in the “Janata Parivar” are non-existent in Bihar.

T

here could be several factors that led to the merger. One, the smaller political parties are eyeing the success of perception politics. It is politically imperative to appear big to counter the BJP so that the minority votes can consolidate under one political force. Two, with the demise of the Congress in north India, there is a vacuum and thus the rush to capture middle or center politics. Three, the BJP itself playing “mandal kamandal” and aspirational politics in different states has baffled niche political players like Deve Gowda, Om Prakash Chautala and Laloo Prasad Yadav. It is not easy for them to consolidate their winning votes’ share with their traditional social engineering politics.

Let’s analyze the real players and parties which will matter the most in 2015 elections.

Jitan Ram Manjhi, the former chief minister of Bihar—who became the center of

Battle 2015 in Bihar is likely to be fought on two fronts. One is traditional, based on caste, religion and fear. The other is voting only for aspirations and a growth dream. mobilization through his astute politics— allowed himself to appear as a puppet and was chosen chief minister because of his seniority, low-profile Mahadalit image and loyalty to Nitish Kumar, the JD (U) leader. His non-threatening image was instrumental in Nitish handing over power to him so that his agenda could be pursued. After taking oath, Manjhi said: “Our aim would be to complete the unfinished works. We would work hard for the development of the state.”

However, it didn’t quite turn out like that.

Instead, during his chief ministership, Manjhi meticulously worked to build himself as a Mahadalit leader. He thus created a groundswell of support for himself, luring the BJP towards himself and trying to politically damage the JD (U). He had left the door open for future alliances by saying: “I am a man with independent thinking. I’ll walk on the path laid down by myself but take assistance of parties who join me on this path, be it the BJP or even Nitish Kumar.”

BULWARK AGAINST THE BJP? Leaders of the Janata Parivar (from left) Nitish Kumar, Laloo Prasad Yadav, Deve Gowda, Sharad Yadav and Mulayam Singh

INDIA LEGAL May 15, 2015

51

STATES/ Bihar/Assembly Elections

A BOND TO LEVERAGE (Clockwise from above) Mulayam and Laoo have extended their family relations into politics by coming under one banner; Sushil Kumar Modi and CP Thakur of the BJP’s Bihar unit

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He resigned as chief minister on February 20, and Nitish replaced him on February 22.

In a trust-vote on March 11, Nitish won comfortably, with 140 votes in favor in the 233member Bihar assembly. Manjhi abstained from voting and the rebel JD (U) leaders ended up supporting Nitish due to fear of disqualification.

M

anjhi, however, cannot be discounted as he commands the respect and sympathy of Mahadalits, who have more than 20 subcastes. Historically, this community was a part of the Dalit vote bank and has been poached by various political parties. Bihar also has left and ultra-left entities, and a majority of their vote bank is from the Dalit

population. However, associating with Pappu Yadav and Sadhu Yadav, both RJD politicians, will limit him in getting votes.

Inadvertently, he will end up importing Laloo’s negativity through them.

Last, but not the least, Manjhi will struggle to establish a viable political party. His recent launch of Hindustani Awami Morcha (HAM) will help him align with a larger political entity and bargain for seats.

The BJP, meanwhile, supported Manjhi in an effort to isolate Nitish and created quite a strain. Comments by its state leaders have indicated that its unit will play identity politics. Sushil Kumar Modi, the leader of the state BJP, said that his MLAs felt “this would be a revenge for insulting a Mahadalit by Kumar”. Similarly Nand Kishore Yadav, the BJP leader of the opposition in the state, pitching for Dalit votes said: “The Dalit community is feeling cheated by Nitish. They are completely disillusioned with him.”

By playing hard on Mahadalit issues, the state unit of the BJP has left out the growth message of Prime Minister Narendra Modi.

This may well be hijacked by Nitish before the assembly elections. The BJP should have waited a little longer instead of exposing its Dalit strategy and giving enough time to the Nitish-Laloo combination to adjust and consolidate. What’s more, the BJP state leadership has no stalwarts like Vasundhara Raje or Raman Singh, who can pull the party to victory on their own political stature.

Sushil Kumar Modi, as deputy chief minister in the JD (U)-BJP government, was, till recently, Nitish’s man in the saffron party.

Upper caste state leaders like Shatrughan Sinha and CP Thakur do not get along with Sushil. In this state of affairs, identity politics is counterproductive and could backfire, if pursued in public discourse. To top it all, the BJP became instrumental in cementing the bond between Laloo and Nitish. Alliances which were supposed to be a matter of convenience became a matter of compulsion to carve out an anti-Narendra Modi space.

R

egardless of this, the BJP has a strong partner if the HAM forms an alliance with it. It will translate into significant vote share. This combination will help the BJP fill seats which were given to the JD (U) in earlier elections. The alliance will fill the gap in the Mahadalit camp as far as its social engineering strategy for Bihar is concerned. The BJP has existing alliances with Ram Vilas Paswan, president of the Lok Janshakti Party, and Upendra Kushwaha, leader of the Rashtriya Lok Samata Party, since the 2014 parliamentary elections.

Coming to Nitish, he is an experienced politician with a broad support base. He is a product of the JP movement, defeated the Laloo-Rabri rule nine years ago, and has a legacy of governance, which saw Bihar making rapid economic strides, with remarkable improvement in roads, administration and law and order. Bihar’s economy grew at 14 percent from 2006 to 2014.

The credit for Nitish’s winning the trust vote should go to Manjhi and the BJP, as he captured the anti-BJP space in Bihar. Parties

opposing the BJP rallied around him.

Political pundits say this combination has the potential to garner 35 percent vote share in the Bihar elections.

There are likely to be two frontlines in this battle. First, will be the traditional battleline, including caste, religion and fear. While the BJP-Manjhi alliance will talk about 15 years of Laloo misrule and Nitish’s insult to Manjhi, the Nitish-Laloo alliance will campaign against the RSS-VHP combine and the incompetency of Manjhi. Amit Shah, Laloo, Sushil Modi, Manjhi and Paswan may fight at this frontline. The second frontline will be about aspirations and whether the voters will rise above traditional voting pattern, as seen in the 2014 Lok Sabha polls. This frontline will witness a political battle exclusively between Nitish and Modi. And the battle between the BJP and Nitish will have these aspirations riding on it. It’s likely that a dark horse will emerge and swing votes. IL

STRATEGIC TIES (Clockwise from top left) Ram Vilas Paswan’s support will help the BJP in Bihar; former Bihar CM Jagannath Mishra with Jitan Ram Manjhi; rivals Modi and Nitish

INDIA LEGAL May 15, 2015

53

CORPORATE/ Taj Mahal Hotel

Biased Business?

EFFORT UNDONE IHCL, which built and ran Hotel Taj Mansingh, now loses rights over it

Why did an MHA bureaucrat not extend the lease of this reputed hotel to Indian Hotels, especially when the JV between it and NDMC followed all proper norms?

By Puran Chand Tamta 54

May 15, 2015

A

famous proverb says: “If it ain’t broke, don’t fix it.” But if the bureaucracy has its way, it would break the best to fit in with its plans. Something similar is being witnessed in the case of Taj Majal Hotel (Taj Mansingh) in New Delhi.

Keshav Kumar Pathak, joint secretary in the Ministry of Home Affairs (MHA), has issued directions that Indian Hotels Co Ltd (IHCL) cease operating Taj Mahal Hotel. But this goes against its legal rights for extension.

Taj Mahal Hotel was a unique joint venture (JV) between New Delhi Municipal Council (NDMC) and IHCL, with NDMC providing 3.78 acres and funding the construction. IHCL did the construction and also provided equipment, furniture, fixtures and all other assets at its own cost. Right from the time NDMC conceived this project, it was put on record that it would be a JV. This is evident from NDMC’s Resolution No 35, dated

AT THE HELM OF THE DECISION (L-R) Sushil Kumar Shinde was the Minister for Home Affairs when the unfavorable ministry directives came; Joint Secretary KK Pathak dismissed IHCL’s Right of First Refusal

April 2, 1976, wherein it accepted joint participation in construction and running of the hotel by IHCL.

T

here were two agreements between NDMC and IHCL—a collaboration agreement for construction of the hotel and a license deed under which IHCL would run and operate it. Under the license deed, IHCL was obligated to pay NDMC a license fee every year. This was paid regularly. The initial term of the license deed was for 33 years, which expired on October 10, 2011.

However, the license deed provides for an extension and when IHCL sought it, NDMC constituted a committee to consider this request. Simultaneously, NDMC sought the opinion of its standing counsel, who held that the license vested a contractual right with IHCL to seek extension. The committee also recommended further extension for 30 years on revised commercial terms. On November 14, 2011, the Ministry of Urban Development (MUD) reviewed the matter and recorded that NDMC should try to get as close to the market rent for the hotel as possible, even if it had to negotiate with IHCL. NDMC even appointed a consultant (Ernst & Young) to advice them on this issue.

Its report said that the municipal council could re-negotiate the terms and it would gain the most if the agreement with IHCL was renegotiated and extended.

This matter was also presented to the present attorney general of India who, as per media reports in September 2014, endorsed the legal opinion given by the erstwhile solicitor general of India that extension of license by mutual negotiations with IHCL was the best option available to NDMC. One would have thought that the matter ended there. But surprisingly, as per file notings, directions were issued by MHA (then under Sushil Kumar Shinde and under which NDMC comes), which put a spanner in the works. The directions came from Dr KK Pathak. This was strange considering neither were involved in the matter.

The letter to NDMC stated that the hotel should be auctioned and that the Right of First Refusal (ROFR) should not be granted to Taj. Further, this letter was followed by a show-cause notice to NDMC to further enforce this decision.

It is strange why Pathak enforced this decision when legal luminaries and financial consultants had recommended that the IHCL license agreement should be renewed with revised terms and conditions. And why is the same policy being followed by other officials in the MHA? And why this bias against Taj Mahal Hotel, when the MUD had granted license agreement extensions to Taj Palace Hotel and the MHA to Hotel Lalit. Could someone answer these valid questions? IL

The attorney general of India, as well as experts hired as consultants, advised NDMC to renegotiate the contract.

But the MHA officials have taken just the opposite stance.

INDIA LEGAL May 15, 2015

55

ACTS & BILLS/ Companies Act 2013/Clamor for Amendments

BE THE CHANGE YOU WISH TO SEE

I

FLIGHT OF BUSINESS International players like Nokia have shut shop and are relocating to better business climes abroad

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May 15, 2015

T was more than apparent in the last ten months that companies were not growing the way it was expected after Modi came to power. He rode on a popular mandate that wanted the economy to once again grow, create jobs, open up new business opportunities and cut red tape for industrial growth.

Instead, there has been a flight of capital out of India, with leading entrepreneurs investing abroad to escape punishing tax laws. Even international players like Nokia have shut shop and are relocating to better business climes abroad.

With its sizeable canvass and reach, the Companies Act 2013, brought in by the erstwhile UPA government, was supposed to be designed to change the way companies operate as far as governance, management, auditing, disclosures and transparency were considered. The larger idea was to regulate the responsibilities of the company and its directors, and rules about dissolution

This could well be the advice that Indian industry wants to tell the Modi government as cumbersome procedures and rules are hampering growth

By Ramesh Menon

and so on. Some provisions of this Act have done away with exemptions available under Companies Act 1956 for private limited companies. Though this is a positive move, more needs to be done, say industry sources, to make it easy to do business, as the investment scenario can only improve through simplification of procedures and regulations.

FINETUNE ACT Chandrajit Banerjee, Director-General, Confederation of Indian Industry (CII) felt the 2013 Act prescribed adequate disclosures to pre-empt and weed out frauds, collusion, corruption and other misdemeanors, obviat-

ing the need to follow a stringent approach.

However, industry circles feel that a lot needs to be done to finetune the Act. They want numerous changes in the Act because there are many clauses which are restrictive for business, trade and commerce. The industry has been saying for long that the government needs to make it easier to do business in India and not create impediments, complicated laws and procedures. In fact, the World Bank’s “Ease of Doing Business-2015” ranks India 142nd against 189 nations.

The numerous complicated restrictions and strictures in the Act are contrary to Modi’s slogan of “Minimum Government and

SHOWCASING INDIA Prime Minister Narendra Modi at a meeting with French CEOs on Infrastructure in Paris in April

INDIA LEGAL May 15, 2015

57

ACTS & BILLS/ Companies Act 2013/Clamor for Amendments

CLAMOR FOR CHANGE (From left) B Prasada Rao, Managing Director, Bharat Heavy Electrical Limited; Adi Godrej, chairman, Godrej Group

Maximum Governance�.

There were numerous industry concerns about how the 2013 Act had numerous cumbersome procedural requirements related to private companies and closely-held unlisted public companies. It related to transactions; corporate social responsibility; amounts treated as deposits; loans to employees; criminalization of offences; certification of internal financial controls; consolidation of accounts; cost accounting and audit; alignment with SEBI regulations and so on. One of the changes wanted was companies needing the consent of 50 percent of the minority shareholders present.

SIMPLIFY PROCEDURES As provisions of the Act have a huge impact on corporate functioning, it must ultimately end up boosting business and not be an impediment. Industry captains want private companies to be exempted from filing of board resolutions, disclosures in board reports and consolidation of financial statements. They want simplified procedures to carry out corporate social responsibility projects and want a say in what kind of projects they should do.

They are against cumbersome procedural requirements for private companies like making a detailed offer letter with elaborate disclosures in connection with preferential

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allotment by way of private placement. They also want simplification of annual tax return forms. Under the 2013 Act, loans to directors are banned.

However, industry sources feel that due to business exigencies, private companies might want these loans to be given.

According to present rules, if a shareholder has more than ten per cent of the share, he can stop or disallow the company from taking a decision. This can be crippling for companies.

One of the things industry wants is to remove the restrictions on private companies from taking deposits from relatives of its directors or members. This could hamper the functioning of numerous private companies.

Another is changing the limit of remuneration for its directors and managers. The Act specifies that it shall not exceed 11 percent of the net profits of the company in a financial year.

A company cannot take money from their shareholders or directors and if they are securing funds, they must make the depositors aware of the financial position of the company, credit rating it has, previous deposits it has taken and also put aside a sum which is not less than 15 percent of the amounts of its maturing deposits as a kind of security for repayments when they arise.

The Act said that if a private company had to hold a general body meeting, it had to give a notice of 21 days and any decision taken would have to get the approval of 95 percent of shareholders. But industry sources say that getting such a huge percentage to agree on something is almost impossible.

RESTRICTIONS ON AUDITORS Appointing auditors is another sticky issue as the Act has numerous restrictions. He cannot be an employee of the company, cannot be employed by an officer of the company, cannot be a partner of the company, cannot be directly or indirectly associated with the company in a business relationship or be

convicted in a fraud that is less than ten years old. The industry wants the government to relax the rules for appointment of auditors for private companies.

Under the Act, property of the company cannot be sold or leased unless approved by the Board of Directors. The company also cannot borrow more than the paid-up capital invested. How, then, can companies grow?

The present Act also says that whole-time or part-time directors cannot be appointed for more than five years. If they are above the age of 70, cumbersome explanations have to be given. A person in the key position of one company cannot be in the key position of another company.

Similarly, one cannot be a director in two companies. If the rules are violated, the company will have to pay a fine of `1 lakh a year and a fine of `1,000 per day till it is rectified.

The industry wants these rules to be relaxed.

Industry sources say that private companies have to be exempted from costly and cumbersome filing of board resolutions with the Registrar of Companies.

CRIMINAL INVESTIGATION One source pointed out to India Legal that if there was a criminal investigation by the CBI, it would forward it to the Enforcement Directorate, Ministry of Corporate Affairs and the Income Tax department. Even if the CBI wound up the investigation giving a clean chit to the party as it found nothing incriminating, the other branches would continue investigating leading to unnecessary harassment and trauma.

CII flagged some issues for the government to look at and bring in changes as it was causing concern: Clarification on the status of private company being a subsidiary of a foreign company Treating directors of public companies as a “related party” Pecuniary transactions or relationships for determining the status of a director with reference to his independence Payment of remuneration to an independent director of the holding company by a subsidiary Saving provisions in respect of the existing equity shares with differential rights

“There are concerns as to the potential misuse of some of the liberalized provisions. Of particular interest is the obligation of the auditor under the proposed amendment to Section 143 (12) to report fraud to the central government only when it is above a particular threshold. Smaller frauds would be reported only to the audit committee which in turn, would be disclosed in the board’s report. A series of smaller counts of fraud may therefore go unreported. Perhaps the inclusion of a ‘basket provision’, wherein the quantum of multiple counts of fraud are in excess of a particular amount over a specified period of time are also reported, could potentially resolve this issue.”

— Arjya B Majumdar, director, Michigan-Jindal Centre for Global Corporate and Financial Law and Policy, Jindal Global Law School Transition period for undertaking deposit insurance Adi Godrej, chairman, Godrej Group, feels that the government will have to ensure that corporate functioning is not hampered.

“The Companies Act 2013 has made it very challenging for directors of companies. Too many requirements, certifications and responsibilities have been cast on them making it practically difficult to fulfill them.

“Act mandates that directors shall declare that the company has devised systems to ensure compliance with multiple laws expecting companies to disclose all non-compliances across the globe. This is humongous and does not provide information which is meaningful or useful. Non-compliance or violation under each law needs to be dealt with under respective laws and not under the Companies Act,” Godrej said.

B Prasada Rao, managing director, Bharat Heavy Electrical Limited, is of the view that compliances under the Act have put responsibilities and liabilities on the board of public sector units for protection of all stakeholders, ensuring sustainable practices and overall corporate governance across the company.

The government will do well to speedily bring in amendments and create a climate for business to flourish and also ensure that there is a fair amount of checks and balances to stop misuse and fraud. It remains to be seen how long the government will take to act on these concerns. IL

INDIA LEGAL May 15, 2015

59

ACTS & BILLS/ Juvenile Justice Amendment Bill, 2014

No child’s play G

IVEN the spate of heinous crimes committed by juveniles under 18 years of age, there has been growing clamor for treating and trying them as adults in a court of law. After much debating, and despite serious objections raised by child rights activists and a parliamentary standing committee on this issue, the Union cabinet has seen merit in bringing about the necessary changes in the law.

The December 16, 2012 gang rape and subsequent death of Nirbhaya changed the way Indians perceived juveniles accused of

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violent crimes. It also triggered a review of the juvenile justice system in India that does not permit detention beyond three years, irrespective of the gravity of the crime.

The Delhi Police, in its 33-page chargesheet, described the juvenile, one among six who raped 23-year-old Nirbhaya on a cold December night, as the most brutal of the lot.

It was he who assaulted her with a rod, resulting in an injury which led to her death.

On August 31, 2013, he was convicted of rape and murder and sentenced to three years imprisonment in a reform facility.

Although petitions from Nirbhaya’s par-

“A working system of treatment and rehabilitation has shown better results.”

—UNICEF country representative, Louis-Georges Arsenault, on why transfer of juvenile cases to adult courts has not led to reduction in crime his actions. Nonetheless, the subsequent debate over India’s juvenile law has brought about some welcome changes.

According to the Juvenile Justice (Care and Protection of Children) Act, 2000, no child below 18 years can be tried in an adult court, howsoever heinous or grave the crime he committed. The act sets up a Juvenile Justice Board, which may hold an inquiry of the juvenile and pass a reformatory order if he is found guilty. Following the Nirbhaya case, there were calls for lowering the age of juveniles or moving them to the adult criminal justice system.

Illustration: Anthony Lawrence

The recent Union cabinet nod to changes in the juvenile justice act is a much-needed reform and will treat juveniles committing heinous crimes at par with adults

By Rajendran Nair Karakulam ents and then Janata Party president Subramanian Swamy sought trial of the juvenile in an adult court, it was rejected.

The current juvenile law faces wide opposition, as it seems to provide a concession to criminals on the basis of their age. This is to give an opportunity to a juvenile offender to reform, while holding him accountable for

TIMELY AMENDMENT However, in the budget session of parliament, Union Minister for Women and Child Development Maneka Gandhi introduced the Juvenile Justice Amendment Bill, 2014, in the Lok Sabha, thereby repealing the 2000 act. Sections 16 and Section 19 (3) of the bill empower the Juvenile Justice Board to determine whether a juvenile above 16 years should be sent to a reformatory home or be tried in an adult court, to act as a safeguard to juveniles. For this, there will be categorization of the crime as “petty”, “serious” and heinous”. The court, however, cannot sentence him to death or to life imprisonment.

The bill was referred to a standing committee. The panel, in its report released in February this year, rejected the government’s proposals to prosecute adolescents below 18 years as adults. It contended that the move was discriminatory, violated the provisions of the UN Rights of Child and was in contravention of Article 14 of the constitution.

Prime Minister Modi placed the matter in front of a Group of Ministers in early April to confabulate and delve into areas of concern raised by the standing committee. After the GoM had examined the issue, the Union INDIA LEGAL May 15, 2015

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ACTS & BILLS/ Juvenile Justice Amendment Bill, 2014

juveniles as the accused.

However, there has been great opposition from jurists, activists and international organizations.

Many call it a “knee-jerk” move by the government and consider juveniles to be the scapegoats of public outrage due to increasing offenses against woman.

UNICEF said the government’s move was “a step back” and its country representative, LouisGeorges Arsenault, said that transfer of juvenile cases to adult courts, across the world, has not led to reduction in crime.

“Instead, a working system of treatment and rehabilitation has shown better results,” he said.

Activists like Bharti Ali, Ranjana Kumari and Ananth Kumar Asthana too believe that sending juveniles to jail would prove counter-productive.

The Juvenile Justice Amendment Bill, 2014, empowers the Juvenile Justice Board to find out if a juvenile above 16 years should be sent to a reform home or tried in adult court.

AGE NO BAR The juvenile in the rape and murder of Nirbhaya in December 2012

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May 15, 2015

cabinet agreed to bring down the age at which a person can be tried as an adult.

MIXED REACTIONS All this while, there has been an impassioned debate on this issue. India Legal, in its cover story of August 31 issue (“What is the Age of innocence?”) delved into this debate.

Senior advocates, such as KTS Tulsi, HS Phoolka and Atul Mathur, chairman of the Delhi Commission for Protection of Child Rights, feel this will be an important step as juveniles in conflict with the law will now realize they will not be let off easily.

Former Chairperson of the National Commission for Women, Mamata Sharma, hailed the move to allow adult trial of such juveniles. She described the amendment as a “necessary step”, citing reports which show that 45 percent of registered rape cases have

CARING FOR KIDS The bill deals with two kinds of children: those in conflict with law and those in need of care and protection. While the amendments concerning the former have grabbed the limelight, sweeping changes have also been made as regards the rights of the latter.

Section 3 of the bill provides for certain “General Principles of Care and Protection of Children”, which incorporates internationally accepted principles like presumption of innocence, right to privacy and confidentiality, principle of “best interest” and “fresh start” among others.

There are many reforms in the procedure of rehabilitation of children in need of care and protection. Section 45 of the bill introduces the idea of foster care in India, which ensures that the child will be brought up in a family environment without the parents having to adopt them.

So while child rights are being protected, the law is also taking a stern view of juveniles who commit horrendous crimes.

Justice, after all, is all about balance. IL

— With inputs from India Legal team

ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU LLAW PRACTICE : Should India allow foreign lawyers?

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AVIATION/ Psychometric Tests

PLUMMETING THE DEPTHS The Germanwings air crash has spurred calls for psychometric tests and psychological examination of pilots.

Similar demands had been raised after the fatal Mangalore crash too, but no one paid heed then

By Shobha John 64

May 15, 2015

T

HE fatal crash of the A320 Germanwings plane in the French Alps in March has led to worldwide calls for psychometric/psychological tests for pilots. The crash, it is suspected, was the handiwork of the flight’s co-pilot, who was said to be suffering from depression. And though he had passed the airline’s medical and psychological tests and was found to be “100 percent flight worthy without any limitations”, it could not detect his mental illness.

Questions are, therefore, being raised whether calls by the Indian government for mandatory psychometric tests on pilots (or does it actually mean psychological), are

indeed a good idea. Are these tests 100 percent reliable and is it worth the trouble for airlines, already in the red, to have them as part of mandatory requirements?

Experts reveal that after the Mangalore crash in May 2010, the DGCA had issued an advisory for airlines to employ aviation medicine specialists who could do aero medical training of flight and cabin crew (see http://dgca.nic.in/circular/general/gac01_ 2011.pdf. However, since this was not mandatory, most airlines didn’t follow this recommendation.

WEAKNESS IN AIRLINES It is a fact that airlines and regulators are not doing anything to address mental health

issues among flight crews.

This lack of systemic screening for psychological problems was seen as a weakness by the International Civil Aviation Organization (ICAO) in 2012.

Incidentally, commercial pilots undergo regular health check-ups every six months at air force establishments. ICAO has mandated that it be conducted by doctors trained in aviation medicine, who are from the air force. Pilots also have to undergo an alcohol test prior to the departure of every flight of theirs. How-ever, psychometric tests for commercial pilots are not mandated by ICAO. Some airlines use these tests during pre-employment medical test, where the ability, personality and behaviour of the pilot are assessed. But experts stress that this one-time assessment may not be adequate to monitor the mental state of aviators. Psychological evaluation is usually done later on in a pilot’s career, but only if referred by an aviation medicine specialist.

Emirates, one of the top airlines, requires all pilots to undergo a regular medical assessment, which includes physical and psychological aspects. A spokesman told India Legal: “During the pilot recruitment process, all candidates undergo physiological tests.

Our first officers are also mandated to undergo another additional round of psychological testing for their promotion as a pilot.”

An aviation medicine expert said on condition of anonymity: “These tests are used to identify emotional disorders and mental health. Some psychometric tests help in detecting underlying deep mental problems.”

Usually, a battery of standardized tests

IN THE HOT SEAT Mental balance and compatibility between the crew is important for flight safety

Experts reveal that after the Mangalore crash, the DGCA had issued an advisory for airlines to employ aviation medicine specialists for its crew. However, airlines didn’t follow this recommendation.

INDIA LEGAL May 15, 2015

65

AVIATION/ Psychometric Tests

Forget tests, give counselling to pilots The recent demands for psychometric tests for pilots may just open a can of worms for everyone—the government, DGCA, airlines and of course, pilots.

CAPTAIN SHAKTI LUMBA, a veteran pilot who was head of flight operations at IndiGo and Alliance Air, tells SHOBHA JOHN why the government, instead of over-reacting, should adopt a humane approach towards those depressed The government wants to make psychometric tests for pilots compulsory. Is this a good idea?

There seems to be a lack of understanding as to what are psychometric, psychological and psychiatric tests and what they determine. Pilots undergo psychometric tests conducted by airlines. What the government seems to have in mind are psychological and psychiatric tests. If so, then, these must be conducted by psychologists and psychiatrists who are experts at predicting whether an individual is on a self-destructive path like suicide, potential violent behavior or both. In the absence of international norms, it would be anything but simple to implement such proposals and efforts to do so are likely to draw resistance from employees and privacy and civil liberties’ advo-

comprising of objective and projective techniques is administered, and complete clinical history and mental status examination is done before diagnosing any psychopathology.

IAF TESTS In the IAF, said the expert, psychometric tests are used in conjunction with techniques to evaluate cases of pilots with head injuries post ejection, low motivation to fly, fear of flying, psychosomatic issues, air sickness, adjustment disorders, etc.

“Psychologists evaluate prospective officers of all branches, including the flying branch, during Air Force Selection Board interviews.

Flying branch candidates are also required to pass a Pilot Aptitude Battery Test, which assesses hand-eye coordination.”

What is scary in the Germanwings crash is that the co-pilot was a cheerful and careful

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pilot. Though he had been treated for depression, he seemed fine. So when does depression, a normal phenomenon many people go through, become severe mental illness? That, indeed, is a thin line. But the signs of depression would be there—Lack of interest in activity and friends, insomnia, poor appetite, poor posture and low volume of speech.

The mental make-up of pilots has increasingly come into focus (see box). Shockingly, a study done by Dr Hatters Friedman and Dr Chris Kenedi, a psychiatrist at Duke University, found that of the 85 aircraft suicides from 1965 to present, 18 appeared to be murder-suicides, 15 perpetrated by pilots.

Pilots are naturally wary of disclosing any mental illness as it could jeopardize their careers and lead to stigma. However, in 2010, the Federal Aviation Administration (FAA) allowed them to take certain antidepressants

cates. To declare someone suicidal, on the basis of which he loses his livelihood, could lead to serious legal issues for the airline and the doctor. But why single out pilots when other categories such as air traffic controllers and engineers too can cause harm? If safety is the main concern, test all employees who have the capacity for mass murder.

What will psychometric tests determine?

It's difficult to look into a person’s mind and see how he would react to a LifeChanging Unit (LCU) episode. Rather than tests, it would be more beneficial if airlines/regulators introduce humane and non-punitive counseling and support for those undergoing life-changing episodes, leading to depression (eg, death of a spouse or child, financial or professional setbacks, etc). The higher the LCU count, the more unreliable the behavior. A co-relation exists between a pilot-error accident and LCUs accumulated six months prior to the incident.

Would conducting psychometric tests

be a logistical nightmare for airlines?

If the government is foolhardy enough to propose these tests as pre-flight tests, then, it will be a nightmare not only for airlines but for the public too. There are not enough psychiatrists/psychologists in the country, leave aside the air force, to conduct such tests daily.

Are pre-flight medical checks of airlines done professionally?

Yes, they are. A preflight medical is done primarily to check for alcohol and general physical condition by observation. Only if the doctor has doubts, can he undertake further investigation.

Would it be a good idea to have aviation medicine specialists on board airlines?

Every air force doctor or aviation medicine specialist is not trained to conduct psychiatric and psychological tests.

Many pilots have gone through your training. Approx what percentage would have some psychological issues?

In my 40-year career, I have not come

and still fly. The aviation expert said: “These include selective Serotonin Reuptake Inhibitor (SSRI) medications such as Fluoxetine (Prozac), Sertraline (Zoloft), Citalopram (Celexa) and Escitalopram (Lexapro). They are non-sedating, commonly prescribed and with minimal side-effects.”

Such pilots, says FAA, have to be “clinically stable on a stable dose on medication for 12 months prior to applying for a special issuance medical certificate”. The pilot has to give a written statement describing his history of antidepressant use and mental health status and provide medical records. However, this program of FAA’s has been viewed by aviators as costly and burdensome.

STRESSFUL LIFE So how different are pilots from other professionals? They often suffer from excessive

across a single case of a pilot flying with major psychological issues.

In that case, is the government overreacting in wanting psychometric tests?

Yes, I think it is. The final inquiry report has still not been released. The government should wait for the report and its recommendations. If such testing is considered mandatory, then, there should be internationally recommended standards for such tests. In the interim, any risk of re-occurrence of such crashes is mitigated by the "two people in the cockpit rule".

Can airlines in India have peer group support like some airlines abroad to address stress levels of pilots?

Some airlines do and all airlines must.

What does the FAA say about this issue?

No one is saying anything about the crash till the report comes out. Only our government is over-reacting. The Germanwings crash was a one-in-abillion case. Psychological or psychiatric

fatigue due to sleep deprivation and physical exertion, leading to self-medication. “Ordinary over-the-counter medication such as Avil, Cetrizine and Phenergan can induce drowsiness that can worsen the effects of fatigue. These can, therefore, lead to serious consequences in air. Similarly, anti-epileptic drugs like Luminal and anti-diabetic drugs can also have disastrous effects in the flying environment,” revealed the expert.

So what do pilots feel about having mandatory and regular psychometric and psychological tests?

“It is a good idea as these will weed out the unwanted elements. In flying, we can’t have below average candidates as they become a liability,” said a senior commander of an airline. “Psychometric tests check whether a pilot is a team player, has stability of character or will get agitated.”

“Psychometric tests are a good idea to weed out unwanted elements. In flying, we can’t have below average candidates as they become a liability.”

—A senior commander INDIA LEGAL May 15, 2015

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AVIATION/ Psychometric Tests

DOOMED TO DEATH (Below) Debris of the crashed Germanwings Airbus 320 (Bottom) Family members of the victims killed in the crash

Pilots come with different attitudes, temperaments and age differences, all leading to communication problems. Not to mention egotism, aggression and machismo. Many pilots still shake their head in amazement at an incident in 1988 when two senior pilots, who couldn’t get along, were flying a B737.

The glacial atmosphere in the cockpit was such that when the commander forgot to put his landing gears down, the co-pilot kept mum. The plane landed on its belly in Kolkata, damaging it. Both pilots were taken off flying.

PERSONALITY ISSUES One commander revealed that some senior pilots are so domineering that they’re like “mothers-in-law” in the cockpit whom no one wants to fly with. “They are the I-memyself types. Co-pilots wriggle out of flights with them by simply calling up and saying they are ‘sick’. The roster team of airlines too knows the psychology of pilots and adjusts them according to their temperament. Two weak pilots, both in terms of skill and attitude, should never be put together. It could jeopardize flight safety. Flying, after all, is all about attitude,” he said.

In fact, NASA has identified deficient interpersonal communication as a causal factor in 70-80 percent of accidents. These are often ironed out in mandatory Crew Resource Management training and are meant to focus on resilience, coping with stress, enhancing positive thinking and interpersonal relations. They are conducted once a year by airlines.

But who can take on commanders who behave like demi-gods, brooking no disagreement? This January in Chennai, a pilot and an engineer came to blows when the flight

Questions Galore Questions have been raised over these crashes: In 1997, a SilkAir Boeing 737 crashed in

Indonesia, killing all 104 people aboard. The pilot had recently been demoted in the wake of complaints. He was also under financial and family strain. US investigators concluded he had committed suicide.

In 1999, an EgyptAir Boeing 767 departing

from New York crashed into the Atlantic off Nantucket Island and killed 217 people. US investigators ruled out mechanical failures and blamed the co-pilot.

In 1999, a grounded Air Botswana pilot

took off in one of the airline’s turboprops and crashed it into another plane nearby, leading to both planes exploding and all dying.

In 2014, Malaysia Airlines Flight 370

disappeared; investigators said it was likely that one of the pilots deliberately crashed it into the sea.

Photos: UNI

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May 15, 2015

was on the ground and being cleaned. Just then, the pilot walked in and asked most of the staff to leave. This was objected to by the engineer who said the flight had not yet been handed over to the crew for flying. But the pilot refused to pay heed and a fight ensued, delaying the flight.

Though pre-flight briefings between the crew are meant to break the ice, that doesn’t always happen, especially in the Asian culture where people don’t speak up in front of a senior. As one pilot said: “Every additional stripe is an additional responsibility.”

Senior pilots said that at least 30 percent of pilots would not make the grade for their poor skills and 10 percent for some kind of psychological issues. Unfortunately, some of them are training captains and could spoil the future of young pilots, so the latter keep quiet.

WAKE-UP CALL All this goes to show that airlines need to put in enough time and energy to know their pilots better, instead of simply seeing them as work horses who fly their expensive machines. Even the Germanwings crash exposes a series of failures at Lufthansa (the parent airline of Germanwings), the airline industry and its regulators in dealing with mental illness among pilots, said The New York Times recently. “And it shows how little the industry and its regulators have done to acknowledge and address the most extreme manifestation of those psychological strains: pilot suicide.”

While some airlines encourage peer support groups and anonymous reporting, these often don’t work as few people come forward.

Doctors who have good rapport with aviators, like they do in the IAF, should be trusted to provide inputs about a pilot’s response to stressful events such as marriage, divorce, death of a loved one, etc. “Such interactions can be beneficial, provided the airlines institute a mechanism for professional and social

interaction of aviators and their doctors on a regular basis. It is important to have 360 degree appraisal approach to monitor mental state,” said the expert. Airline sources also suggest that the DGCA could consider random screening of commonly used drugs of abuse among flight crew. There should be a clear policy on this and multiple accredited labs will be needed for this.

This is an important issue for airlines; they should consider the huge amount they would need to churn out if sued by families of crash victims. Under the 1999 Montreal Convention, airlines are liable for almost any crash. In order to escape this, airlines would need to prove that they are free of blame. As that is impossible, most cases are settled out of court. In fact, there are already reports about how the cost of insurance for aviation companies could rise if the DGCA goes ahead with mandatory psychiatric tests. If a pilot fails to clear it, it could lead to flight cancellations and claims.

However, passengers shouldn’t get alarmed. Only a miniscule percentage of pilots would be tempted to do what the Germanwings pilot did. And in India, with family support and social links much stronger than abroad, this is unlikely.

Nonetheless, it is better to be safe than sorry. IL

NO LESSONS LEARNT After the Mangalore plane crash in 2010, airlines were advised to employ aviation medicine specialists

INDIA LEGAL May 15, 2015

69

RELIGION/ Catholic Church/Sex Charges

BUYING A

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

By TK Devasia

P

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

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May 15, 2015

shown towards any nun in recent history.

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

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

Illustration: Anthony Lawrence

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

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

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

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

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

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

The congregation rejected both demands, but the Ernakulam diocese intervened INDIA LEGAL May 15, 2015

71

RELIGION/ Catholic Church/Sex Charges

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

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

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

“Anitha could not fit into the community.

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

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

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

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

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

How about a law to protect nuns?

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

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

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May 15, 2015

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

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

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

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

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

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

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

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

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

Christian denominations, does not allow its clergy to marry.

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

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

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

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

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

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

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

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

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RELIGION/ Catholic Church/Sex Charges

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

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

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

—Paul Zachariah, writer

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

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

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

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

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

going to set a precedent for anyone else in future.

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

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

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

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

Talk about courting trouble. IL

INTERNATIONAL BRIEFS

Assange causes judges’ exodus THE Commonwealth Law Conference in Glasgow saw an exodus of senior British justices when the organizers decided to invite Julian Assange to give an address through video conferencing, reports The Guardian.

Assange, who has been living the life of a fugitive at the Ecuadorian Embassy in London following his devastating revelations about the US establishment’s espionage network,

Indian subsidiary in legal tangle A GERMAN wind turbine manufacturing company, Enercon, is taking its Indian subsidiary, Enercon India Ltd (EIL), to the International Arbitration Court in London for wresting control from the parent company, reports www.rechargenews.com.

In the mid 90s, Enercon and Mehra Group of India had come together to form EIL. While the German company was to have 56 percent stake, the Mehra Group was given effective

Tiff over Falklands

control over its management. But gradually, the Indian partner started wresting control from Enercon, aided by favorable judgments from Indian courts. Enercon’s accusations of financial mismanagement and concealing financial figures went unheard in Indian courts.

Enercon pulled out of India in 2007.

The German press bitterly criticized the Indian legal system for not protecting foreign investors. But EIL continued to flourish. Despite rechristening itself Wind World India, it continues to use the Enercon label in some of its wind turbines.

Pak SC stays militants’ hanging

ARGENTINA has launched legal action against three British and two US firms exploring oil off the Falklands, further intensifying a bitter dispute between Argentina and the UK over this area. The two nations even went to war in 1982.

The firms facing legal action are Premier Oil, Rockhopper Exploration and Falkland Oil and Gas Limited from the UK and Noble Energy and Edison International from the US.

THE massacre of school children in Peshawar was followed by a spate of hangings in Pakistan, especially of terrorists. But now, the Supreme Court has stayed the hanging of six militants. This was following a petition filed by human rights activist Asma Jehangir.

The petition stated that a judgment is still awaited on the constitutionality of military courts which had convicted the militants. Further, if the militants are

Holocaust trial

Google’s monopoly

OSKAR Groning, a former Nazi guard at the Auschwitz extermination camp, has admitted to being “morally complicit” in crimes against humanity, and described how he watched a comrade smash a baby to death. He is probably the last Auschwitz guard to stand trial.

spoke about surveillance and security.

Several judges, who had already arrived at the venue beat a hasty retreat when they came to know about his speech. They objected to the fact that his name was added at short notice, and they weren’t kept in the loop about the change. The general sentiment was that it would be improper for them to attend a session where a speaker was a fugitive.

THE European Union has formally accused Google of forcing its own services and applications on its Android smartphone users, blacking out competition. This was reported by Al Jazeera.

Pressure has been growing in

hanged even before the apex court decides on the military courts, this will be a big lapse. It also questioned the treatment meted to militants in prisons.

Europe to combat the US search engine giant’s monopolizing practices, including arbitrarily pushing content that serves the company’s and the country’s interests, and to ensure that consumer choices are honored. Google could end up paying hefty fines, adding up to some $6 bn in this case.

INDIA LEGAL May 15, 2015

75

CASE STUDY/ Transgenders

When Rupesh became Rudrani Here is a personal account of the trauma and pain a boy went through as he fought for his identity as a woman. Today, “she� is working for the empowerment of transgenders and hijras

By Khalid Shah 76

May 15, 2015

Lalan Ram

R

UDRANI was born male, but was never comfortable with the gender assigned to her.

Her body had all the features of a boy, but as she grew up, she saw herself drifting to the feminine side. Her gender never stopped her from experimenting with her sexuality. As a young boy, she was expected to run, fight, play cricket and be loud just like her peers, but her heart was never in it.

Javed Sultan

While in school, she realized that wearing skirts was more beautiful than wearing kneelength shorts. Playing with dolls was more desirous than playing cricket and football.

She clearly was not fitting into the gender that society and her family were trying to mould her into. She grew up defying the male identity, while being completely unaware of transgender notions.

“In India, transgenders are identified with hijras. A hijra is someone who is born intersex,” Rudrani complains. But the term transgender actually means an umbrella of sexual

orientations and gender identities.

Researchers have found out that gender identities go beyond simply “male” and “female” and even beyond “third sex”.

“In our country, people associate gender with what is between the legs and not what is between the ears, ie, the brain. Life was difficult for me; I was not born intersex and I didn’t have a feminine body. I was left to choose between already existing gender notions,” says Rudrani.

Today, she heads Mitr Trust, an organization working for the empowerment of

MILES TO GO (From left) A glamorouslooking Rudrani believes that law alone can’t end the discrimination faced by her community

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CASE STUDY/ Transgenders

Rajya Sabha passes transgenders bill aimed to uplift community RAJYA Sabha on April 24 passed The Rights of Transgender Persons Bill 2014, with members from across the political spectrum joining hands to demand that the government take steps to bring the transgender community, facing social stigma and ostracism, into the mainstream.

The bill, moved by DMK member Tiruchi Siva, is the first private member’s bill to be passed in 46 years. The bill will now go to Lok Sabha where it will be debated and put to vote.

"The government must own this bill and pass a sensitive legislation for transgenders, whom people push away. It will give credit to the new government.

They have the same rights as you and me," Congress member MS Gill had said when the bill was introduced in March this year.

Photos: UNI

STARRY SHOW (Above) Conchita Wurst, the bearded transgender winner of the Eurovision Song Contest before her concert at the European parliament on October 8, 2014 (Top right) Kamala Kinnar, a eunuch, going to file her nomination from the parliamentary constituency of Varanasi in 2014 (Right) LGBT rights activist Lauren McNamara in San Francisco, a city where her community has deep roots

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May 15, 2015

transgenders and hijras. Along with two others, she co-founded a peer-based organization which takes the responsibility to protect themselves and their sexual partners from legal hassles, sexually transmitted infections and diseases.

However, its main motive is to protect the rights and dignity of the transgender population; advocacy efforts for the constitutional recognition of transgenders as equal citizens with equal rights and awareness against dis-

Anil Shakya

LEGAL SUPPORT (left) A landmark ruling by the Supreme Court last April recognized transgenders as the third gender

crimination, stigma and violence.

Housed in a multi-storey building in Uttam Nagar in Delhi, the office of the Mitr Trust is usually ringing with songs sung by transgenders. “Mitr is a friend of a minority of males, transgender women and hijras who can live with dignity and respect at least within the four walls of our office, if not in the outside world,” says Rudrani.

A

landmark ruling on April 15, 2014, by the Supreme Court recognized transgenders as the third gender. It said: “It is the right of every human being to choose their gender.”

This recognition brought legal relief to the community of around two million transgenders who live on the fringes of society in abject poverty. A majority of them make their living singing and dancing during weddings and auspicious occasions and indulging in prostitution.

However, legal recognition isn’t enough to end the discrimination faced by people belonging to Rudrani’s community. Even though the law recognizes the third gender, she cannot have an open sexual life as the archaic Section 377 of the India Penal Code sees gay sex as an “unnatural offence” punishable by 10 years prison.

Rudrani believes a law alone cannot end discrimination. “The Supreme Court recognition ends only the legal hassle. But the

What’s in a name?

A list of gender terms: BISEXUALITY: A person attracted to two sexes, but since there many genders, this definition is not totally inaccurate.

CROSSDRESSER: Someone who wears clothes associated with another gender. This term has replaced “transvestite”, which is now considered outdated and offensive.

DRAG: The act of dressing in gendered clothing and adopting that behavior as part of a performance. It does not indicate that person’s sexuality or gender identity.

GAYS: Men attracted to men. Colloquially used to include all LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex, Queer people).

GENDER IDENTITY: An individual’s internal sense of gender, which may or may not be the same as that assigned at birth. It is often confused with the sex one is born with, but they are separate concepts.

HETEROSEXUALITY: Sexual, emotional, and/or romantic attraction to a sex other than one’s own.

HOMOSEXUALITY: Attraction to the same sex.

INTERSEX: A medical condition involving congenital anomaly of the reproductive and sexual system. Such people are born with “sex chromosomes,” external genitalia or internal reproductive systems that are not considered standard for either male or female.

TRANSGENDER: An umbrella term for transsexuals, cross-dressers (transvestites), transgenderists, gender queers and people who identify neither as female nor male and are neither man nor woman.

TRANSSEXUAL: A person who experiences a mismatch of the sex they were born with and the sex they identify with. They sometimes undergo medical treatment to change their physical sex to match their sex identity.

TRANSVESTITE: Individuals who regularly or occasionally wear the clothing socially assigned to a gender not their own, but are fine with their anatomy.

Source: Gender Equality Resource Center, a University of California, Berkeley initiative

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CASE STUDY/ Transgenders

MAKING A MARK (Right) Isabella Santiago of Venezuela after she was crowned Miss International Queen 2014 in Pattaya on November 7, 2014

UNI

greater hassle is posed by the society itself which needs to be sensitized about transgenders. Go out and see how they are whistled at, commented on and made objects of ridicule on the streets of Delhi,” she says.

You’ve come a long way, baby!

G

1897: During the British Raj, authorities attempted to eradicate hijras by passing a law classing all eunuchs as criminals.

1998: Shobha Nehru, a transgender woman, was elected to the city council of Hissar.

2009: Election Commission denied the candidature of three hijras unless they identified themselves either as

male or female.

2011: Census shows the official count of third gender in India as 4.9 lakhs.

2014: Justice KS Radhakrishnan (left) declares transgenders as the third gender, saying: “It is the right of every human being to choose their gender.”

AUGUST 2014: Padmini Prakash (above) becomes India’s first transgender to anchor daily TV news; Delhi University has application forms introducing a column for third gender.

JANUARY 2015: A transgender woman, Madhu Bai Kinnar, wins the municipal election in Raigarh.

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May 15, 2015

rowing gender segregation is the main reason for sexual violence and discrimination. “Why do we have separate queues for males and females in Metro stations? Why do we want separate compartments for males and females? Why can’t all genders mix together with the security that nobody will be harmed,” she asks.

As for Rudrani’s parents, they have now given her the freedom to live her life as she wants to and with whomever she wants to.

She lives with her boyfriend in the same building as them, and says laughingly: “My mother calls my boyfriend ‘jamai’. While they have given me freedom, their only condition is that I live with decency and respect.”

Traditionally, when a person joins a clan of hijras, it is mandatory for him to acquire a female name and female identity. So Rupesh became Rudrani. “My parents still call me Rupesh. For them, I will always be their son.

But I am Rudrani. I am a woman who was born a man.”

It takes all kinds to make the world a colorful place. IL

W

1. A costermonger sells ….

A: Knick-knacks B: Utensils C: Fruits D: Bangles 2. Smaller word for “valetudinarian”.

A: Villager B: Sickly C: Magician D: Statistician 3. Fear of dogs.

A: Cynophobia B: Canophobia C: Pussyphbia D: Bonophobia 4. Diminutive for goose.

A: Geese B: Gosling C: Duckling D: Gooselet 5. Cause célèbre.

A. Main cause B. Biggest challenge C. Famous quote D. Famous case 6. Bullfight is also called ….

A: hornwar B: corrida C: Tauruso D: Spainish 7. Ticking of clock, hissing of steam but … of skirts A: rustling

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

By Mahesh Trivedi

B: swishing C: swashing D: crinkling 8. Drapetomania is the urge to ….

A: run away from home B: dress differently C: change curtains D: wash clothes 9. To blackball.

A: To ban B: To highlight C: To fail D: To die 10. Fuddy-duddy.

A: Quarrelsome B: Old-fashioned C: Fraudulent D: Childish 11. Tellurium.

A: An element B: Tank for turtles C: True story D: Long talk 12. One man’s meat is another man’s ….

A: malt B: pickle C: puzzle D: poison 13. He asked: WYMM? A: When You’ll Meet Me? B: Will You Marry Me? C: Where’s Your Mad Mom? D: Will You Meet Me?

ANSWERS 14. What’s :-X? A: Can’t meet B: Not coming C: Big wet kiss D: Boss is not there 15. Dogsbody.

A: Drudge B: Dog lover C: An NGO D: No such word 16. Respectful behavior.

A: Curtesy B: Courtsey C: Courtesy D: Curtsey 17. Used incorrectly.

A: Misused B: Disused C: Ill-used D: Unused 18. A contemptible person.

A: Braggart B: Hoofer C: Merchant banker D: Snoozy 19. What’s the correct spelling?

A: Dysentery B: Dysentry C: Dyscentery D: Disentery 20. To get one’s dander up.

A: To do one’s best B: To make last attempt C: To become angry D: To reveal intention

1. Fruits 2. Sickly 3. Cynophobia 4. Gosling 5. Famous case 6. corrida 7. swishing 8. run away from home 9. To ban 10. Old-fashioned 11. An element 12. poison 13. Will You Marry Me? 14. Big wet kiss 15. Drudge 16. Courtesy 17. Misused 18. Merchant banker 19. Dysentery 20. To become angry

Y L D R WO ISE

SCORES

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

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

Above 12—Bravo!

Keep it up! textdoctor2@gmail.com

INDIA LEGAL May 15, 2015

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PEOPLE / Nepal Earthquake LOST HERITAGE A man looks into his damaged house to recover belongings, in Bhaktapur. The quake killed over 3,000 people

BROKEN PIECES A collapsed house in Siliguri

PLEADING TO ALMIGHTY Women chant hymns during a prayer ceremony at a temple in Ahmedabad, for victims of the earthquake

SNUFFED OUT A temple bell amid the rubble SHATTERED RUINS People survey a damaged site in Kathmandu THE UNKIND JOLT The body of a victim trapped in the debris speaks a tale of deep sorrow

TRAUMA AND LOSS A woman mourns as her father’s body is prepared for cremation along a river

Photos: UNI Compiled by Kh Manglembi Devi

RNI No. UPENG/2007/25763

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

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