NDIA EGAL I L STUDENT PROTESTS Do they change the laws?
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MINORITY STATUS Will Jamia lose its lustre?
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JUSTICE MANJUNATH Victim of vendetta? 12
November 15, 2014
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STORIES THAT COUNT
INDIA’S INSTITUTIONS
Perilous Future
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Editor and parliamentarian HK DUA warns about the erosion of India’s three pillars of democracy, while veteran journalist FARZAND AHMED sees a dark future for the Right to Information 18
PLUS
BIKRAM VOHRA on Indian racism 30 RASHME SEHGAL on rising suicides 68 ALSO
MOO FOR ME Shantanu Guha Ray analyzes whether the Modi government’s cow policy is a gimmick or a new milk revolution in the offing 36
LETTER FROM THE EDITOR
INDERJIT BADHWAR
THE SUPREME COURT AND THE GOOD SAMARITAN
H
AVE you lost someone—a friend, a relative—in a road accident who could have been saved through timely intervention? Have you driven past—whether in your own vehicle, or riding public transportation—a body contorted with pain or writhing in agony in the middle of the road or lying in a ditch? Chances are, if you live and travel in India, you have. And chances are, as you read this, you will suffer a pang of guilt because you might have been in a position to save that life but you didn’t. Something made you into an uncaring spectator as you passed that still-alive human being. If it’s any comfort to you—and it really shouldn’t be—you’re not alone. There are millions just like you who have witnessed cases like that of five-year-old Om Gaikwad and his parents,
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Aparna and Mangesh, a few months ago, who cried for over an hour, pleading bystanders for help, after being hit by a bus. The entire family, including little Om, died due to the reluctance of bystanders to help them. This is just one case cited by Piyush Tiwari, one of thousands working for social and political transformation through Change.org whose petition drives help to reach a wider audience through this column from time to time. Piyush and his friends and those who have signed a petition to Health Minister Dr Harsh Vardhan, whom I know to be a caring and compassionate human being, apart from the fact that he is physician known for his untiring activism in conducting vaccination drives in Delhi, are pursuing a noble cause. The Law Commission of India states that 50 percent of those who die on Indian roads can be saved if they receive timely medical attention, including assistance from bystanders and passers-by. An astounding 70,000 lives can be saved every year. But in India, says Piyush, “most bystanders and passers-by choose to remain mute spectators due to prolonged legal hassles and severe inconvenience and intimidation at the hands of the legal system.” Even medical professionals are not spared of such legal hassles and intimidation. The Supreme Court of India has taken note of this: “Good Samaritans who come forward to help must be treated with respect and be assured that they will have to face no hassle.” That’s why Piyush has started a petition urging Dr Vardhan
The Law Commission of India states that 50 percent of those who die on Indian roads can be saved if they receive timely medical attention. An astounding 70,000 lives can be saved every year. to introduce a Good Samaritan Law in India. Writes a supporter, Abhay Hukku, of his own experience: “I am a youth of 21. Many a time, I have helped people who have met with accidents, major and minor both. I have to sometimes lie: ‘Well, I am a doctor…’ Though I know the basic rules and procedures of first-aid both in minor and major accidents, thanks to YouTube, the question here lies is why am I not able to say : ‘Yes I am a citizen of my corrupt INDIA but still am a human and I wish to help.’” He continues: “I was once questioned badly, taken to the police station when I helped two men in a road accident which happened between 9-9.30 pm and one of his fellow mates lost his life after 25-30 minutes of the accident. Everyone was busy taking videos and pictures. Nobody bothered to go further and help the guy. As usual, the police arrived late and so did the ambulance. There’s a saying, ‘nowadays a pizza arrives within 30 minutes guaranteed, but the ambulance…?’
I was in the police station facing questions from 11pm-2:30 am. My dad was calling me repeatedly. How could I pick up the call? Even if I did, how could I say, ‘Dad I’m in the police station…?’ When the word ‘police station’ arises, there’s a rush in your spine which hits your brain giving negative signals. “And because of this reason, no one wants to help anyone. Everyone wants to help if the tagline of the police ‘police is your friend, help us to help you’ means what it says. Gandhi said: ‘You be the change that you wish to see in the world.’” Several countries have laws to protect and reward Good Samaritans. India needs one urgently. According to the petitioners, the new law will protect and encourage Good Samaritans to help an injured person on the road and will include: Protection from legal hassles for Good Samaritans who help injured victims. Protection from legal hassles for medical professionals who immediately attend to the victim. Hassle-free procedures for investigation and evidence in police and court. Strict disciplinary and departmental action against public officials who coerce or intimidate a Good Samaritan. Guidelines to all hospitals to treat trauma victims and not to detain those who bring the victims. A system for recognizing and celebrating those who save lives. Piyush, this editorial is in support of your petition. It is my signature. Because I too wish to Be The Change.
editor@indialegalonline.com INDIA LEGAL November 15, 2014
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NOVEMBER 15, 2014
VOLUME. VIII
ISSUE. 05
Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editor Prabir Biswas 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
Cry, the beloved country
18
As we witness a steady erosion in our democratic institutions, HK DUA reminds us of the ideal that our country’s founding fathers had presented to us
CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Director (Marketing) Raju Sarin GM (Sales & Marketing) Naveen Tandon-09717121002 DGM (Sales & Marketing) Feroz Akhtar-09650052100 Marketing Associate Ggarima Rai For advertising & subscription queries sales@indialegalonline.com
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How RTI is tumbling down Barely a decade after coming into effect, the Right to Information Act is being paralyzed by politicians, bureaucrats and other vested interests. A shocking tale of treachery and apathy, told by FARZAND AHMED FOCUS
Skin-deep beauty, dark deeds Indians love to complain about racism in the West. But look within. Racism is ingrained in our own psyche. BIKRAM VOHRA shows us a mirror for a self-check POLICIES
Now, for the pastoral constituency The Modi government sanctions `500 crore for encouraging breeding of indigenous cows. SHANTANU GUHA RAY probes whether this is aimed at consolidating the BJP’s hold over farmers and cattle owners
24 30 36
License to operate
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Did Gaurav Gambhir use the residence of a sitting judge for business purposes? VISHWAS KUMAR probes EDUCATION
When homogeneity hurts
46
Jamia Millia Islamia was declared a minority institution three years ago. MEHA MATHUR assesses how this legal status impacts the ethos of the university STATES
Pound-foolish policies
Our judicial journey
58
Extracts from Constitutional Conundrums, an insightful book on constitutional and legal matters by V Venkatesan. Plus a review of the book by SANJAY HEGDE CONTROVERSY
Much ado about nothing
A faith called humanity
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A moving case of swap liver transplant had Hindu and Muslim families trusting each other ignoring religious differences. A report by SHOBHA JOHN CASE STUDY
Death wish
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RASHME SEHGAL delves into the psyche of the young generation which is increasingly prone to suicide
SPORTS
Bouncing back to form
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GAURAV KALRA writes that notwithstanding a lean patch, Virat Kohli will regain his glory
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RITU GOYAL HARISH describes how the skewed rules of the Maharashtra Industrial Development Corporation have contributed to water scarcity in the state BOOKS
HUMAN INTEREST
12
INDIA LEGAL probes whether the allegations against Justice Manjunath had any substance or was it a vendetta
GLOBAL TRENDS
Students of the world revolt
74
SIM TACK describes how student protests in various countries have shaped history
REGULARS
PROBE
Letters…..............................................................................................8 Ringside ..........................… ..............................................................10 Quote-Unquote ...............… ..............................................................11 Supreme Court..................................................................................14 Courts................................................................................................16 Is That Legal?....................................................................................78 Briefs .................................................................................................80 Wordly-wise .......................................................................................81 People ...............................................................................................82
Cover Design: ANTHONY LAWRENCE INDIA LEGAL November 15, 2014
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LETTERS Stop these beastly ways Your editorial in the October 31 issue was really an eye-opener. It’s heartening to know that the judiciary of the country is taking up the cause of animals. It enrages me to think how brutal humans can get in the name of religion. The vivid depiction of how animals face pain and torture while being sacrificed really moved me. It’s time people stopped these banal rituals and started understanding faith in all its spiritual dimensions. —Sandhya Gulati, Delhi
Discomforting questions
Shameful games I read the article Hope amidst Despair in the October 31 issue with great despair. The treatment meted to our boxer Sarita Devi at the event was shameful. Having put in so much effort for the medal, she was justified in feeling cheated and refusing the bronze. Did the authorities revisit the footage of the event and take the referees to task when she protested? And what was the Indian official contingent doing while she was suffering? I wish India Legal provides us an insight into international rules in various sports that can help sportspersons like Sarita Devi. —Swati Thakore, New Jersey
Even as I was reading the article Disowning the IS (October 31), a lot of questions cropped up in my mind. Reference to the 40-something Sally Jones dumping her two children to join the IS cause made me wonder what is it about Islamic ideology that makes westerners take up Islam and extremism with such vengeance? Then again, if proof of the pudding is in the eating, shouldn’t the followers of a faith strive to give a better proof, that of a peaceful society? And when Muslims say that the IS and other extremist outfits are not the true representatives of Islam, why don’t the moderates present a formidable front to oppose them? I strongly feel that members of all faiths should now come together to give out a message of peace and prosperity. —Gagan, Noida
It’s shocking!
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Thank you for the story, A Sniff of Trouble, (October 31). It is revealing for parents of teenagers. I never thought that a harmless whitener could be used for intoxication by children. How far will the present crop go? It is very difficult to parent teenagers and adolescents these days. They live in a fool’s world and by the time they realize various perils, it is too late. —Gopal Das, Delhi
Please email your letters to: editor@indialegalonline.com Or write to us at: India Legal, ENC Network, A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) - 201309
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VERDICT The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all. — HL Mencken (1880-1956)
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QUOTE-UNQUOTE
“The government has made an application which should have been filed by the criminals. I am amazed.”
“Connectivity can’t be just a privilege of the rich and powerful. It is a human right.”
— Ram Jethmalani, on the NDA government seeking changes in the SC order on money stashed in foreign banks. The Times of India
“I have watched more cricket than I’ve played. So there’s enough in this upper story that can be used before I forget it.” —Ravi Shastri, India’s new director of cricket. The Times of India
— Mark Zuckerberg, Facebook CEO and founder, on the need for more Internet access. outlookindia.com
“I have faith in the Kashmiri youth.... I don’t think they will be swayed by a violent organisation like the ISIS.” — Mehbooba Mufti, PDP president, on ISIS recruitment in India. The Tribune
“(I am seen) as a foreign object in the body politic... Nobody understands when somebody is trying to express a complex set of ideas...” — Shashi Tharoor, Congress MP, on being targeted by Kerala Congress over his support to Narendra Modi on Swachh Bharat Abhiyan. ABP News
“Eid is our celebration, Diwali is his (Modi’s)…The fact that he is giving up his Diwali celebrations at home to spend time with people here is more meaningful.”
“We (Malala and I) have to go a step further and work for peace in our subcontinent. For India and Pakistan, it is very important that our children are born and live in peace.”
—Omar Abdullah, J&K chief minister, on PM Narendra Modi’s decision to spend Diwali with J&K flood victims
— Kailash Satyarthi, Nobel Prize Winner for Peace, who shares the honour with Malala Yousafzai of Pakistan. The Hindu
"When Kareena and I married, there were similar death threats, with people on the Net saying ridiculous things about “love jehad”. We follow whatever religion or spiritual practice we believe in. We talk about them and respect each other’s views. I hope our children will do the same." —Saif Ali Khan, on love jehad. Indian Express UNI
INDIA LEGAL November 15, 2014
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CONTROVERSY/ justice manjunath
Much ado about nothing various allegations against justice manjunath had stalled his elevation as chief justice of the punjab and haryana high court. but a probe has found these false By India Legal Team in Bangalore
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F late, judicial appointments have become a hot potato with allegations of how they are being influenced by various powers that be. The latest victim of such a controversy has been Justice KL Manjunath of the Karnataka High Court, who was to be elevated to the post of Chief Justice of Punjab and Haryana High Court. There were media reports that he had heard a case where his personal interest was involved, apart from sundry charges against his family members. It stonewalled his appointment. Apart from this, two complaints against Justice Manjunath were sent by F Furquan, a RTI activist, to the president in October 2013. The then chief justice of India, P Sathasivam, conducted an inquiry and exonerated Justice Manjunath. Furquan had alleged that Justice Manjunath had not disclosed his assets to the chief justice and had assets that were disproportionate to his income. UNDER ATTACK Justice Manjunath is under attack for an order passed in 2005 by the Karnataka High Court regarding Vyalikaval House Building Cooperative Society Ltd v/s Bangalore Development Authority (BDA). It was alleged here that an order was passed by Justice
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Manjunath to favor a friend. In this case, BDA had cancelled the layout plan of the society on a complaint lodged by a 3rd party even without issuing notice to the society. Upon this, Justice Manjunath passed an order on July 5, 2005, in the presence of the complainant who had filed an impleading application, directing BDA to hear all the parties and then decide. It said: “Liberty is granted to the BDA to issue notice to the petitioner furnishing a copy of the complaint said to have been lodged against the petitioner-society and after giving an opportunity for the petitioner to substantiate its case, shall dispose of the complaint said to have been lodged against the petitioner on merits and in accordance with law.” But after examining the writ petition and order, legal experts say that sending back a matter to the authorities (in this case, the BDA), where the principles of natural justice had been violated was a normal practice and did not show any illegality. “One can say that the said order did not decide any title or declared any interest in favor of any one. It only asked the authority to stick to law while dealing with a complaint made before it.” The other allegations are that Justice Manjunath purchased a property in the name of his daughter who was not earning. This
VICTIM OF VENDETTA? Justice Manjunath of the Karnataka High Court
allegation was incorrect, say sources, as the property was purchased by selling an earlier site held by his daughter and the entire amount was paid by cheque. Also, Justice Manjunath had declared before the High Court that the developer/seller was one of his close family friends. FILED STATEMENT OF ASSETS Enquiries made by India Legal show that after taking over as additional judge of the Karnataka High Court in December 2000, he had filed statements of his and his wife’s assets, along with that of his daughter, son and mother-in-law. Five years later, in October 2006, he further declared the details of the site purchased by his daughter, which was then sold and also about another piece of land bought by his mother-in-law. Sources close to Justice Manjunath said that the allegations were made to ensure that he does not get elevated. Copies of the complaints were sent to all the judges of the Supreme Court and the chief justice of the Karnataka High Court. It seemed like a concerted campaign was on. Those who are sympathetic to Justice Manjunath’s plight say that on August 25, 2014, over 25 senior advocates, including two former advocate generals, an additional advocate general, three former chairmen of the
Those supporting Justice Manjunath claim that the campaign against the judge was probably at the behest of some members of the higher judiciary. Karnataka State Bar Council and the president of the Bangalore Advocates Association, wrote to the Chief Justice of India that they suspected that the campaign against the judge was probably at the behest of some members of the higher judiciary. They said that properties belonging to others had been falsely attributed to Justice Manjunath. They said that in his long years in the judiciary he did not have any allegations against him other than the one that had tarnished his image. In fact, when his elevation was objected to and stalled due to the allegations, legal fraternity of the state of Karnataka on September 26, 2014, abstained from court for a day showing their solidarity with Justice Manjunath. Enquiries showed that the allegation that the judge’s son, who is a practicing lawyer in the Supreme Court, owned a flat in Golf Links in Delhi was false as he stayed in a rented house in Mayur Vihar with three of his friends. There was an allegation that he owned a BMW 7 Series car. He actually drives a Maruti Swift. IL INDIA LEGAL November 15, 2014
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SUPREME COURT
Jayalalithaa out of prison fter spending 21 days in the Parappana Agrahara Central Jail in Bangalore, former chief minister of Tamil Nadu, J Jayalalithaa, was finally granted bail by the Supreme Court in the disproportionate assets case. Her other associates convicted in the case, Sasikala and Sudhakaran, were also given reprieve. After taking a dim view of the way the AIADMK chief earlier dodged the judiciary in the case, dragging it for 18 long years, a three-judge bench made it clear that the bail was being given to her on the condition that she would not take recourse to such means again. The court also took strong exception to the conduct of AIADMK members against the trial and high court judges for denying bail to her. The bench told her counsel in no uncertain terms that it will take up the case again on December 18 to see whether Jayalalithaa was ready with all papers for hearing of her appeal in the Karnataka High Court or not. If she fails, she goes back to prison, it ruled. All of them were released after submitting two sureties to the trial court in Bangalore.
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Illustrations: Aruna
Whither Ganga plan? laming the center for failing to submit its vision plan on cleaning the Ganga, the apex court said people should lose their jobs if they come in the way of the intended project. The court observed that industrial pollutants were being continuously released into the river, while pollution boards of states, through which the river passes, were looking the other way due to entrenched corruption. It also pulled up the center for allowing the post of the chairperson of Central Pollution Control Board (CPCB) to lie vacant for six months. It asked CPCB to explain what it had done to punish around 200 industries along the river, who were contaminating it. The court observed that there was a dire need for experts who had the ability to think clear on the project, with a vision. It lamented that the Ganga-cleaning case was hanging for the past 29 years before it without any solution. The center said that a roadmap will shape up by December.
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Security blues oliticians’ obsession with more and more armed policemen in their security squad caught the attention of the apex court, which said that leaders need to understand that it was the people were their true protectors, and not the gunmen. While hearing a case related to granting of Z category security to the leader of the opposition in the UP Legislative Council, the bench observed that the leader did not need the high security grade and it was a waste of public money.
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Right to life n a path-breaking decision, the apex court has brushed aside the basics of business dealing and accorded importance to right to life. Allowing the sugar mills of Uttar Pradesh to sell their stock in order to pay dues to cane growers, the court ruled that it didn’t matter if they, in the process, violated the agreement with the State Bank of India. It observed that the move would offer relief to farmers, who were driven to suicide due to debt. The mills had borrowed money worth `3,000 crore from the bank against the pledging of stocks, and the bank had the sole right over these in case the mills defaulted on loans. The Cane Growers Association had approached the Allahabad High Court with their grievances. The court had cancelled the banks’ rights over stocks and given the go-ahead to the sugar mills to sell their stocks. After the mills followed the high court order, the SBI then moved the apex court challenging the judgment.
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he Supreme Court has taken a stern view of the apathy shown by states and their police to get cracking on missing children. Incensed over the increasing number of such instances and finding that its directive to tackle the issue on a war-footing was being ignored blatantly, a three-judge bench asked the chief secretaries and director generals of police (DGP) of Bihar and Chhattisgarh to appear before it on October 30. While attending to a PIL filed by Kailash Satyarthi’s Bachpan Bachao Andolan that pointed out poor children’s safety in India, the bench even floated the idea of starting contempt proceedings against these chief secretaries and DGPs as they had neither filed FIRs nor submitted any information to the court. It said that non-compliant states will be not be spared, and it was time every state showed concrete results.
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Question of faith ai Baba followers’ hopes of legal retribution came a cropper as the Supreme Court refused to step in and pass any judgment on the “questionable” statements made by Shankaracharya of Dwarkapeeth Swami Swaroopanand against him. Saidham Charitable Trust had approached the apex court to ask the center to deter people from making objectionable statements against the seer and ensure that Sai Baba idols are not removed from temples, as urged by the Shankaracharya. The court made it clear that matters of faith were outside the purview of judicial intervention and dismissed the PIL. It, however, observed that the devotees were free to file a civil suit or criminal case against the Shankaracharya if they felt that his diktat infringed upon their right to worship.
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A fidelity check t would be next to impossible for a spouse to hide infidelity in case a child is born out of an adulterous relationship. The Supreme Court has upheld the validity of a DNA test of the child to find out whether such a relationship did exist. What makes matters worse for the partner under doubt is that he or she can’t refuse or resist such a test, as doing so will only make him or her guilty in the eyes of the judiciary. An apex court bench gave the judgment while supporting the Calcutta High Court order that asked for the DNA test. The court was approached by a man who claimed that his child was a result of an illicit liaison between his wife and another person.
A case for missing children
The apex court observed that the DNA test was the only way for the man to substantiate his allegation or for the wife to prove that she was being considered immoral by her husband for no valid reason.
INDIA LEGAL November 15, 2014
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COURTS
Probe against Yeddyurappa in land case
Cops hauled up for filing false cases
arnataka High Court has ordered an enquiry against former state chief minister BS Yeddyurappa in a land denotification case. It dismissed the Shimoga Lokayukta’s clean chit to Yeddyurappa and his son and MLA BY Raghavendra— both were accused of purchasing land through illegal means. The court was hearing a revision petition by B Vinod, a Shimoga-based advocate. Earlier, Vinod’s petition against Yeddyurappa was rejected by the Lokayukta court on the ground that he had not taken prior permission from the governor for prosecution before filing the complaint. However, since Yeddyurappa is no more the chief minister, Vinod argued in his review petition that no such prior sanction was required. He alleged that Yeddyurappa had acquired 69 acres of land near Hunasekatte village in Bhadravati taluk for a firm owned by his family members.
n additional sessions court in Delhi has come down heavily on two cops for filing false cases of gang rape and sodomy against a cab driver. It ordered registration of a case against the two Delhi police officials for implicating cab driver Lalit Ratawal in 2010 for committing these offences on three minors and four juveniles. Ratawal was exonerated by the court. The judge said that no law permits police officials to misuse their position and falsely implicate innocents. He also ruled that no prior sanction was required to register a case against the two cops. An FIR relating to the case was lodged on September 17, 2010. According to the prosecution, Ratawal used to ferry the kids from their residence in central Delhi’s Prasad
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Hypersensitive wife’s suicide he Madras High Court has ruled that in cases where a hypersensitive wife kills herself because of domestic problems, the husband cannot be prosecuted for abetting her suicide. The court set aside the ruling of a trial court that held K Obuliraj guilty of the same. The husband had reportedly beaten and scolded his wife for not sweeping the house. The Madurai bench of Madras court didn’t see any merit in the ruling of a Mahila Court that sentenced the husband to three years imprisonment. The judge said there must be direct proof to establish incitement and the husband could not be punished for merely ill-treating his wife.
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Illustrations: Aruna
Nagar to two schools in a private cab. The allegations against him were that he had taken them to a friend's house, where he sexually assaulted them and made videos of it. However, the court said that the forensic report and the phone records of Ratawal contradicted the claims of the victims and their mothers. It also observed that the premises identified by victims had no connection with the accused.
No grounds for divorce he Bombay High Court rejected the divorce plea of a Parsi man who sought annulment of his marriage on the ground that his wife professed a different religion. In his plea, he argued that his marriage should stand null and void because he had married a Hindu woman as per Hindu rituals. He argued that both of them continued to practice their respective religions and this should be grounds for annulment of their marriage. The couple got married in 1995. However, the court said that as he had filed his petition under the Hindu Marriage Act, he could not avail of its provisions as he was a Parsi.
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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
INDIA L EGAL Continuing fallout from Modi’s US visit
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Bhopal victims’ legal agony 24
Vishal Bhardwaj’s craftsmanship 78
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LEAD/ democratic institutions
CRY, the beloved country!
when one sees the breakdown of the three pillars of democracy— parliament, judiciary and executive—one can’t help but feel nostalgic about our founding fathers who kept the country above everything else By HK Dua 18
November 15, 2014
T
HE health of our democracy depends on the functioning of our constitutional institutions—parliament, judiciary and the executive—whether they have lived up to the lofty expectations of the founding fathers and served the country in meeting various challenges as it went about finding its way through the last 67 years. It will also be worth examining whether these organs of the state are equipped for meeting the challenges at a point when the country is poised for taking major strides to emerge as a power to reckon with during the next 30-odd years. FOUNDING FATHERS Our constitution was framed by wise men and women who steered it through the constituent assembly as they did the freedom struggle. They dreamt high and tried to bequeath to posterity their aims, ideas, and these vital institutions for the governance of the new nation. Have these institutions lived up to their hopes and proved their fears and trepidations wrong? Such questions need to be examined so that we can correct the mistakes we may have committed. Or, have we been walking on the right path or got deflected from it? Or do we need to carry out a course correction during the next few years? For the first 25 years, India and the three organs of the state mentioned above did well. Despite the post-Independence uncertainties facing the country and the trauma of partition, influx of refugees and an immediate war over Kashmir, its major institutions stood up to the challenges. During the later years, however, these organs of the state have been increasingly coming under strain. Public concern about the functioning of the parliament, judiciary and executive has naturally been steadily growing, and lately, some sections of society have been questioning the validity of these institutions in the present times. Some of them want the constitution to be replaced by a new charter.
Public concern over their functioning is understandable. Personally, I believe it is not the constitution that is to blame, but the way we have tried to use it in states and at the center for partisan ends. Why blame the charter and not those who willfully ignore its underlying constitutional morality. The founding fathers wanted to ensure we remain united as one country and at no cost should unity be allowed to come under strain. It should also be a democratic country where every community—irrespective of religion, region, language, race—will have equal rights. Also, there should be universal
HALLOWED PAST (Facing page) Jawaharlal Nehru addressing the constituent assembly in parliament, on the eve of India’s Independence (Above) Unlike the past, MPs and MLAs today have no respect for parliament, and resort to frequent and unruly disruptions
INDIA LEGAL November 15, 2014
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LEAD/ democratic institutions
“The first thing…is to hold fast to constitutional methods of achieving our social and economic objectives... we must abandon the bloody methods of revolution.” —Dr BR Ambedkar
BLOT ON DEMOCRACY The Emergency in 1975 was the first major blow to the constitution of India
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adult franchise, where every citizen, rich or poor, educated or otherwise, has equal rights to vote. MEN OF VISION There were major challenges confronting the leaders who had spent effective years of their lives in British jails. But they were men of great vision, steeped in idealism, and determined to come out with a constitution befitting a great country. They came from different backgrounds and often, their differences came to the fore during debates in the constituent assembly. They thrashed out their differences in open debates. They resolved even fundamental issues while adopting the constitution and evolved the historic document based on national consensus. Jawaharlal Nehru was keen on evolving a modern nation state, Sardar Patel thought that whatever the cost, India after partition cannot be allowed to fall apart. They all
agreed to have a parliamentary form of government based on universal adult franchise, independence of the judiciary and an executive that was expected to be accountable to the people through parliament. The three organs, parliament, the judiciary and the executive, thus, emerged from the labors of the constituent assembly as the three main pillars, which were to ensure that India will be a democratic country, united, secular and marching towards a new destiny. To give meaning to democracy, the founding fathers provided for the Directive Principles of State Policy and also sweeping Fundamental Rights that have remained the bulwark of the basic rights of the people. The makers of the constitution were aware of the challenges that would arise in a diverse society, full of divisions of caste and class, social and economic inequality and the new expectations that Independence generated. There was a fear that democracy itself might turn out to be fragile unless the constitution, and the three organs it had created, functioned on the principles laid down for them in the constitution. ABANDON REVOLUTION Dr BR Ambedkar and his colleagues were aware of these challenges. In his last speech in the constituent assembly which adopted the constitution, Dr Ambedkar as chairman of the drafting committee said: “If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing…is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for those unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.” He went on to say in what was one of his most remembered speeches: “On the 26th of
January, 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life, we will have inequality. In politics, we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else, those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up. “If hereafter, things go wrong, we will have nobody to blame except ourselves. There is great danger of things going wrong. Times are fast changing,� said Dr Ambedkar.
He was clear in his warning. But we as a nation did not listen to him. Constitutional institutions need continuing nurturing for growth and strength in their sinews. Unfortunately, after the first 25 years, we forgot about the basics of constitutional morality and began fiddling with the essentials of constitutional institutions. The Emergency was the first major blow to the constitution, and then, the demolition of the Babri Masjid. The damage done to the constitution by these two major blows has not been fully undone. These two post-Independence events led to the widespread impression that the statute and its legal and moral underpinnings are no longer sacred. TURF WARS I can understand occasional frictions and turf wars between the three organs in a democracy, despite the separation of powers provided in the constitution. Lakshman rekhas, at times, get blurred in day-to-day
COMMUNAL DISHARMONY The Babri Masjid demolition in 1992 violated the rights of the Muslims
INDIA LEGAL November 15, 2014
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LEAD/ democratic institutions
The constitution came into being in 1950. But we forgot the basics of constitutional morality and began fiddling with its institutions after the first 25 years.
DIABOLICAL MOVE The Mandal protests in 1990 exposed the designs of the politicians to manoeuver caste dynamics for political gains
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work. But these problems are inherent in a growing democracy and can be sorted out. What I cannot understand, however, is why constitutional institutions should not do their duty prescribed in the constitution. Parliament, for instance, failed the people when Emergency was imposed in June 1975 by not protecting the rights of the people. Fundamental Rights were thrown out of the window, press freedom was suppressed, lakhs of political workers were sent to jail, courts came under pressure, citizens felt choked. Also, when Babri Masjid was demolished, the religious rights of the minority community were rudely violated. So were the moral principles woven into the constitution. Over the years, parliament has lost respect among the people. The best of leaders, men and women, people like Jawaharlal Nehru, BR Ambedkar, GB Pant, Jagjivan Ram, Hiren Mukherjee, Indrajit Gupta, Atal Bihari Vajpayee, Acharya Kripalani, Dr Ram
Manohar Lohia, Madhu Limaye, Nath Pai, and HV Kamath were some of the ablest parliamentarians who represented the people with selfless dedication. They, too, had political differences, but they treated parliament with reverence. Not now. Disrupting parliament, going into the well of the house and displaying placards have replaced reasoned debate and discussions and policies of the government. Often, Question Hour has been dispensed with, further diluting government’s accountability to parliament. HALF-HEARTED APPROACH The time lost because of frequent disruptions is made up by passing legislation without much thought and discussion. At times, vital laws and budgetary grants are passed without debate and often, voting takes place in the raucous commotion. After centuries, democracy comes to a country and a parliament comes into existence. It is the job of those sitting in the opposition benches to oppose the government in parliament by parliamentary means, and outside, by mobilizing and educating people and at times, with peaceful protests. But during the last few years, we have seen in parliament, as also in state legislatures, that they are fighting parliament—and not the government—by disrupting it. They have chosen “to wreck it from within”, with the result that people have lost respect for parliament and state legislatures and also, politicians as a class. Also, the sight of criminals getting elected to parliament and assemblies and law-breakers making laws is edifying neither for parliament nor India’s democracy. The Supreme Court, the Election Commission and political parties have not found effective ways to block the entry of criminals into parliament and state legislatures. They do not realize that this can lead to the mafia hijacking the entire political system. Kachehri is the last hope of the common man, but the state
of the judiciary is causing a great deal of worry to the people. CORRUPTION IN COURTS The weight of over three crore cases pending in lower courts, high courts and the Supreme Court can only delay the delivery of justice for years. There are reports of growing corruption in courts at different levels. Justice can be bought and sold in many parts of the country. Even the apex court is increasingly getting into the news for the wrong reasons. I won’t be surprised if the Supreme Court sooner or later strikes down the recent Constitution Amendment Bill passed by parliament for setting up the Judicial Appointments Commission. The Judicial Standards and Accountability Bill is still pending before parliament and can add to the friction between the government and the judiciary. The judiciary feels that the executive is always keen to cut into its independence, guaranteed by the constitution. The Supreme Court, however, has already come out with a landmark judgment in the Keshavanand Bharati case to lay down that parliament cannot pass any law that violates the basic structure of the constitution. The court has not defined the basic structure, but has often thrown the hint that independence of the judiciary is a part of this basic structure. It can use this as a shield to protect its independence against any encroachment by the executive or parliament. INDIFFERENT ADMINISTRATION The less said about the executive the better. Administrations in states and at the center have not worked with the kind of efficiency and commitment required of them after Independence. The bureaucracy in India is bloated and the red tape too long to permit quick decision-making and delivery to the people. Exceptions apart, the administration is distant from the people, indifferent, and callous. Elections are held and political rulers change in the states and at the center, but the attitude towards the people does not change. Civil servants are happy to be in cahoots with political masters, and serve their interests and their own, unmindful of the interests of the people whom they both are sup-
posed to serve. The nexus between political masters and the bureaucracy is a major reason for slow progress in different fields. This nexus is also the reason for corruption that has over the years spread like cancer in the body politic. The rich and the powerful and the peddlers of influence can get things done according to their wishes, while the poor, the illiterate and all those who have no influence, continue to suffer. The local mafia in many states also knows which string to pull and when to use the muscle. The “Rule of Law” in many parts of the country remains a subject for only classroom discussion. No easy explanation is available from the leaders of different political parties as to why after 67 years of Independence we have crores of people who are illiterate, without primary health care, safe drinking water, jobs or a little house for shelter. It has taken 67 years to wake up to the need for toilets in the country. The accident of birth still decides the fate of a child. Birth in a dalit or in a tribal family leads to life-long suffering because of the unrelenting weights of social and economic inequality. This is despite the constitution of the republic, which provides equality before law and equal opportunity for all. It looks like it will take several decades before the constitutional mandate can be translated into our daily lives. Let all of us work for an India where the poorest of the land, “the loneliest and the lost” in Gandhiji’s words, does not feel lonely and lost. It is possible to wipe out his or her tears, if we all work for a country that cares. The constitution cares. Do we? IL
ATTEMPT TO SECEDE The Khalistan movement in the 1980s put a question mark on India’s unity as envisaged by the constitution
— The writer is an eminent journalist and Member of Parliament INDIA LEGAL November 15, 2014
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LEAD/ democratic institutions / right to information
TOUGH ACT TO FOLLOW
ever since it was introduced in 2005 to ensure transparency, the legislation has left activists at the mercy of government servants who want to protect their turf By Farzand Ahmed
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ECENTLY, the Central Information Commission (CIC) gave a miss to the Right to Information (RTI) Act’s tenth anniversary celebrations. The Reason: The Modi government forgot to appoint a Chief Information Commissioner. So, even as the government promises good governance, transparency is given the go-by. And this is not just at the center, but in states too, where efforts are being made to weaken the law. RTI was the strongest weapon available to people to make the bureaucracy and politicians accountable. But, the attitude of governments and bureaucrats towards those seeking information has made these individuals prone to several risks. EMPTY WORDS? Anupama Jha, regional consultant, Trace International, and former executive director, Transparency International India, says two
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FORCED TO REVEAL (Facing page) The UPA government was embarrassed by questions being asked about the DLF-Robert Vadra land deal due to RTI; (Left) An RTI protest for Lokpal Bill
anti-corruption bodies in India, Central Vigilance Commission and CIC, are headless. “Prime Minister Narendra Modi gave a catchy slogan—“Make in India”—and invited industrialists and entrepreneurs from abroad to come and invest here. How will foreign companies come and invest unless the government ensures good governance through transparency and makes India corruptionfree,” she asks. Sadly, information seekers are often at the receiving end of the anger by people in high places. They are either harassed or killed. According to data collected by the Commonwealth Human Rights Initiatives, in the first eight years of RTI in India, 32 information seekers were killed and there were 251 cases of them being harassed, attacked and mentally tortured. Data reveals that Maharashtra tops among states with the largest number of murders and attacks—nine and 53 respectively—due to RTI. It is followed by Gujarat with three murders and 34 attacks. In fact, on October 17, 2014, the governor-ruled Maharashtra issued a directive in the form of a government resolution, asking all departments and offices not to provide any information under the RTI Act if it “does not constitute any public interest”.
RTI victims SHIV PRAKASH RAI The 56-year-old social activist filed nine RTI petitions seeking information about implementation of a solar light scheme in the villages of Buxar district. The district collector resisted it. Rai kept insisting. To his utter surprise, one day he received a call from the collector’s office asking him to come there. When he went, the collector gave Rai nine blank sheets of paper and asked him to write that he had received the information he wanted. Rai refused. The collector immediately got an FIR filed against him and Rai was jailed for 29 days. As the matter became serious, the investigation was handed over to the police superintendent who found the charges false. The case was withdrawn and Rai released. SHEHLA MASOOD The 38-year-old Bhopal-based activist was killed allegedly by the forest mafia. Shehla had filed a number of RTIs against the mafia. She was also fighting for
transparency and good governance, women rights and police reforms. She constantly lived under threat. However, her killing acquired a romantic twist when investigators linked it to a woman interior designer Zahida Parvez, who was obsessed with a BJP MLA. Zahida didn’t like Shehla’s relations with the MLA and reportedly hired the killers. Zahida, along with others, was arrested, while Shehla was posthumously awarded for her relentless crusade against corruption. SHASHIDHAR MISHRA The cold-blooded killing of street vendor, journalist and RTI activist Shashidhar Mishra in the interiors of Bihar in 2010 was the beginning of the killing of six information seekers in the state. Mishra was preparing notes for filing an RTI application to expose corruption at the panchayat and block level. On the night of February 16, 2010, as he tried to enter his house in Phulwaria, two assassins shot him dead.
INDIA LEGAL November 15, 2014
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LEAD/ democratic institutions / right to information
Interpretation of maladies
T
Kolkata HC, four; Mumbai HC, 22; Punjab & Haryana HC, 21; Madras HC, 10; Goa HC, two and Karnataka HC, two.
observation was made without noticing Section 6 (2) of the RTI Act, which says that an applicant is not required to give any reason for making the request.
As per statistics compiled by the Pune-based Yashwantrao Chavan Academy of Development Administration, while the SC has so far passed 16 orders in connection with RTI, the Allahabad HC has passed three; Andhra Pradesh HC, five; Delhi HC, 29; Gujarat HC, four; HP HC, one; Jharkhand HC, two; Kerala HC, six;
However, some of these orders have been confusing and contradictory and were withdrawn after a hue and cry was raised. In September, the Madras HC observed that a person seeking information must disclose the purpose. This caused alarm among experts and activists. Shekhar Singh, an expert on RTI law, said the order was not only violative of law, but of an earlier SC order which had held that RTI was a fundamental right. Within a week, the HC withdrew the order, admitting that its
The SC too has withdrawn certain contentious orders. Take the famous Namit Sharma Vs Union of India case in early 2013. Here, a two-member SC bench ruled that central information commissions as well as state information commissions (SICs) should be headed by retired or serving judges. This led to many SICs suspending all hearings sine die. This ruling was next to impossible to implement, but many also felt that the judiciary was trying to enter into the territory of parliament. The
HE Right to Information (RTI) Act is often described as a document next only to the constitution. While the constitution has had 98 amendments in the last 64 years, the RTI Act has faced more than 100 interpretations by the Supreme Court (SC) and various high courts (HC).
RTI CRUSADERS (Left) RTI activist Shehla Masood was killed in cold blood; Shiv Prakash Rai (facing page, second from left) of Nagrik Adhikar Manch went to jail for using RTI to expose solar lights scam in Buxar
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While government officials say this is meant to restrict those misusing RTI, activists are up in arms, describing it as a move to weaken the RTI law. In Bihar, between 2008 and 2013, six RTI activists were killed. And Delhi, Bihar, Uttar Pradesh, Haryana, Andhra Pradesh and Karnataka saw 10 attacks in eight years. The attempt to curb the use of RTI has become so bad, says Shiv Prakash Rai, 56, of Nagrik Adhikar Manch, that people are simply not asking for information, fearing for their lives. Rai was jailed for 29 days in 2008 for exposing the solar lights scam in Bihar’s Buxar region. Incidentally, RTI was the result of a prolonged struggle by people at the grassroots level. It was finally born as part of the Fundament Rights in 2005; parliament enacted the law on October 2005. But what started with great promise has floundered due to multifarious reasons. SHAKE THE SYSTEM Activist Dhananjay Jha in Goraul in the interiors of Bihar’s Vaishali district, says that information commissions are stuffed with retired bureaucrats. How can one expect a former babu who has spent 35 years hiding facts and remaining aloof from public, be
government and civil society challenged this order, leading to the SC withdrawing it, admitting a “mistake of law”. The bench also concluded it was ultimately “for parliament to consider” whether an appointment required judicial experience or not. On the other hand, another SC order was used by many information commissioners and public information officers as an excuse to delay or deny information. In the famous CBSC Vs Aditya Bandopadhyay case (9.8.2011), the SC ruled that the nation doesn’t want a scenario where 75 percent of government staff spends 75 percent of their time in collecting and furnishing information to the RTI applicant instead of discharging their duties.
expected to help petitioners get information, he asks. Jha, too, has faced threats and his father was bashed up because he asked for information about government ration shops. Goons hired by a PDS shopkeeper even tried to kidnap his children, whereupon Jha sent his family into hiding. He finally got relief after the media highlighted his case. In the initial years, RTI was a strong weapon in the hands of people as the CIC focused its attention on political parties. A full bench of the CIC, headed by a no-nonsense ex-IAS officer, Satyananda Mishra, on June 3, 2013, took a historic decision by bringing the all-powerful political class under the purview of RTI. When political parties started protesting, the then prime minister, Dr Manmohan Singh, asked them to promulgate an ordinance to keep them away from the purview of the RTI Act. But it didn’t help. Parliament, then, tried to nullify the decision through an amendment, but in the face of stiff resistance from NGOs and civil society groups, the matter was referred to a parliamentary committee. The full bench of the CIC, while penning the landmark order said: “... we hold that INC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the central
Action time for center!
The Modi government has finally woken up from slumber as far as appointing a chief information commissioner (CIC) is concerned. The Department of Personnel and Training has invited applications for the post till November 24. The Central Information Commission has been headless from August 23. However, breaking away from convention, the center has decided not to promote the seniormost information officer in the central information commission for the job. The decision to appoint CIC has come after concerns raised by an array of activists on the government’s disinterest in appointing information commissioners and CIC. Some of the activities and former information commissioners also shot off letters to the president and the prime minister on this issue.
Farzand Ahmed
government under section 2(h)(ii) of the RTI Act. The criticality of the role being played by these political parties and the nature of duties performed by them also point to their public character, bringing them in the ambit of Section 2(h). The constitutional and legal provisions discussed herein also point towards their character as public authorities.” According to this full bench, political parties have been provided land in Delhi by the government for setting up offices valued at INDIA LEGAL November 15, 2014
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LEAD/ democratic institutions / right to information
What other countries do
After successful implementation of RTI Act 2005, other countries have followed suit and brought in laws that look like the Indian version Pakistan: Old wine in new bottles? Pakistan was the first country in South Asia to have passed the Right to Information or Freedom of Information (FOI) Legislation in 2002. It was promulgated by General Pervez Musharraf, but didn’t have the senate’s approval. It was aimed at silencing international hostility and to cover up for the lack of democratic norms. The law was more exclusive than inclusive. However, a new Right to Information Bill 2013 patterned on India’s RTI, is in place, with identical sections. Yet, the media said people were unhappy. The Express Tribune had an analysis of the RTI Bill, headlined: “More to hide than reveal”. According to reports, bureaucrats in provinces were resisting its implementation. And in 87 percent of the cases, authorities did not respond to requests for information. RTI has miles to go here. Bangladesh: Culture of Fear The law came to Bangladesh late—on March 29, 2009. It earned appreciation from all quarters, yet had problems: the mindset and
culture of fear. Tahmina Rahman, director for Bangladesh and South Asia, Human Rights, was quoted as saying: “We are trapped in a culture of fear.” People don’t feel they have a right to go to government offices, so they lack the courage. This was reflected in the fall in petitions seeking information—while there were 25,410 requests for information in 2009, it dropped to 11,722 in 2013. Authorities and NGOs say a lot has to be done to educate the people to use the transparency law to ensure good governance and to train the bureaucracy to cooperate with the petitioners. Nepal: Himalayan Task Nepal has a unique mindset and social background. Democracy came in 1990 after over 200 years of royal rule. RTI became a weapon in 2009 after the government framed regulations and implemented it. There is a national information commissioner to oversee RTI’s implementation. Yet, till 2013, there were only 300 cases filed to press for information. The government in Nepal was more interested in enacting the law than implementing it. Other countries Sri Lanka could not enact any law on information rights due to the prolonged civil war. Bhutan changed from monarchy to democracy in 2008. The king brought in fundamental changes in the political framework. The constitution too was clear: Bhutanese citizens had the right to information.
`2,556 crore. They also got other benefits, such as free airtime on Doordarshan. EMBARRASSING CASES The reason for the government wanting to weaken the Act was that it was causing a lot of embarrassment. Here are some cases: The CIC asked Pratibha Patil, the then president to declare her assets; the government was forced to disclose the then finance minister Pranab Mukherjee’s note on the 2G spectrum case, and the Robert Vadra land deal in Haryana was being questioned through RTI. What made things worse was Manmohan Singh’s sugar-coated advisory to CIC during its annual conferences in Delhi, which shocked activists and Mishra. Here’s what he reportedly said: * October 15, 2011: RTI needs a critical view....it should not adversely affect the “deliberative process” in the government. This was said in the wake of the 2G scam. * October 12, 2012: There were concerns about frivolous and vexatious RTI applications “that invade personal privacy”. He said this in the wake of an RTI expose about the
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nexus between Robert Vadra, DLF and the Haryana government. The states, too, were not forthcoming and tried to weaken the law, leading to mounting cases in commissions. A study by RTI Assessment and Advocacy Group and Samay-Centre for Equity Studies in collaboration with the National Campaign for People’s Right to Information, paints an alarming picture of information commissions across the country. The collective backlog in 23 commissions was 1.98 lakh cases as on December 31, 2013. The maximum number of appeals and complaints were pending in Uttar Pradesh (48,442), followed by Maharashtra (32,390) and the Central Information Commission (26,115). The report indicated that if an RTI petition was filed in Madhya Pradesh today, the appeal would come up after 60 years, while in West Bengal, it was a 17-year wait. In Rajasthan, the appeal would take over three years, while in Assam and Kerala, it would be two years. Clearly, neither the center nor states are taking RTI seriously. How about some transparency here? IL
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FOCUS/ indian racism
India’s malicious melanin factor while indians complain about racism abroad, it is alive and kicking here too. see the way we colored people treat those who are dark-skinned, whether they are our own or from other countries By Bikram Vohra MARIA is a pretty girl, What you call a bit of awright, In the shadows, you ken see She’d almost pass for wite (sic)
I
T was in Cape Town that I read this observation, scrawled on a wall near the Sunday jetty entrance. My friend and poet Ernst, known in those days as a Cape Colored, pointed it out to me. It doesn’t change, does it, he said, not even in the new South Africa. We have the same problem in India, I said, we hurt ourselves with equal dexterity. He would not believe it, said I was making it up, just to keep the conversation going. I said, in India, we start young, we tell kids not to go in the sun, especially if they are girls, we tell them no one will marry you if you are dark. I paint him this verbal picture of millions of little girls running scared, rubbing their tender skins like an army of Lady Macbeths washing, washing, washing to rid themselves of the tan, otherwise, it is straight to a life on the marital shelf.
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He laughs because he thinks I am being funny. I tell him it is more tragic than he thinks because, when it isn’t legalized, the texture of prejudice can be far more insidious. Siblings are compared, the fairer brother or sister is extended privilege, often unspoken but always there, the other one, she’s a nice girl. Just a bit on the dark side. INSIDIOUS PREJUDICE A brown and black nation using nicknames based on color—Inky, Blackie, Hubshi, Kaloo—a generation of teenagers spending pocket money on whitening creams that promise you a lovelier tomorrow, don’t you want to be fair and sunny and good-looking, fathers with marriageable daughters tossing in bed with worry and paying `22 per column centimeter for the classifieds section where their daughter is sanitized in skin color, a sort of wheatish complexion, the deliberate double “ish” a ringing testimony to the depth of the pigment. Which genetic forefather infested our family tree? Pencil companies selling crayons in which the light pink color is called “flesh”. In today’s liberal India. Fair babies are better looking than dark babies, knead them with dough and rub the flipping pigment out, apply bleach, but get the melanin before it gets them. I tell him that fair Indians are about as bad as the most racist Afrikaners were and if an Indian married a black American, the average middle class Indian family would curl up and die in a corner of their home. I said it happened to a friend of mine and he did not tell them whom he had married, so at Mumbai airport, the family having resigned themselves to sonny boy having plighted the troth with an American rather than one of their own creed, sought sanctuary in the fact that there was some tangible social significance to being a westerner. They all dressed up and fetched up at flight time and suddenly, this gorgeous, bronzed black American girl flung herself full-length on the arrival floor, having been informed by her husband that Indian brides did this sort of thing when meeting their in-laws. The in-laws were horrified. They were deep into catatonic shock. How could their son do this to them?
I paint this verbal picture of millions of little girls rubbing their tender skins like an army of Lady Macbeths washing, washing, washing to rid themselves of the tan. I tell him the tragedy is the couple stayed five days of their one-month homecoming. The neighbors fell over with glee. THIS AIN’T FAIR I change tack and tell him how cruel it is, how lovely human beings, especially girls, are victimized in little ways and not so little ways and how, fairer progeny somehow get a better break on things. Even jobs. Fairer people just seem to be more visually acceptable. They sell the idea on TV. Famous film stars underscore your chances if you are fair-er. Aunts never tell them don’t wear green, you are too dark. Relatives don’t tease them and leave them introverted and bewildered and hurting. Friends don’t nickname
DARK DEEDS (Facing page) An advertisement of a popular fairness cream that equates goodness and success with fairness; (above) A racial attack on a group of Africans in a Delhi Metro station in September, 2014
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FOCUS/ indian racism
Fair Indians are about as bad as the most racist Afrikaners were and if an Indian married a black American, the family would curl up and die in a corner of their home. BOLD STAND Actor Nandita Das has taken to social media to popularize the “Dark Is Beautiful” campaign
them with spearing labels. Their self-esteem does not lie there mangled by insensitive and endless commentary. I tell him we spend a lot of time slagging off racism elsewhere. And even when we learn of our history and the hurt we have caused, we pretend not to hear it. I once had a good friend who was Ugandan. Whenever we went out together, shopkeepers, waiters, attendants, cab drivers would have that “you must be getting it” sneer on their faces. She was a highly talented expert in nuclear medicine. Sure, we are afraid of what we don’t know and the prejudice is deep-rooted. Don’t go in the sun, no one will marry you. From childhood they warn us, they tell us that the fair shall inherit the earth, never mind the meek. Will no one rid me of this pigment, a million Lady Macbeths rubbing at the damn spot. PAVLOVIAN EFFECT Part of it is subliminal. Language. Blackmail. Blackguard. Black-heart. Black deed. Brains whitewashed, the whole Pavlovian effect, see even the words reflect negatives. Yeah, but
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who made up the language? Black market. Black mark. Black is the poor, the servants, the servile, the bottom rung, hence the prejudice. The whole nine yards of inferiority. We pontificate endlessly about being antidiscrimination and we discriminate the most. When the Commonwealth Youth team came to Delhi, all the whites were invited to Indian homes. The two blacks were invited to a coffee shop. Our most famous jail is called Kala Pani. In Gujarat, there is a village called Sirvan, where descendants of Africans have lived for centuries, but it rarely gets mention and its inhabitants live on the outside of Gujarati society. Most of India is unaware of this sociological anomaly. They are still referred to as Habshis (from the city of Habsha in Ethiopia) and it is not a pleasant reference. Even Mahatma Gandhi had this problem with color. In a Great Soul: Mahatma Gandhi and His Struggle with India, a 2011 biography of the Indian leader by Pulitzer Prizewinning author Joseph Lelyveld, the quotes are clear indictments. Gandhi was a diehard supporter of India’s Hindu caste system, and allegedly, would never mix with a lowly group or caste, and Lelyveld lays out Gandhi’s unedited views: “We were then marched off to a prison intended for Kaffirs [offensive term equivalent to the n-word],” Gandhi complained during one of his campaigns for the rights of Indians settled there. “We could understand not being
classed with whites, but to be placed on the same level as the Natives seemed too much to put up with. Kaffirs are as a rule uncivilized— the convicts even more so. They are troublesome, very dirty and live like animals.” A contribution is made by racial profiling. It is a white man’s world. He wins the battles and the war is nowhere near over. The colonial rule perpetuated the chasm. Hollywood stereotyping has added to it. Pimps are black. Crooks are black. Drug peddlers are black. Black people are aggressive, they will hurt us so let’s hurt them first. They are criminals by perception. Even India’s cinema industry equates villainy with dark skins. SKIN DEEP Much of it is ignorance and pre-conceived notions of who is what. So insidious sometimes that even colored people “suspect” other colored people. Commercializing skin lightening products and using advertising to make them synonymous with success have an insidious impact on the mind. The colored are made to feel inferior. Harvard professor Jennifer Hochschild says it brilliantly: “Skin color is associated with individuals’ preferences as well as their outcomes. With some exceptions, most Americans prefer lighter to darker skin aesthetically, normatively, and culturally. Film makers, novelists, advertisers, modeling agencies, matchmaking websites—all demonstrate the power of a fair complexion, along with straight hair and Eurocentric facial features, to appeal to Americans. Complexion and appearance are also related to how voters evaluate candidates and who wins elections. “Given that skin color is connected with attitudes and life outcomes in myriad ways, one would expect it also to be associated with political beliefs and identities. To our knowledge, almost no one has examined this expectation. We did so, and found a surprise: skin tone seems almost entirely unrelated to the political views of ordinary residents of the United States. We call this anomaly, the skin color paradox.” COLORED NATION Then, we go back home, picking up another tube of complexion-lightening soap.
Fairer people just seem to be more visually acceptable. Aunts never tell them don’t wear green, you are too dark. Relatives don’t tease them and leave them introverted.
Want to be fair and lovely? Yes. Three Africans were attacked in New Delhi by a racist mob. At the metro. For no good reason. Dark skin be damned. We are bigots. Stop pretending we are not, you wheatish-complexioned brides, you hordes of idiot men buying skin fair cream. She is nice, but she is a little dark, mama, can we see the other girls. That’s rich coming from a colored nation. It is this whole savage African continent thing, plus American slavery, plus hardcore advertising guilting a nation into bias. And our own deep desire to be white. Black people in Delhi pay a price. A famous restaurant in Mumbai once put a ban on their entry. Too much stereotyping. Why are we so stupid? Many of us, regardless of our skin color, have been victims of racism and inverse racism where white people are targeted in an equally hostile and arbitrary manner. The
IN ALL FAIRNESS Western countries have learned to live with colored people and even accepted their special beauty, as exemplified by model Naomi Campbell
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FOCUS/ indian racism ALIENATED IN ONE’S OWN LAND (Left) People from the North-east stage a candlelight vigil at Jantar Mantar in New Delhi following the murder of Manipuri youth Akha Salouni; (below) Nido Tania from Arunachal was brutally killed in New Delhi early this year
The ‘chink’ in our armor
UNI
there is no rationale for racism. after dark-skinned people, it is those from the North-east who are the targets of an irrational mob mentality
By Bikram Vohra
W
E not only have low tolerance for dark people, but even those who look different can incur Indian wrath, especially in New Delhi and other urban enclaves of the country. It is India’s new sport. Where this rancor comes from with reference to the fledgling but dangerously viral hostility to people from the North-east is difficult to understand but it is intimidating. In my home, we have two nurses from Sikkim and Assam who look after my sister. They are delightful young ladies, immensely hardworking and reliable and always cheerful. Bright as buttons, smart and educated. DEEP CONCERN Ever since incidents of violence against North-eastern people began to get exposure in the media, these two girls have switched off. I see it on their faces, a look of deep and abiding concern if they have to go on an errand to the market. Buying milk is a major exercise.
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They scoff at the idea of the government’s round-a-clock helpline as a defense against idiot gangs who have attacked those who look like they come from that region. Most likely, the phone won’t work and the police will come far too late, if they come at all. Youngsters have been attacked in Gurgaon, Bengaluru and New Delhi, where a boy was killed in a wanton act of violence because a group of thugs objected to his hairstyle. WHERE ARE THE LAWS? While India has laws to protect members of certain minority groups like scheduled castes and scheduled tribes, not all people from the North-east get this benediction. Our penal code also outlaws racist remarks but has no foundation for racist violence. By that token, as it is in the US with the ‘n’ word, slurs like Chink or Slope or Momo are not officially banned. Truly, Indian racism has the laws on the side of the perpetrators.
So, while the government can rant all it wants and promise fragile protection (about as effective as fencing with a wet noodle), the two girls in my house will not go to a Dussehra fair, they will not go to Diwali mela, they will avoid shopping in malls and places like Sunder Nagar and INA, preferring to stay at home. We have snatched the joy of freedom away and they cannot understand why… nor should they. What if you were from Nagaland or Assam or Sikkim or Arunachal and you looked more oriental than Asian and you were a target? Would you be at ease, would you be relaxed about work travel… in a bus, on a train, taking a cab? Passing a bunch of bullies in an arcade corner? Fear that is visceral and flits like a specter because you cannot pin it down is the most corrosive. Bigots do not write their mindset on T-shirts.
sense of being humiliated and diminished is so strong, you almost feel violated. A restaurant tells you to go away because your dress code is inappropriate and you are stung by the fragile excuse. You are rejected from a job for which you are eminently qualified because you don’t have the right geographical rooting. And people like us from colored countries make such a song and dance and demand correction. Then, someone from our tribe, from our ranks, goes and does something so socially obscene that all we can do at first is being offended. Somewhere in the Asian psyche is a color consciousness that makes apartheid look like togetherness personified. The chairman of a newspaper once refused a job to a black Brit even though he was miles ahead of the rest of the candidates because who would “want to be interviewed by him?” When I protested as the editor, he said, “Noooooooooooo, he is not our type.” Two months later, I left the company after the bimbo we hired had arrived. Even HR companies keep this factor in mind under the unspoken conspiracy of “aesthetics.” STEREOTYPING BY ADS While we might express shock and dismay at this sort of gross prejudice, how much difference is there intrinsically when you compare it to the fact that IPL7 broadcast’s largest advertising contribution was from a monotonous and oft-repeated commercial on skin whitening cream with an emphasis on the dual power it had to lighten your skin tone and make you a happier person. Are these elements not all part of the same insidious links in the chain? Just because it isn’t so crass, it does not make the nexus any less insulting. If I was a darkskinned player sitting in the dugout watching the telecast and having to suffer the insinuation that I am not as good as the fairer guy, would I not think, “Just a minute, why me?” Indian law forbids discrimination on grounds of color. But the law offers little protection against barbed wire. And this is what it is. Racial slurring cannot be easily proven even though, paradoxically, casteist slurring can be. A PIL against a major company for promoting pink-colored lead pencils and
skin-tone went nowhere very fast. A signature campaign against “fair is beautiful” advertising still languishes, even though 30,000 people demanded an end to such advertising. The biggest seller of fairness creams, Emami, is on record saying: “There is a market need for it, so we supply it.” Officially, India has signed and ratified all the relevant conventions: the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. The jury is still out on how much protection they offer. Can you go to court to fight against discrimination on color? Yes, you can. Will you win the case? Depends on what hue the judge is, but I have still to find a case study where somebody won a legal battle and damages for being color barred…or bruised. In Bangalore, an NGO started a Brown and Proud campaign. And that is just the point—the color of your skin is nothing to be proud about. IL
GREY AREAS According to Pulitzer Prize-winning author Joseph Lelyveld (left), Mahatma Gandhi was a diehard supporter of India’s caste system and would not mix with a lowly caste.
The writer is based in Dubai and has been the editor of various newspapers such as The Indian Express, Gulf News, Khaleej Times and Bahrain Tribune. He currently writes for numerous papers and websites. INDIA LEGAL November 15, 2014
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POLICIES/ modi’s pet project /rashtriya gokul mission
MOO FOR
ME
the government allotted `500 crore for the cow in the union budget. makes sense, considering how emotive this issue is among farmers, a captive vote-bank for the bjp By Shantanu Guha Ray in Vrindavan 36
November 15, 2014
T
HE ruling NDA government’s `500 crore cow modernization program—announced with fanfare in the last budget by Finance Minister Arun Jaitley— could help the world’s biggest milk producer reach magical production figures. Scores of cow homes, or gau shalas, are mushrooming across the country’s northern and central parts where both lay workers and bovine experts are spending quality time to push the domestic Indian breed that is distinctly different from the European variety. But now, the motives are changing, slowly, yet steadily. The workers claim they are charged up, encouraged by the new program, appropriately called “Rashtriya Gokul Mission” (RGM), which has allotted a whopping `500 crore in the union budget to raise “strictly desi” cows. The `500-crore cash reserve sounded like manna from heaven for those owning cow homes. For them, it was once economics plus social work, but now they know for sure that the PM’s reported nationalistic streak is drawn out of the Bharatiya Janata Party (BJP) manifesto that promised Indian voters that if the party was voted to power, it would conserve the local breeds. For the BJP and its Hindutva agenda, the cow was a central issue. Worse, claimed the
party, the indigenous Indian cow could soon cease to exist because of multiple crossbreeding, thereby triggering a catastrophic effect, which could force India to import milk. When Jaitley made his budget speech, the agriculture ministry had even drummed up studies to show how “truly Indian cows” were producing large quantities of quality milk. According to the ministry’s papers, an Indian cow of the pure Gir variety of Gujarat broke its own 2010 record of delivering 10,230 kiloliters of milk a year, with a daily yield of 56.17 kiloliters, which comes to an annual output of over 20,000 kiloliters. If it had happened in India, the party would have been overjoyed. But sadly for the party, the Indian cow happened to be in Brazil, a country not exactly known for its milk, but for beaches and soccer. So the Indian cow must be conserved and bred, as per the ministry’s agenda. In Vrindavan—home to Lord Krishna—hundreds of temple bells ring a pious signal to scores of workers every morning to start their daily rituals at cowsheds mushrooming on the outskirts of the holy town. COW SERVICE Gau seva (cow service), incidentally, has been happening for almost a year or two. This service involves a donation between
BOVINE TOURISM Visitors to Vrindavan tending to cows at a gau shala
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NOW FOR SOME PAMPERING Cattle at the gau shala owned by Shriman Mandir Sewa Sansthan in Barsana near Vrindavan
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`500-3,500 for maintenance of a cow. Private shelters seek these donations from people, so does ISKCON. At times, it is also considered a tourist activity, wherein foreigners carrying religious bead necklaces in carry-bags wrapped around the right palm (ISKCON devotees and die-hard Vaishnavites follow this practice) get lessons on cow milk and other cow products from holy workers, who offer fodder, clean the cattle and collect milk, dung and urine for medicinal and other uses. Vrindavan has some 45 cow shelters now, nearly double the 21 in 2012, signifying a growing interest in the animal and its benefits. “The Indian cow is a sacred animal loved by Lord Krishna. Caring for a cow is religious, with serious economic benefits,”
explains Mukunda Dutta Prabhu, the head priest at ISKCON temple, a prominent landmark of the town. The frail Prabhu, a Swiss national by birth, informs that his sect, which has thousands of members across India and the world, runs a huge gau shala close to the temple. “We do it for purely religious purposes, but domestic cow breeding has caught on in India because of the government push,” says Prabhu. He should know. The cow is considered both important and religious in India and is worshipped by Hindus. CROSSBREEDING MESS Critics say the Indian government (read agriculture ministry) has, for long, hardly tried to get to the bottom of the case and track why
the yield of these cows was low. Experts say it has been happening for long. Farmers— obviously encouraged by the government— started indiscriminately crossbreeding Indian cows with imported bulls and semen way back in the 1960s. As a result, there has been a systemic destruction of the indigenous Indian cow, including precious breeds developed over a millennium. At the same time, the new, exotic crossbreeds—capable of very high milk yields—have not adapted to Indian conditions, causing immense trouble for Indian farmers. Many were not equipped to bear the high costs of rearing exotic crossbreeds. Their business turned unviable, and many sent their cattle to slaughter houses. But now that there is a BJP-led NDA government at the center, cow and milk cannot be a simple issue left to the farmers. For the ruling government, it is a national issue that gives the coalition an advantage among the farmers before any crucial state elections. The cow and milk debate have happily started across India. “Even if you keep the Hindutva agenda aside, there is nothing wrong in pushing the domestic breed, especially if you know it will yield more milk,” says Arun Pradhan, 56, a cow shelter owner in Vrindavan. He says milk, after all, is a huge driving force for India’s agro-economy, a product considered even bigger than wheat, paddy or sugar. India’s current milk business has over 1.2 lakh cooperatives—run by an estimated 1.3 crore people—who distribute milk across India after procuring it from small and landless farmers. “So why grumble if there is a need for research on properties of milk from indigenous breeds and the ruling government is allocating funds for the same?” argues Pradhan.
There has been a systemic destruction of the indigenous cow. At the same time, new, exotic crossbreeds, capable of high yields, have not adapted to Indian conditions. Development Board (NDDB) wants to usher in India’s second milk revolution and is pushing to increase production to meet growing demand and solve the country’s nutritional challenges. NDDB chairman T Nanda Kumar says the demand for dairy products in India is increasing much more than milk. For the record, milk production in India in 2013-14 was estimated at 140 million tons (MT) against 132.4 MT in 2012-13. Kumar says NDDB, under the “National Dairy Plan”, wants to achieve a 200 MT figure by 202122. The first phase—helped with a budget of `2,242 crore from World Bank—was started in 2012. And now, RGM will be a booster to NDDB’s plans. The project has the total backing of the Rashtriya Swayamsevak Sangh, the powerful think-tank of the
SACRED SUPPORT ISKCON (below) has come out in support of the Rashtriya Gokul Mission for indigenous cow breeding
WHITE REVOLUTION-II In Anand, India’s milk town in Gujarat, the National Dairy INDIA LEGAL November 15, 2014
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POLICIES/ modi’s pet project /rashtriya gokul mission
cow-breeding program. It blames the BJP for hijacking it with a multi-crore dole. It is a political gimmick, asserts Manish Tewari of the Congress. “It was the Congress that recognized the need for breeding domestic cows for their high quality milk,” he says. Tewari has support from the CPM, which says the move is pro-Hindu and anti-Muslim. Two Indian states, West Bengal and Kerala, officially permit cow slaughter for its sizeable Muslim population. “The NDA program has serious, pro-Hindu ramifications,” says CPM politburo member Sitaram Yechury. But the government does not care. According to the party, the scheme actually aims to encourage owners to maintain the cows after they have passed their milkproducing stage, so that they can be utilized either for meat or for other medicinal purposes. The basic idea is to get more milk with some sub-benefits. This is a win-win situation for both Hindus and Muslims. On paper, the plan does look attractive.
MIXED FORTUNES (Top) Siddhgiri Math, Kolhapur; (above) A gau shala in Rajur, Maharashtra
government, and the right-wing Vishwa Hindu Parishad. Both feel that domestically bred cows are better suited for the Indian climate, even heat resistant. Indian farmers, especially those owning commercial dairy farms, mainly rely on Jersey-Holstein cross breeds for better yields. But the NDA coalition wants to change their mindsets with its so-called nationalistic program. The move, expectedly, has evoked strong reactions. POLITICAL GIMMICK? The Congress, now in opposition, is seething because it was UPA-II that started the
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UID FOR COWS Soon, each cow will have a unique identity number and all records stored in a national database. Farmers maintaining the best cow centers as “Gopal Sanghs” could qualify even for a “Gopal Ratna” award. The winners could even be encouraged to start a publicprivate partnership. The Ministry of Agriculture is also pushing for a genetic upgrade project called the National Project for Cattle and Buffalo Breeding. India has a little over 200 million cattle, of which, a whopping 83 percent is indigenous. Tagging them could be a Herculean task, but the government appears confident. Farmers, after all, form a big vote-bank in an agrarian society like India. In his first interaction with reporters in Delhi in April, Agriculture Minister Radha Mohan Singh said that under the project, `150 crore would be spent this year. This is part of the current Five Year Plan (2012-17) under the National Program for Breeding and Dairy Development. The minister said the problem lies mainly with intrinsically-low genetic potential and animal nutrition, issues often highlighted by the Food and Agriculture Organization. He,
however, did not elaborate. As per the government’s own records, only five or six out of the recognized 37 cattle breeds are in trouble. These include the Krishna Valley and Hallikar breed in Karnataka, Vechur breed in Kerala, Pulikulam breed in Tamil Nadu, Gir breed in Gujarat, Ongole breed in Andhra Pradesh and Nimari breed in Madhya Pradesh. Does that warrant an immediate attention, a `500-crore dole? No one in the party has an answer. But figures are still stacked up in India’s favor, giving the BJP immense benefit. NUTRIENT FACTOR As of now, India produces one-fifth of the total output of the US and New Zealand. Some studies, though unverified, show domestic cow milk is thicker, rich in smell, sweeter and considered good for children’s growth. But the quantity is low—almost one-third—as compared to thinner milk produced by Jersey and Holstein cows. Worse, no one gives a damn in the market about this and the prices for both are almost the same, `18-21 per liter. Milk from the Indian domestic breed also has several advantages over the milk of European varieties, a crucial differentiator being the A2 variety of beta casein protein, found in abundance in the milk of zebu cows (an Indian variety characterized by a fatty hump). Milk from European breeds has the A1 variant, which is often related to allergies. Dr AK Chakravarty, scientist, National Dairy Research Institute, Karnal, says there is high demand for milk from indigenous cows rather than from high-yielding exotic varieties. In fact, nearly 63 percent of animal protein in Indian diet comes from dairy products, reveals Chakravarty. Worldwide, countries have always retained Jerseys for domestic breeding and con-
Now, each cow will have a unique identity number and all records will be stored in a national database. Farmers running the best cow centers could get a Gopal Ratna award. sumption. But it has not worked in India, he says, because farmers mostly turn to Holstein cows for commercial benefit. There are other reasons to worry. As per the country’s 19th Livestock Census, the population of exotic or crossbred milch cattle increased from 14.4 million to 19.42 million, an increase of 34.78 percent. And the population of indigenous cattle decreased by 8.94 per cent. But the overall population of 512.05 million livestock itself declined, says the Census, by 3.33 per cent, mainly because farmers—troubled by the shortage in rainfall —are selling their cattle in distress, reducing their dependence on livestock rearing. The BJP now wants to ensure that this is reversed. IL
PICTURE OF NEGLECT Though cows are considered sacred they often have to fend for themselves, like this cow at the Banke Bihari temple in Vrindavan
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PROBE/ judge’s son / gaurav gambhir / ghungroo
The WelcomHotel property in which Gaurav Gambhir has a business interest
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LICENSE TO
OPERATE: PART-I (Left) Documents showing GHUNGROO’s license issued in Gaurav Gambhir’s name. His residence address is that of his father
I
S Gaurav Gambhir using his father, Delhi High Court Justice Kailash Gambhir’s official residence, to carry out his business activities? According to documents accessed by India Legal, the requisite licenses to operate an establishment named GHUNGROO (at WelcomHotel, Dwarka, in Delhi) were issued in the name of Gaurav Gambhir in 2013. The health trade license was issued by the MCD, Najafgarh Zone, and liquor license by the excise department, Delhi government. His name was listed in the column of Directors/ Partners/ Proprietors, M/s GHUNGROO (WelcomHotel Dwarka). The certificate issued by Delhi Police’s licensing branch for M/s GHUNGROO (WelcomHotel Dwarka) dated July 11, 2013, reveals that INDIA LEGAL November 15, 2014
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PROBE/ judge’s son / gaurav gambhir / ghungroo
(Below) The document issued by Delhi government’s excise department shows liquor license in Gaurav Gambhir’s name
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Gambhir had listed his residential address as B-7, Dr Zakir Hussain Marg, New Delhi, 110001. He had also given his father’s name as Kailash Gambhir. The Excise Department license issued in Gambhir’s name reveals that M/s GHUNGROO (WelcomHotel Dwarka) was issued L
16 & L 16 F licenses on 12/07/2013 and was valid up to 31/03/2014. The club’s sitting capacity was 75 and it had no license to serve 24x7. (To be continued) IL By Vishwas Kumar
EDUCATION/ jamia millia islamia
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MINORITY
November 15, 2014
it’s been over three years since the university was declared a minority institution. while it means more seats for muslims, they are losing out on holistic education and good job placements By Meha Mathur
I
T is a tag which comes with pros and cons. In early 2011, when the National Commission for Minorities Educational Institutions (NCMEI) declared Jamia Millia Islamia in Delhi as a minority institution, there was euphoria in the student and teacher community. It meant that the university would, henceforth, enjoy a unique dual status—as a minority institution and a central university. The university got the status after a longdrawn struggle. Since 2006, the Jamia Students Union, Jamia Old Boys Association and Jamia Teachers Association filed petitions seeking minority status. Passing the judgment, the chairman of the commission, Justice MSA Siddiqui, said: “We have no hesitation in holding that Jamia was founded by Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution.” UGC FUNDING However, this judgment was challenged in Delhi High Court (HC) on several counts: that the university was not started with the mandate
REPORT Photos: Meha Mathur
EXUDING PRIDE Jamia celebrates its foundation day on October 29 every year. It is an occasion for the entire community, including students, parents and faculty to come together
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EDUCATION/ jamia millia islamia
“I am afraid that Jamia Millia Islamia may lose its halo now that it has been declared a minority institution. The word ‘Islamia’ gave JMI a special link with Muslims. There was no need to do anything else to reaffirm that connection.…” —Veteran journalist Kuldeep Nayyar in The Sunday Guardian
SECULAR BRANDING (Below) Over the years, Jamia has established itself as a center of learning that draws students from all corners of India and belonging to different faiths and communities (Facing page) Students attending a lecture at Jamia
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of being a minority institution and that the new status violates its secular character. Another argument was that it receives heavy funding from the University Grants Commission. How can it then ask for minority status? But the HC dismissed these petitions in September 2011. Jamia’s minority status meant that 50 percent of seats would be reserved for Muslim students and the university was no more under obligation to reserve seats for SC/ST and OBCs. Jamia, naturally, saw it as a means of furthering education for the Muslim community. Najeeb Jung, then vicechancellor of Jamia, wrote in the in-house publication, Jauhar, about the NCMEI judgment: “Notwithstanding the fact that the
founding fathers of the University were largely Muslims with considerable concern for Muslim education, the student population has always been a mix of all communities, with Muslim students’ percentage hovering a little over 50 percent.” He added that by declaring the university as a minority institution, the Commission had put a legal stamp on what already existed. The judgment did not consider the unique multi-religious, multi-cultural ethos that Jamia had evolved into. Sadly, few know of Jamia’s origin at the height of the independence struggle in 1920, and its secular ethos, which was maintained all through. Unfortunately, the minority tag will dilute this and reinforce perceptions about an institution. This will be contrary to its basic character and damage those studying there. NATIONALIST ORIGINS So, what is the genesis of Jamia? In the heady days of the Non-Cooperation and Khilafat Movements, when Mahatma Gandhi and other nationalist leaders urged countrymen
What the statute says Key conditions for minority status to an institution under Article 30 (1): (i) The institution should be established by members of the religious minority community (ii) It should be established for the benefit of the minority community (iii)The educational institution should be administered by the minority community
to boycott British goods and institutions, the Mohammadan Anglo-Oriental College (MAO College, now Aligarh Muslim University), was highly inclined to accept British assistance in running the college. On October 12 and 13, 1920, Gandhi and Khilafat leader Maulana Mohammad Ali Jauhar addressed a large gathering in MOA College, urging them not to accept government funding. They were largely jeered. But a small group of teachers and students, among them a young Zakir Husain, picked up the cause. Threatened by authorities, this group walked out of the college, and started Jamia from makeshift camps in Aligarh. Hakim Ajmal Khan was the chancellor, and Mohammad Ali, its vice-chancellor. While Gandhi was never formally part of the nascent institution’s pre-dominantly Muslim governing body, he always assisted it during its initial hardship. Jamnalal Bajaj, Gandhi’s son Devdas Gandhi and Mahadev Desai too became associated with the university. The founding fathers were clear about the character of the institution. Mohammad Ali, in his writings in Hamdard, stated that as a
“millia”, it was a group of followers of a faith and as “Islamia,” it taught Islam. “It must be noted, however, that its doors are open to followers of all religious. It does not restrict itself to teaching only religious matters, as is the case with Deoband and Madarsa Nizamia,” he said. Mushirul Hassan, in his book, Partners in Freedom: Jamia Millia Islamia, describes how dozens of Hindu students from Assam, Bengal and Punjab flocked to Jamia attracted by its heterogenous mix. He quotes a student, Rana Jung Bahadur, as saying: “Hindustan ki pyasi jawani ka jamia ke panghat pe mela lag gaya tha (the thirsty youth of Hindustan flocked to the fount of Jamia).” And during the tumultuous days of partition, the then vice-chancellor, Dr Zakir Husain, and his colleagues, took it upon themselves to provide succor to Hindu families who had been victims of violence, and “adopted” a few Hindu boys who had been orphaned or maimed, taking up the responsibility of their education and upbringing. In the post-Independence era too, the institution stuck to puritan Gandhian ideas of
On admitting nonminority students: As per PA Inamdar (Supra) case, a minority educational institution is primarily for the benefit of minorities. “Sprinkling of non-minority students in the student population of a minority educational institution is expected to be only peripheral, either for generating additional financial source or for cultural courtesy,” the judgment said. On receipt of grants from the state: As per Article 30 (2), the state shall not, in granting aid, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. The minority nature of an institution would continue to be as such, notwithstanding the fact that state aid is given. —Sourced from ncmei.gov.in
INDIA LEGAL November 15, 2014
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EDUCATION/ jamia millia islamia
Faculty members feel minority status has flooded Jamia with Muslim students and deprived them the chance to mingle with students from other communities. education, emphasizing learning by doing, and going to the extent of shunning government aid for many years.
MODERN OUTLOOK Jamia imparts state-of-the-art education in sciences, too.
INCLUSIVE EDUCATION Declared a university in 1988, Jamia has played an important role in bringing together Muslim and non-Muslim youth from deprived backgrounds within the ambit of education. Many are first-generation learners from small qasbas and villages and children of farmers and carpenters. The university has, therefore, fanned
many small-town dreams and this writer has had the unique opportunity to interact with a large number of them during the course of her work in the last five years. Take Asma Naseem, from a small village in Baghpat district in UP. Her father, desirous of the best education for his child, shifted to Delhi when she was four and got her educated in Jamia School and College. His efforts paid off as Naseem won an MSc gold medal in biosciences. She, then, did her PhD, and is now pursuing post-doctorate studies at the International Center for Genetic Engineering and Biotechnology in Italy. Ikramul Haq is another bright student to join Jamia. He studied at Madrasatul-Islah, a madarsa in Azamgarh, and at Nadwatul Ulama in Lucknow. He had enrolled for BA (Hons) History at Jamia and could amaze one with his fluent English and his clarity of thought, which far exceeds that of metropolitan kids. Samreen Jahaan is the only girl student in the entire batch of mechanical engineering at Jamia Polytechnic and says her family is fine with it, while Fatima from Mewat went against her family’s wishes to study geography at Jamia. Anupama Kumari from Sindri, Dhanbad, was so focused in her studies that she first did her masters in fine art from Jamia, and then, went for a year’s scholarship to Paris. The university, on its part, has widened its ambit and improved its infrastructure in both research and job-oriented disciplines, like nanotechnology, biotechnology, theoretical physics, dentistry, management, law, media, international studies and foreign languages. International collaborations have helped it send students and faculty for research work and seminars abroad. MISCONCEPTIONS GALORE Much of this is largely unknown to the outside world, though the university is located in the heart of the capital. Historian Mukul Kesavan, a faculty with the history department, writes in Jauhar: “When people think about Jamia, they conjure up a ‘Muslim’ institution that lives on Delhi’s margins….A cousin of mine from Jaipur commissioned me to buy her some ittar, my mother instructed me to enroll her in Jamia’s won-
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derful Urdu correspondence course and wellmeaning friends asked how I distinguished one girl student from another…” And now with the minority status, there are apprehensions that things will only get more difficult. Veteran journalist Kuldeep Nayyar wrote in The Sunday Guardian: “I am afraid that Jamia Millia Islamia (JMI) may lose its halo now that it has been declared a minority institution. The word ‘Islamia’ gave JMI a special link with Muslims. There was no need to do anything else to reaffirm that connection.…the message…that the ethos of composite culture of the institution has changed will hurt the reputation of JMI.” There are dissenting voices in the university too. On condition of anonymity, faculty members say that the change is perceptible on two fronts: the composition of the university and job recruitments. It’s not just 50 percent seats that are reserved for Muslims. A large number of general category seats too are taken up by Muslim candidates, based on merit during the entrance exam. But this has got a Muslim faculty member worried as according to him the university has never had such a large proportion of Muslims in its classes. This means lesser opportunities for Muslim students to mingle with other communities and ghettoization. This change is perceptible during classroom interactions, says a faculty member. “Students are not getting a chance to know other viewpoints, limiting their ability to listen to other perspectives. For every problem, including the Islamic State’s atrocities, America is to blame.” Jamia is also going for recruitments and promotions of faculty members on the basis of its minority status. At the executive council meeting held in June 2014, recruitment of teaching and nonteaching positions in accordance with its minority status, was approved. An old-time Jamia faculty and a writer of great repute says that the word “minority” has all the wrong connotations. “However hard we try to assure people, for them, minority means Muslims.” The result, he says, is that bright students are shying away from Jamia as they feel that if they mention that they had studied in a Muslim minority institution at the time of a job interview, it
will go against them. A few headhunters, however, denied that the minority status had any bearing on recruitments. Dony Kuriakose, director of Edge Executive Search Pvt Ltd, says that what matters is the performance of a candidate. “We look at overall marks and the track record of the students, and Jamia has done a pretty good job of producing excellent students… None of our clients are asking these questions.” The annual report posted on the placement cell of Jamia, shows otherwise: “More than 105 companies raised 475 offers to the students of our university” in 2011-12. However, it was more during 2010-11, when more than 140 companies raised 610 offers to the students,” it said. Though the figures for 2012-13 have not been uploaded, a member of the engineering faculty informed it was rather disappointing. Rehan Khan Suri, training and placement officer, says too much should not read into these figures. “What companies are looking at is quality of research, environment and values inculcated. They want to make their workplace more diverse. And we have got good feedback about our students—that they are disciplined and have the right values.” He says that over the last three years, placements have decreased due to a bad phase in the economy. Also, because Jamia has its own entrance test, recruiters are unable to evaluate its quality vis-à-vis other exams, such as CAT and IITJEE. So while Jamia fought to acquire a minority status, it’s obviously not going to be beneficial in the long run. Fostering a multi-religious, multi-cultural atmosphere is what will eventually benefit its students. IL
ALL-ROUND DEVELOPMENT Jamia also imparts various skills that help students get employment
INDIA LEGAL November 15, 2014
51
STATES/ maharashtra /water woes
TAKE IT EASY POLICY there is a crisis looming in this state as water levels plummet and agriculture suffers due to neglect and mismanagement
By Ritu Goyal Harish in Pune
S
HOULD industrial development be at the cost of environment? This age-old debate is especially relevant in Maharashtra, one of the most industrialized states and home to India’s financial capital. What has made it worse are the lopsided policies of the Maharashtra Industrial Development Corporation (MIDC), which have made the already acute water crisis in the state worse. MIDC is the largest hub for industries in Maharashtra and provides fully developed industrial plots, with all necessary infrastructure, including roads, electricity and water. It has about 233 industrial complexes across Maharashtra and the total area covered by MIDC is about 1,30,000 acres. SELFISH MOVE However, this mammoth industrial segment is turning out to be one of the largest consumers of water in the state. Approximately 2,240 million liters of water (approximately 8,17,600 liters per annum) is provided to industries every day by MIDC, which, in turn, gets water from the Water
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November 15, 2014
INDIA LEGAL November 15, 2014
53
STATES/ maharashtra /water woes
BASIC RIGHT, ONCE A WEEK Villagers in drought-hit Shahapur village in Thane scramble around a well, which is supplied water by tankers once in eight days.
Resources Department of Maharashtra. This department sources 65 percent of water from irrigation dams. MIDC itself sources 34 percent water supply from its own dams. But in a decision that smacks of selfishness and which has come in for heavy criticism, MIDC doesn’t allow digging of borewells and is vague about recharging of underground water tables through rainwater harvesting (RWH), thereby harming the environment. This is being done so that it can continue to get revenue from these industries. But this is being penny wise and pound foolish. RWH raises groundwater tables and using the harvested water will ensure that MIDC is less dependent on water from dams, which can then be diverted for agriculture. In a state known for water shortage, the right policy decisions will make all the difference. In 2013 and 2014, a looming water crisis in Maharashtra became a talking point in the media, thanks to the callous and thoughtless
While MIDC permits the installation of rainwater harvesting systems on industrial structures, it does not permit the harvested water to be used.
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comments of then minister for irrigation and deputy chief minister, Ajit Pawar. In 2013, in Indapur, Pune, he ridiculed a farmer who was on hunger strike (he was demanding water for his field) by saying: “But where are we going to get water from? Should we urinate? When we are not getting water to drink, even urine is not coming easily.” In 2014, 22 districts in the state faced a drought-like situation due to delayed rains and helpless farmers began committing suicide. The monsoon finally arrived, but it too was late. By then, the damage had already been done. Part of the problem is water mismanagement. In 2013, the then Chief Minister Prithviraj Chavan admitted that despite spending a whopping `70,000 crore over a decade, only .1 percent of the state’s irrigation potential had been achieved. Inequitable supply of water and rising demands from industries (that are supplied water from dams) and urban centers have meant that agriculture has suffered the most. RESTRICTED MOVE Sadly, MIDC’s one-sided policy on water and its lack of vision have made matters worse. MIDC has a strict water policy that doesn’t allow industrial units to use their own sources of water. This policy is rational to some extent as it restricts industries from tapping and using underground water resources indiscriminately. But this policy is also causing imbalance in water management as well as causing loss of revenue for industries during summer. In the harsh and prolonged summer of 2013 and 2014, industries faced severe shortage of water and several requests were made to MIDC to allow them to bore wells to supplement water. An official of an IndoJapanese water intensive venture in Pune told India Legal that they had spent nearly `2 lakh daily, buying water from tankers. A circular by MIDC, dated February 22, 2013, cited a previous circular dated June 10, 1992, that allowed industries to dig just one borewell per unit during times of scar-city. It said this permission was to be granted to water-scarce areas and the borewell was to be plugged as soon as water supply by MIDC
UNI
was restored. However, smaller industries didn’t see the point of spending on borewells when it would be plugged soon after. Many chose to simply buy water from tankers supplied by MIDC. According to Col (retd) Shashikant Dalvi, a Pune-based RWH expert, this shortsighted policy of MIDC had added to the water crisis. Dalvi, who has visited several industrial units in Pune, was keen on installing RWH systems. He says: “What the MIDC is doing, borders on criminal offense. They’re indiscriminately withdrawing water from our dams for industrial use and harming the environment by not allowing industries to recharge groundwater.” WATER DIVERSION Research by Pune-based Prayas, an NGO, showed that 88 percent water from Hetwane dam in Raigad district was re-routed to industries, while from Amba and Pavna dams, 81 percent water was diverted. Prayas said this water diversion was done “without consultations with the affected people and as mandated under the Maharashtra Water Regulatory Authority Act of 2005.” Strangely, while MIDC permits the installation of RWH systems on industrial struc-
“MIDC is indiscriminately withdrawing water from our dams for industrial use and harming the environment by not allowing industries to recharge groundwater.” —Col (retd) Shashikant Dalvi, a rainwater harvesting expert tures, it does not permit the harvested water to be used. Companies are naturally not interested in investing in RWH systems. On condition of anonymity, a unit owner said: “Why should I install a system that doesn’t benefit me? I will have to buy water from MIDC anyway.” Scrutiny of documents available on MIDC’s official website raises a few questions: Why is MIDC adamant on its policy of water monopoly? Why can’t RWH be made compulsory? Why is MIDC averse to adopting and implementing a technology that will ensure that water withdrawal from RWH systems by industrial units is regulated?
GETTING WATER-WISE (L-R) Mumbai students take part in a prayer rally for rain in June this year; a borewell recharge in Hingani village of Amravati district of Maharashtra
INDIA LEGAL November 15, 2014
55
STATES/ maharashtra /water woes
GreenPeace
EVERY DROP COUNTS A young girl carries water from a tanker in Ashti Taluka of Beed district of Maharashtra
What is MIDC’s future water policy? Does it intend to continue relying on dams as the only source of water? Despite repeated telephone calls and emails to MIDC CEO Bhushan Gagrani and chief engineer of Pune, they did not revert. Strangely, the Mahratta Chamber of Commerce Industries & Agriculture, the apex body that represents the industrial sector of the state, has also been silent about the lop-sided policy of MIDC.
HUMONGOUS SAVING Dalvi, in fact, has worked out the arithmetic to see how much water will be saved through RWH systems. “The average annual rainfall across Maharashtra is 1,300 millimeter. Taking this into consideration, RWH potential per acre is roughly 4.4 million liters. Therefore, in 1,30,000 acres (area of MIDC units) the benefits will be enormous,” he says. He has successfully installed RWH units in commercial and residential sectors, including schools, colleges and hospitals, in drought-prone areas of the state such as Buldhana, Jalna, etc.
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Take Hinjewadi IT Park Phase 1 & 2 in Pune, which is spread across 440 acres. “If RWH is adopted by industries in this region alone, it can result in 1,100 million liters of rainwater being saved. This potential, if used judiciously, will make large amounts of water available for agriculture and domestic usage. At the same time, implementing RWH schemes in such large areas will help improve groundwater levels. It will also help reduce the carbon footprint,” says Dalvi. This will have larger spin-offs. Reduced water costs means increased profits for industries. This can be used for improving the quality of products and more employment. “Water that is not consumed by industrial units can be diverted for public supply, thereby increasing water availability for agriculture. Improved groundwater levels will help everyone who lives around the area,” adds Dalvi. It is time that the Maharashtra government and MIDC take a serious look at their water policy and allow industries to use RWH with strict regulations. After all, everyone will benefit from it. IL
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LEGAL EYE/ judges’ removal / book extract
Follow the RULE BOOK
I
N 2011, the process of removal from office of two high court judges, Justice Soumitra Sen of the Calcutta High Court and Justice PD Dinakaran of the Sikkim High Court, by Parliament and ensuring their accountability failed to materialise for reasons mainly attributable to the flaws in the interpretation of the relevant legal provisions. The Rajya Sabha Secretariat’s claim (as revealed by me under RTI) that the decision to wind up the Committee set up to inquire into allegations against Justice Dinakaran stems from his likely boycott of the proceedings (after his resignation) which would render the Committee’s report one-sided, is specious. Rule 8 of the Judges (Inquiry) Rules, 1969, provides the following: “Effect of non-appearance—If the Judge does not appear…the inquiry committee may proceed with the inquiry in the absence of the judge.” When a judge does not appear before a committee, despite serving of notice on him in advance, it means that the judge admits the charges and the committee can go Aruna
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November 15, 2014
what happens when a tainted judge resigns? does parliament lose control over him? extracts from constitutional conundrums: challenges to india’s democratic process raise some pertinent questions By V Venkatesan ahead with the inquiry as if the judge does not want to refute the charges. INTERNATIONAL PRECEDENTS Curious, however, was the claim of the Rajya Sabha Secretariat that it relied on certain international precedents to decide that, with Justice Dinakaran’s resignation, the Committee must be wound up. In its reply to the author under the RTI Act, the Secretariat admitted: “The Judges (Inquiry) Act, 1968, and the rules made thereunder do not provide for the winding up of the inquiry committee. The decision to wind it up was taken on the basis of law and precedents.” In particular, the legislative section of the secretariat, relied on the following precedents: (i) Judge Samuel B Kent (Southern District of Texas) resigned on June 30, 2009, (ii) Judge George W English (Eastern District of Illinois) resigned on November 4, 1926. Both the precedents were not exactly the correct ones to follow in Justice Dinakaran’s case. In the United States, the process of impeachment and the process of removal are distinct. While the House of Representatives impeaches a judge (the word “impeachment” is understood in the United States as framing of charges), it is the Senate which holds the trial and removes the judge from office. It is correct that both these Judges resigned, before their removal by the Senate, forcing it to drop the removal proceedings. But they did not resign before being impeached by the House of Representatives. The reliance on these two precedents also ignores other facts. Judge Kent pleaded guilty to the charge that his sexual conduct with his female victims was non-consensual and to the charge of lying to the investigators. Because of this plea deal, federal prosecutors dropped five sex-crime charges alleging that he groped two women. If convicted of all the charges, he
would have spent his entire life in prison. He was sentenced to 33 months in prison by the federal grand jury for aggravated sex abuse, abusive sexual contact, and obstruction of justice, before he resigned on the eve of the trial by the Senate for removal. In 2011, he completed the jail term. In contrast, the winding up of the Inquiry Committee to probe charges against Dinakaran meant that Parliament not only dropped the removal proceedings, but also abandoned the only recourse to establishing charges against him, let alone the question of punishing him if the charges had been established.
Constitutional Conundrums: Challenges to India’s Democratic Process By V Venkatesan Published by LexisNexis Pages: 420 `495
SENATE DECIDES Judge English was accused of abusing lawyers and litigants appearing before him. He was charged with usurpation of powers and other high misdemeanors. The House of Representatives had already determined him to be unfit to further perform the duties of Judge. The report on this case indicates that the Senate has the privilege to decide whether to continue a trial, despite the resignation of the Judge. Reliance on this case would suggest that even if it is conceded that Parliament can drop the removal proceedings, including an ongoing inquiry against a judge after his resignation, the sole authority to do so should have been the House itself, rather than the Presiding Officer in his individual capacity. The element of arbitrariness in winding up the Committee is a disappointment, especially because a huge expenditure has been incurred on its work
Justices Soumitra Sen and PD Dinakaran resigned for scuttling the parliamentary process of removal. But parliament does not lose its jurisdiction over them. INDIA LEGAL November 15, 2014
59
LEGAL EYE/ judges’ removal / book extract
EASIER SAID THAN DONE The process of removing justices Soumitra Sen (left) and PD Dinakaran failed due to flaws in interpreting legal provisions
without any corresponding gains on judicial accountability. The committee spent `1,63,98,204 before it was wound up, as per the provisional figures, released by the Rajya Sabha secretariat under the RTI Act to the author, through its reply dated December 1, 2011. This expenditure includes payment made to the personnel of the committee, office expenses and professional fees, although no payment was made to the members of the committee. DEROGATORY CONDUCT In 1951, the Provisional Parliament was debating the expulsion of its member HD Mudgal, belonging to the Congress, in connection with his dealings with Bombay Bullion Association, which included canvassing support and making propaganda in Parliament…on behalf of that association in return for alleged financial and other business advantages. A five-member inquiry committee, comprising of MPs set up by Parliament, held that his conduct was derogatory to the dignity of the House and inconsistent with the standards which Parliament was entitled to expect of its members. It, therefore, recommended the expulsion of the
“If the House does not express its will in such matters in...forceful terms, then, doubts may very well arise...whether the House is very definite about such matters...” —Jawaharlal Nehru 60
November 15, 2014
member from the House. He resigned before Parliament was to debate and vote on the Prime Minister’s motion to accept the Committee’s findings and to expel him. Before submitting his resignation, Mudgal got an opportunity to defend himself and speak against the motion for over 90 minutes. Mudgal’s sudden resignation raised the question whether it abruptly brought to an end the proceedings which were going on in the motion moved by the Prime Minister. A debate on this point took place on 24 and 25 September 1951, in which several members participated. It was held that the fact that a member had resigned his membership did not bring the existing proceedings to a stop. It was felt that the House had not lost its jurisdiction over the member although he had ceased to be a member of the House. The authority of Parliament was exercisable over both the members of the House as well as the members of the public. The House deprecated the attempt of the member to circumvent the effects of the motion that was before the House by way of resigning his membership. The House passed a resolution which not only recommended the expulsion of Mudgal, but also found his act of resignation amounting to contempt of the House which only aggravated his offence. A similar argument can be advanced in the cases of removal from office of Justices Soumitra Sen and Dinakaran. Even though they had resigned in order to scuttle the Parliamentary process of removal, Parliament did not lose its jurisdiction over them; they could not claim the protection of independence of judges as they had resigned and became ordinary members of the public. Therefore, Parliament must have continued the removal process to its logical conclusion in both the cases, despite their resignations. During the debate on Mudgal, Nehru said: “If the House does not express its will in such matters in clear, unambiguous and forceful terms, then, doubts may very well arise in public mind as to whether the House is very definite about such matters or not.” Lok Sabha’s decision to drop the removal process against Justice Soumitra Sen and Rajya Sabha chairman’s ill-advised move to prematurely terminate the inquiry committee against Justice Dinakaran have created such doubts. IL
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Capturing moments in time
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constitution, said Napolean Bonaparte, should be “short and ambiguous”. The framers of India’s constitution ignored that advice, and went on to write one of the longest constitutions in the world. While written constitutions have the advantage of being definitive in one sense and capable of being referred to as scripture, yet in another sense, they need constant interpretation to keep up with the times. The interpretative task invariably falls upon the shoulders of the Supreme Court and its interpretations though fallible, are final. V Venkatesan’s first book, Constitutional Conundrums: Challenges to India’s Democratic Process, reflects upon the interpretative tasks undertaken by the Supreme Court in recent years over a wide canvas of issues, ranging from the dissolution of state assemblies, Forests Rights Act, the limits of federalism to questions of judicial overreach. In recent years, though the 24x7 cycle of media reporting has increased the quantity of day-to-day reporting from the Supreme Court, sadly, quantity has been at the expense of quality. The court’s orders and judgments are often viewed in an episodic manner, driven by personalities and rarely is an institutional analysis and perspective offered. The Indian media space has not yet thrown up a Jeffrey Toobin or a Dahlia Lithwick, whose reporting and books on the working of the US Supreme Court have often shaped the views of lawyers, judges and politicians. Working on the US Supreme Court is based on a greater sense of precedent and order, since it is an institution whose incumbents change rarely and which rules on a limited range of legal issues devoid of a factual matrix. Books like Bob Woodward’s The Brethren and Jeffry Toobin’s The Nine have given the reader a sense of the US Supreme Court’s working as an institution and how individuals play a pivotal but not an overwhelming part in the final outcome of any discourse therein.
the supreme court deals with a variety of issues. this book attempts to make sense of the chaos and is a good reference work By Sanjay Hegde
ORDER OUT OF CHAOS On the other hand, those who have written on the Indian Supreme Court have often called it the most powerful court in the Photo Division
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world. Yet, those who man this institution do not have a tenure for life, nor do they sit and decide cases en-banc or as a collective whole. Judges of the Indian Supreme Court are transients, who for a short period of years, are dressed with a little brief authority. Authors have also remarked on the sheer variety of issues the court attempts to tackle and how it struggles to bring some semblance of order out of chaos. Venkatesan’s book is an important contributor to understanding that effort. Venkatesan has the advantage of being not subject to the breaking news syndrome of television journalism, as he works for Frontline, the fortnightly magazine published by the Hindu group. As he writes in his introduction to the book: He “could keep considerable distance from the pulls and pressures of daily journalism, and look at the contemporary events with some objectivity”. He credits his interaction with the blog “Law and other things”, as leading to an “exchange of scholarship with my colleagues and the readers on the blog” which helped him to “look at the contemporary issues thrown by the working of the constitution from a vantage point” and perhaps resulted in the book. Also, Venkatesan has been a good investigator and follower-up of events as recorded in the official files. He has made timely applications under the Right to Information Act, and obtained original source material to back up his reports. The 25 annexures to his book are all documents which will be of interest to legal historians and chroniclers. EXHAUSTIVE JOB The book covers a period of constitutional development between 2001 and 2014 and covers most of the notable judicial and constitutional controversies of the period. Divided into four parts, involving separate themes from parliament and the executive, onto federal tensions and judicial overreach, and the autonomy of the election commission, the book does an exhaustive job of pigeonholing constitutional questions into appropriate slots. Each heading is further divided into individual chapters, dealing with particular cases that highlight the conundrums which are attempted to be resolved by
the court. The author does a good job on reporting the factual background to the controversy and how the issue was framed for the court’s consideration. The resulting judgment and the inconsistencies underlying it are set out in good detail along with the informed comments of perceptive commentators on the issue. Contemporary reporting of the issue is also reproduced in separate boxes. In effect, each chapter is an independent report in itself on a major judgment, and this book in all probability, will be a work of reference whenever these issues are re-agitated before the court on a future date. However, the absence of a major unifying theme or individual figure in the book, renders it more of a compilation of reports relevant to the legal profession, rather than an introduction to constitutional law-making for the informed lay reader. Venkatesan, with his unique vantage point, sound writing ability and his eye for detailed fact-gathering, has, in effect, produced a good reference work, when it could have been molded into a legal bestseller for a mass audience. But the advantage of having written a good first book is that the second is not long in arriving. All in all, the book is an informative read and a worthwhile addition to the library of any lawyer, legal academic or outsider with more than an informed interest in constitutional law. IL
POINT TAKEN (Facing page) The book comprehensively deals with the 10th schedule of the constitution related to the speaker’s position. The case of Somnath Chatterjee is discussed in detail. He was asked to resign by his party as speaker and vote against the confidence motion moved by UPA in 2008 (Above) The rules regarding president’s pardon point out why only three persons, Dhananjoy Chatterjee, Afzal Guru (right) and Ajmal Kasab, were hanged in the last 14 years
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HUMAN INTEREST/ swap liver transplant
A matter of If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that. —Shylock in The Merchant of Venice
here’s an inspiring tale of a swap liver transplant that took place in apollo hospital between two muslims and two hindus and how their families went beyond religion to save their lives By Shobha John 64
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HEN Raksha Bandhan came this year, Gohil Haresh, a 44year-old photographer from Borivali in Mumbai, celebrated it with his new “sister”, Zeba Mehamood, a Muslim, and gifted her `1,000. Though Zeba is not his blood relative, she is almost like family to him. “She saved my life, how can I ever thank or repay her?” he asks emotionally. Similarly, Zeba’s brother, Talat Haider, a 39-year-old businessman from Allahabad, is close to Pooja Ghanshyam Malvi, Haresh’s sister, who stays in Mumbai. By a strange quirk of fate, she and Zeba have been like guardian angels to Haider and Haresh respec-
GUARDIAN ANGEL (from left) Talat Haider with Apollo’s Dr Subash Gupta and Zeba, his sister
tively. Not surprising. They gave a part of their livers to these cirrhosis patients. If all this sounds confusing, read on. FILMY STORY Quite like a film script, the lives of four families were intertwined with each other as they battled to save their loved ones. In an unusual swap liver transplant, a Hindu family and a Muslim one, came to each other’s rescue at Delhi’s Apollo Hospital in June. It was the first such case in Apollo, which does some 300 liver transplants on living relatives. The swap transplant took place as Zeba gave part of her liver to Haresh, both with B positive blood group, while Pooja donated to Talat, both with A positive blood group. “Both
Talat and Haresh had NASH—nonalcoholic steatohepatitis—and were malnourished, had nausea, liver inflammation and were in and out of various hospitals for months,” says Dr Subash Gupta, senior consultant, liver transplantation surgery, Indraprastha Apollo Hospital. “While Haresh had swelling in the legs and pain in the abdomen, along with jaundice and renal failure, Talat had a large amount of fluid in the body which had to be drained out and replaced with albumin,” he adds. So how did all four meet? Haresh was referred to Dr Gupta by Dr Anil Suchak, an anaesthetist from Mumbai, who got his liver transplanted by him eight years ago. “Talat was another patient of mine and was on the verge of a swap transplant a year back with a UK family. But INDIA LEGAL November 15, 2014
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HUMAN INTEREST/ swap liver transplant
“I follow Muslim customs, be it offering namaz or doing roza. No one has time to think of religious differences. Our transplant story is testimony to the fact that these differences don’t matter.” —Anamika, wife of Talat Haider, a liver transplant patient
HAPPY FAMILY Anamika with her husband, Talat, and children, Anamta and Ahad
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his sister, Zeba, backed out as she has some medical problems. On top of that, Indian law does not allow swap transplants with foreigners. Once Zeba got well, I remembered Haresh’s case and as the blood group of both brothers and sisters matched, we decided to go ahead with the operation,” says Dr Gupta. RELIGION OF HUMANITY But there were hurdles to be crossed. Was it easy for the families, two Hindu and two
Muslim, to trust each other and go in for such a major operation? In a climate where “love jehad” was raked up by vested political interests in certain states to create a schism between both communities, would the bonds of humanity transcend religion and narrow-minded walls? What would the first meeting between all four be like? Except for Talat, the other three stay in Mumbai. Pooja, like Haresh, resides in Borivali, while Zeba stays in Mahim. “I had a tough time before this operation took place. For 8-9 months, I had been admitted at least seven times to various hospitals in Mumbai. However, I was told the operation would cost me around `40 lakh in Mumbai. This was way beyond my budget. Luckily, Apollo offered me a package for `19 lakh, and I decided to do the operation there. But when I was told by doctors that my donor would be a Muslim, I must admit that for a few seconds, I didn’t know what to say. I am a pure vegetarian and I had qualms. Fortunately, Zeba too is vegetarian. My apprehensions were further eased by my doctors. Also, I knew this transplant would ease the pain of two families. I gave my ok and am happy I did,” Haresh remembers. As to why he was apprehensive at first, he says that he had no Muslims friends and knew little about the community, except that they were different. “I wondered how they would be. But when we all met at Malad, we vibed well. Both Talat and Zeba are educated and seemed just like us. We met 2-3 times again and were together for one-and-a-half months during the operation formalities. We became closer than blood relations,” he says. He meets
Zeba often and even celebrated Rakhi with her this time. He says philosophically, “Just like all five fingers of a hand are different and serve different purposes, so too, people are different.” For Talat, meeting Haresh and Pooja in May 2014 was a god-send. “I can never forget the sacrifice Pooja made. Both she and my sister would always cry over their brothers’ plight. We all fight in the name of religion, but it has no meaning. I married a Hindu; her name is Anamika, which means ‘nameless’. And in the 11 years since our marriage, she has completely subsumed herself in my family. I have two children—Anamta and Ahad, both starting with the alphabet ‘A’ after their mother, Anamika. I go for the marriages of all her relatives, be it in Allahabad, Kanpur or Agra. As for Haresh, I speak to him every 10-15 days. Our bond will always be alive and I will visit him in Mumbai after I completely recover.” WARM ACCEPTANCE Anamika, a warm voice over the phone when India Legal called her in Allahabad, said she followed all the Muslim customs, be it roza or offering namaz. “I also make Muslim delicacies, be it biryani or seviyan, though I don’t have non-veg. I also celebrate Diwali.” Does religion matter? “Though my parents have not accepted my marriage, my relatives have. Frankly, no one has time to think of religious differences, as everyone is too busy trying to live a life. Our transplant story is testimony to the fact that these differences don’t matter. I would have donated a part of my liver to my husband, but was told I didn’t have enough of the organ to do so,” says Anamika. Finally, on June 17, 2014, the four operations were done on the same day at the same time. “This is done so that no party backs out after their operation is done. After all, this is voluntary,” explains Dr Gupta. The operations were a mind-boggling and intricate co-ordination of doctors, nurses and technicians. “Each operation had three surgeons, two anaesthetists, two nurses and two technicians, making it a total team of 36 working to save the lives of Haresh and Talat.” Truly a remarkable feat. But before the operation took place, doctors gave all parties a cooling off period. “This allows them to withdraw if they have any
Transplant lacunae Transplants can be done only with close relatives, limiting the number of donors available to critically ill Indian patients. This is done to avoid monetary transactions According to the Transplantation of Human Organs and Tissues Rules, 2014, if a donor or recipient is a foreign national, the approval of the authorization committee has to be obtained. But due to cumbersome paperwork, embassies of the said countries aren’t always eager to fill up the forms No medicines have yet been found to dissolve scar tissue which forms in a badly damaged liver. This would be a god-send for doctors There is a big gap between availability and demand, with more than 25 percent of patients dying before they get a cadaveric liver donor
doubts or apprehensions. Though nine out of 10 operations are successful, there is also a high risk of mortality,” informs Dr Gupta. The parties also have multiple counseling sessions by doctors, hospital-appointed counselors and the ethics committee of Apollo, and are told clearly about the possibility of death. They are, then, sent to a psychiatrist to evaluate their mental make-up. As for religion, that topic never came up, says Gupta. “When it is a matter of life and death, what place can religion have? Religion is not an issue for most Indians, and should ideally be kept at home. And we doctors have only one religion—of humanity,” he says. IL
RELIGION OF HUMANITY (From left) Donor Pooja stands with her recipient Talat, while Haresh stands next to his donor, Zeba
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CASE STUDY / suicides
Anthony Lawrence
DEATH WISH
an increasing number of Indian youngsters are embracing suicide. and the laws dealing with this grave problem are peculiar By Rashme Sehgal A teacher from a leading Delhi school catches a Class X student using social media during class. “I need to speak to your parents,” she tells him. During lunch recess, the distraught student slashes his wrist. Anita * an attractive 14-year-old girl from an affluent family, tells psychiatrist Dr Saurabh Malhotra of Medanta Hospital: “I feel sad all the time. I feel like dying.” 18-year-old Sujata* is brought to a Delhi hospital with cuts on both her wrists. “When I see blood oozing out of my body, it gives me a sense of comfort,” she tells a doctor at VIMHANS in Delhi. Another 18-year-old girl with 86 percent marks in her board exams, takes her life because she did not get admission to a college of her choice. (* names changed to protect identity)
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HESE are but a few instances of young, educated Indians despairing and taking their lives. In India, suicides have become the number one cause of deaths among adolescents and young people. Shockingly, a study done by Dr Anuradha Bose at Christian Medical College, Vellore, found a high number of such deaths. Dr Bose said: “Suicides account for between 50 to 75 percent of all deaths among adolescents.” The study, which was published in The Lancet, found that the suicide rate in the 15-19 age group for those in Vellore was 148 per one lakh women and 58 per one lakh men. This shows that three times more younger women were committing suicide than men.
These findings have been reinforced by Dr Vikram Patel of the London School of Hygiene and Tropical Medicine in a study, which found out that suicides cause twice as many deaths as HIV/AIDS and about the same number as maternal mortality cases among young women. Dr Malhotra insists: “There are several reasons for this exponential rise in suicides. Young people are witnessing a great deal of friction in their homes. There is no parenting in a large number of families. The social fabric of our society is breaking down.”
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he problem is compounded by young people being under increasing levels of stress. Malhotra says that the number of calls to their suicide helplines has risen dramatically. “Drug abuse among youngsters is rampant. This makes them more impulsive. Their mindsets have become so fragile that tolerance levels have reached an all-time low,” he adds. This problem has been worsened by peculiar laws regarding suicide that have remained unchanged for the last 150 years in India. A person found abetting or instigating suicide can be convicted. Strangely, attempting suicide is also an offense and can result in one year’s imprisonment. Dr Sonali Bali, a psychiatrist at VIMHANS, says: “It’s a regressive law that needs to be changed. Youngsters are already leading isolated lives, leaving them feeling disconnected. Many suffer from depression. Locking them up in jails is hardly the solution.” And the reason why India has the highest suicide rate amongst the young, says Bali, is because Indians know very little about depression or how to cure it. “There are many myths related to medication. Anti-depressants are not addictive and if taken for a few weeks, help improve the mental health of a patient. Counseling helps only in cases of mild depression, otherwise an individual has to be put on medication,” she explains. Mental health services in India are abysmal and can’t cope with the pressure of a large number of patients. “We have only 3,000 psychiatrists for a population of 125 crore and even they are concentrated in metros,” says Bali. Even while suicide rates among youngsters have gone up, among grown-ups too, the pressures of life are catching up. The National
Crime Record Bureau (NCRB) statistics reveal that the rate of suicide is increasing by 20 per cent annually. While men opt for suicide due to bankruptcy and other economic pressures, women do so due to emotional reasons, with dowry being one of the main reasons. We also can’t ignore rural India. The Lancet study found that suicide rates here were almost double that of urban areas, with farmers leading the way. A recent WHO study on suicides found that out of the 2.58 lakh people who committed suicide in India in 2012, 1.58 lakh were men, and the rest, women. However, Virag Dhulia of Save Family Foundation says that the increase in suicides by married men has not been sufficiently highlighted. Dr Bose says that suicides are more rampant among women. Clinical psychologist Dr Sheljja Sen believes that suicide rates among adolescent and married women often go unreported. “Attempting to commit suicide often provides relief from depression among females, which is not the case with men. So when they commit suicide, it is more serious and harsh and results in death,” says Sen.
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r Samir Parekh, director, Mental Health and Behavioral Sciences, Fortis Healthcare, found that a large number of suicide victims get their ideas from television, internet and other social networking sites. “The impact of media in increasing suicides cannot be underestimated. Past studies have also clearly established strong links between media viewing and aggression, leading to self-harm and impacting an individual’s moods and selfesteem,” he says. “I was shocked to learn that 85 percent of the 3,000 respondents interviewed for a survey of mine, felt that suicides were attention-seeking behavior. That is such a misconception. We need to spread awareness so that people overcome their hesitation in talking about this issue and better help people who might be contemplating suicide,” he says. Parekh and other psychiatrists are convinced that India needs suicide awareness strategies in schools, homes and communities. They also want a national suicide prevention policy to improve people’s capacity for self-help and to prevent suicide. After all, life can be beautiful. IL
We have regressive laws regarding suicide. A person found abetting suicide can be convicted. Attempting suicide is also an offense and can result in one year’s imprisonment. But locking up a depressed youngster is hardly the solution.
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SPORTS/ cricket / india / virat kohli
UNI
team india must have heaved a sigh of relief seeing the batsman regain his touch against the windies. but knowing kohli’s pursuit of excellence, it wasn’t a surprise By Gaurav Kalra 70
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HEN Virat Kohli went to England this July, he was a prodigy en route to becoming a colossus. For the last couple of years, the right-hand batsman had established himself firmly as the best young batsman in the world. With 25 international hundreds already to his name, Kohli was expected to carry his sparkling run into his first Test tour of England. Instead, he was confronted with a brutal reality check. In 10 innings over five Test matches, Kohli made all of 134 runs at a shocking average of 13.40. The canny England fast bowler James Anderson repeatedly entrapped him as India imploded dramatically to lose the series 1-3. In the one-day series that followed, the team bounced back, but Kohli could
Middling the ball not, making just 54 runs in four innings at an average of 18. It was only in the lone T20 international, which wrapped up the tour, that Kohli managed to get past a half-century. It was far too little and far too late.
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s a new season against the West Indies started in India, a chastened Kohli showed signs of picking up the pieces. His measured half-century in the second one-dayer at his home ground Ferozeshah Kotla in Delhi, and his rollicking 127 in the fourth game at Dharamsala was an indicator of that elusive form returning. The miserable summer in England was, without a smidgen of doubt, a speed breaker in a journey that was progressing rapidly on the path of glory. It is a burden Kohli has loaded upon himself—to build a legacy, to carve a permanent place in history, to be remembered as a legend. Unlike many peers, Kohli doesn’t merely live for the moment. “I have been lucky enough to learn at the international level. You settle down very quickly, you learn to play in different situations, playing against the best in the world,” Kohli had told this writer in an interview in August 2013. “My dream was just to play for India, and get one hundred and then another one. You don’t really realize when you are playing but when you sit down alone and think about, it’s a bit scary at times.” Setbacks aren’t an unfamiliar territory for
Kohli. In his debut Test series in the West Indies in 2011, after experiencing the joy of a victorious World Cup campaign, Kohli was brought crashing down to earth. In the three Tests in the Caribbean, he could amass only 76 runs at a dismal average of 15.20. He was promptly dropped. Later that year, he
RARE OCCASION (Facing page) Kohli’s poor show during the England Test tour was only a hiatus in his path to glory (Below) Kohli showing his deft touch against the West Indies in India
Virat Kohli has shown repeatedly that he learns quickly. He will know there can be no repeat of the England failure on the Test tour of Australia in December-January.
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SPORTS/ cricket / india / virat kohli
Return of the prodigal Under the enchanting beauty of the Himalayas at Dharamsala, Virat Kohli found the sparkling glow that had defined his batting. While the fourth ODI was played under the shadow of the imminent pullout of the West Indies team from India tour due to a pay dispute with its cricket board, Kohli produced an impeccable knock. It was his 20th ODI century and he is now third behind Sachin Tendulkar and Saurav Ganguly for the most centuries by an Indian, and the seventh highest ever. His 127 runs included 13 fours and three sixes and set up a 59-run win for India, also handing it the truncated series 2-1.
“A 30-40 in an IPL game is nothing compared to a 10 not out or 15 not out at the end of the day that helps another guy win the game for your team in a Test.” —Virat Kohli returned for the tour to Australia, where the team was whitewashed but Kohli sparkled with his first Test century at Adelaide and finished as India’s highest run-getter in the series Down Under.
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t sparked off a spectacular run that saw Kohli produce jaw-dropping performances across the cricket globe. “It’s hard for me to believe I’ve got these many centuries in international cricket,” he said. “I just like to forget that moment quickly... I don’t want to think about it too much and start doubting myself, thinking that it’s come too early.” It is the clarity in Kohli’s thought process that is quite striking. Unlike his many contemporaries, Kohli isn’t weighed down by the task of securing a permanent place in all Indian teams. That goal has been accomplished. He aspires to be counted among the very elite to have played cricket. While his one-day record is spectacular, Kohli has no doubt that the measure of a cricketer’s standing is his success in Test matches. “My immediate goal is to get to an average of 50 in Test cricket and maintain that. I want to be known as a good Test player first and then adjust to all the other formats,” he said. In fact, it surprises him when younger players don’t quite appreciate the value of the longest format. “They should know that getting through a situation in Test cricket is far more satisfying than anything else you will ever achieve in your life,” he said. “A 30-40 in an IPL game is
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nothing compared to a 10 not out or 15 not out at the end of the day that helps another guy win the game for your team in a Test match.” It is striking how the on-field persona of a combative individual is in complete contrast to an almost eerie serenity off the field. The image of a brash, tattoo-clad, arrogant bad boy makes him chuckle. “I’ve heard these things so many times that they don’t even bother me anymore. I’ve had these tags along the way but some people, when I do well say, this is the way forward; this is the way to be in the face of the opposition. When we don’t do well, these tags come back,” said Kohli. “I don’t intend to change the way I think about the game but obviously crossing the line is something that’s not on. I’ve curbed that to a major extent and I aim to do that in the future as well. I’ve made mistakes in the past, but if you keep judging someone from the age of 19 when he came into the side and keep putting pressure on him, then some people get irritated, but I’ve learnt from it.” Over his six-year international career, Kohli has shown repeatedly that he learns quickly. He will know there can be no repeat of the shambles of England on the tour of Australia coming up in December. And then, there is the small matter of defending the World Cup. As an 18-year-old, Kohli showed up to bat for Delhi in a Ranji Trophy game just hours after his father died and made a match saving 90 runs. He knows what it is to be down, but not what it is to be out. IL
GLOBAL TRENDS/ student movements
STUDENTS OF THE WORLD REVOLT Across the globe, these unrests have been agents of forward march of society and civilization in modern times By Sim Tack
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S student protests in Hong Kong continue, memories of the 1989 Tiananmen Square demonstrations naturally spring to mind. Less iconic but no less notable were the Hungarian Revolution of 1956, which began as a student movement; the 2007 Venezuelan protests, which started with a group of students demanding constitutional reform; and the 1929 protests in Paris, which
challenged the role of churches in education. Of course, each student movement is unique; the one underway in Hong Kong concerns Hong Kong affairs, not widespread democratic reform in China proper. And yet, all such movements share characteristics that transcend borders, making them an ideal phenomenon through which to study geopolitics. Student protests lay bare the social and cultural layers that move beneath the surface of geopolitics, much like subsurface currents flow beneath the waves of oceans. Human geog-
THORNY ISSUE FOR CHINA (L-R) Students protest at Tiananmen Square in 1989, which was brutally dealt with by the authorities; the current pro-democracy protest in Hong Kong UNI
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GLOBAL TRENDS/ student movements
The current protests in Hong Kong will not be the last time China faces social unrest. And the Communist Party will inevitably face more pressure as China changes. SHAPING HISTORY (Above) The Iranian Revolution of 1979, which changed that country’s political trajectory; (Facing page) The 2007 Venezuelan protest for constitutional reforms
raphy forms the foundation of society and thus the systems that govern it. Even if we regard the state as the highest level of global policymaking and interaction, these social undercurrents are what move the generations, ideologies and cultural changes that shape the constraints under which states operate. PATTERNS EMERGE From ethnic and religious sects to socio-economic divisions, human geography is as important to a state as the physical topography and resources that constitute it. Human geography exists in all states, and as with physical geography, revelatory, even educational, patterns emerge over time. The way in which the ruled rise up against the rulers is one such pattern. These kinds of movements take a variety of forms, from peaceful demonstrations and strikes to violent insurgencies. Of these, student protests are perhaps the most intriguing because of the unique position in society that students occupy—they are at the vanguard of a generation that often differs markedly from that of their forebears. It is at this fault line that competing ideologies and
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changing cultural identities collide. That they are students means they are intellectually engaged, frequently espousing distinct political beliefs. But to be successful, student movements must galvanize the other areas of civil society. In that regard, they are often a good catalyst for change. Students are already grouped together at universities, often in urban areas, enabling student campaigns to evolve into broader protest movements. Of course, social media has made physical congregation somewhat obsolete, but proximity still simplifies the logistics of political action. Even under ideal circumstances, student movements can fail, and indeed, history is rife with failure. But more often than not, student uprisings tend to be part of longer-term social, cultural or political change. After all, when student protests disappear, students themselves often go on to become part of a more mature generation that retains much of its ideological conviction. Think, for example, of the May 1968 movement that shook France and several other countries in Europe. Despite failing to achieve many of its goals as it occupied university buildings in Paris, the baby boomer generation later became part of post-graduate society, fomenting far-reaching social and cultural change throughout Europe. When a student movement fails to create change, oftentimes it will join or be subsumed by an existing political movement, acting either as a force that advances change or one that highlights the continuation of ongoing social trends. France’s revolution in June 1832 is a prime example. The notion of popular sovereignty had been in place ever since the French Revolution ended the monarchy. The return of the monarchy in 1814, after Napoleon’s fall, however, ultimately compelled students to take to the streets in what was essentially an extension of the very same social pressures that had dominated the internal evolution of France for more than three decades. These particular protests in 1832, eternalized in Victor Hugo’s Les Miserables, were struck down. But the underlying desires of the masses persisted, culminating in 1848, when the “Year of Revolution” saw the final collapse of the monarchy in France and generated a broader wave of social change throughout Europe.
Student campaigns have by no means been relegated to Europe. The United States witnessed profound student activism during the late 1960s and early 1970s, when the anti-war movement brought about countless protests. At its core was a demographic shift—the baby boom, which spawned the primary group challenging policy at the time. Of course, these movements did not end the war in Vietnam; they barely convinced Washington to end the draft. When student movements emulate broader social unrest, the results can be dramatic. In 1979, the Iranian Revolution radically changed the political identity of the country, facilitated in part by students who stormed the US embassy in Tehran. The ensuing hostage crisis united many sections of Iranian society in support of the revolution. Ironically, it was this generation of students that put down a later generation of students during the 2009-2010 Green Revolution. A SOCIETY IN MOTION Even prior to the current Hong Kong protests, China has had a rich history of student activism influencing society. In fact, the establishment of the People’s Republic of China itself had its roots in student movements: Mao Zedong and Zhou Enlai discovered socialism and began to organize politically as student leaders in the early 20th century. In 1919, the May 4th Movement, which grew out of student demonstrations, arguably ushered in what would become the beginning of China’s contemporary history when it lashed out against Beijing’s response to the Treaty of Versailles. Students were also at the forefront of the Cultural Revolution in 1966. They helped reinforce the personality cult of Mao, as Chinese citizens revolted against capitalism and traditional Chinese culture. It was student repudiation of university leaders accused of opposing the Chinese Communist Party that initiated the actual protests, which in turn, started the
Cultural Revolution—something much larger than a student cause, to say the least. Considering China’s long history—and the history of student movements—the current protests in Hong Kong will not be the last time China faces social unrest. As a one-party state with immense geographic, social and economic diversity, China has faced significant calls for reform throughout the years. And the Communist Party will inevitably face more pressure as China changes. For China’s is a society in motion: Rising urbanization and private consumption have altered the interests and expectations of Chinese citizens, and as expectations rise, so too will pressure on the government to meet those demands. Along with the emergence of a Chinese urban consumer class, there has been a veritable explosion in the number of students in China as higher education has expanded over the past decade. China is spending more money on higher education to create an educated work force better suited for the economy to which China aspires. But creating more students creates more opportunities for social unrest. Because of their position in the human geography, students will often be at the front of generational changes in their respective societies, even if they are not always the most decisive agents of change. IL
Courtesy Stratfor INDIA LEGAL November 15, 2014
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IS THAT LEGAL?
Say no to dissection Dissections have been banned in Indian labs. How will life scientists now conduct their experiments? Are dissections banned in other countries as well? Although dissections have been banned in Indian laboratories by the Union Ministry of Environment and Forests, molecular research scientists are an exception. Now research work will be conducted on a computer simulator, mannequin models, and from CDs, which are
not only modern but also easy to teach anatomy or physiology as well. Dissections are banned in other countries too. Argentina banned it in schools in 1987, Slovakia did so in 1994, Israel in 1999, and Italy in 2005. As far as India is concerned, dissection was optional for students in 1998. But in 2001, the Central Board of Secondary Education banned dissection of mice, rats and frogs.
Illustrations: Aruna
Play it safe with disclaimer Many popular movies and comedy shows on television exude bias against dark-skinned, fat, gay and other categories of people. Even community typecasting is rampant. While those watching have a good laugh, some of the jokes are outright scandalous and racist. Can legal action be initiated against concerned people? According to Article 19(a), all citizens of India have the right to freedom of speech and expression but subject to Article 19(2) that puts restrictions in case of public morality, decency, contempt of court, defamation or incitement to an offense. There is always some disclaimer shown, before the show or movie starts. It normally reads: “All characters appearing in this work are fictitious. Any resemblance to
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real persons, living or dead, is purely coincidental�. The disclaimer may be worded differently depending on the nature of the show or movie, and is issued as a bulwark against legal action.
No prejudice in education While the Right to Education Act provides for a composite classroom in schools, many run special classes for the underprivileged in evenings. Is this allowed under the law? It may be alright for schools to run separate classes for the underprivileged under Right to Education Act, but the practice is not allowed under the Right of Children to Free and Compulsory Education (RTE) Act, 2009. The act, which represents the consequential legislation envisaged under Article 21A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. Article 21A itself says that the state shall provide free and compulsory education to all children of the age of six to 14 years in such a manner as the state may, by law, determine. The onus lies on the state to frame a law restricting schools from conducting or running special schools in the evening so that the underprivileged children can be accommodated in the formal school curriculum.
Question of child rights The Indian notion of parenting is quite different from that of the West. While in the West, a spank might deprive a couple parenting rights, in India, parents feel it is the only way to discipline a child. Can over-strict or temperamental parents in India too risk legal action? In India, punishing one’s own child is very much a part of the upbringing as parents are considered the “first teacher” of the child. Scolding, slapping or beating the child is one form of disciplining and culti-
vating acceptable manners in an errant child. In the US, if parents resort to corporal punishment it can become child abuse. India, too, has taken steps on this issue. The Juvenile Justice (Care and Protection of Children) Bill 2014, introduced in parliament recently, considers hurting, abusing, or hitting a child an offence. If the bill is passed, parents and teachers may be sent to jail, with terms ranging from six months to three years.
Flouting laws on bursting crackers There’s a wide-ranging campaign to ban crackers, with children taking the pledge not to use them. Yet, crackers are burst, leading to severe sound and air pollution during Diwali. Can anyone take legal recourse to demand his or her right to peaceful and smoke-free surroundings? Under Article 21 of the constitution, a person can seek legal action but only to the extent that it is not curtailing the religious right enshrined under Article 25. However, the judiciary has already
laid down clear-cut regulations by stating that one cannot burst crackers from 10 pm to 6 am during Diwali. It has also observed that bursting of crackers do not violate the religious rights of a person enshrined under Article 25 of the constitution. This court’s directive needs to be carried out by a district magistrate, or the concerned police authority in the area. An aggrieved person can inform the police, which can then take stern action against the concerned people.
Problem of waste disposal Every household in India produces so much garbage and waste that it has now taken humongous dimensions. Every time a house is renovated, the debris is thrown in the streets. And come Diwali, the streets are choc-a-bloc with wrapping papers, burnt crackers, sweet boxes, etc. Do other countries have garbage tax or strict laws to avoid the practice of throwing waste?
Garbage or trash is considered as municipal solid waste or everyday items discarded by people. This include bio-degradable waste; inert waste (construction and demolition debris), electrical and electronic waste, hazardous waste (paints, chemicals, light bulbs, fertilizers, etc), recyclable materials, toxic waste, etc. Garbage tax, in the form of Pay As You
Throw (PAYT) principle, based upon usagepricing model for disposing off municipal solid waste is applicable in North America, Mexico, Brazil, and European countries, such as Austria, Germany, Spain, France, Belgium, Finland and UK. Asian countries, such as Taipei, Korea, Thailand, Vietnam, China, and Taiwan are also implementing this system.
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INTERNATIONAL BRIEFS
Court admits petition against Sharif THE Lahore High Court has admitted a petition seeking disqualification of Pakistan’s Prime Minister Nawaz Sharif on money laundering charges. The court has ordered a five-member bench to hear the case. The case has been pending since 1991. The last hearing, before a different five-judge bench, happened four years ago. The
case was put in cold storage after one of its members refused to hear it due to personal reasons. The petitioner, Barrister Javed Iqbal Jafree argued that under Articles 62 & 63 of the constitution, Sharif should be disqualified as he had caused a huge loss to the exchequer by parking money in foreign countries. PIB
“Courts do not exist to win popularity” JUSTIFYING the prison term of five years to Oscar Pistorius, North Gauteng High Court judge Thokozile Masipa said that courts did not exist to win popularity contests. She said that the primary duty of the courts was to dispense justice. Anticipating a backlash over the short duration of jail term, Masipa said: “We ought to differentiate between what is in the public interest and what society wants.” She said that although she could not reverse the tragedy, she sought to give a balanced judgment. Paralympian Pistorius had killed his girlfriend, 29-year-old Reeva Steenkamp, shooting four times through a locked toilet door on Valentine’s Day last year. He would be eligible to apply for the provision of serving the rest of his term under home arrest after 10 months. Gender activists are enraged that Pistorius was convicted for culpable homicide and not murder. However, Reeva’s parents say that they were satisfied with the judgment.
Zuckerberg’s warning to law firms FACEBOOK is suing four US law firms and their counsels for representing Paul D Ceglia, who claims that he owns shares of the social networking site worth $200 billion. In a complaint submitted to the New York State Supreme Court, Facebook’s founder and Chief Executive Mark Zuckerberg has accused the firms representing Paul D Ceglia’s “fraudulent” claims as being part of a conspiracy. The complaint says that the lawyers representing
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Two-year jail for cyber bullies INTERNET trolls in the UK could get up to two years of jail for intimidating someone online. The UK parliament would bring in amendments to the Criminal Justice and Courts Bill and the Malicious Communications Act. If the amendments go through, the maximum prison sentence for the most severe cases could rise from six months to two years. UK Member of Parliament and Justice Secretary Chris Grayling said in a statement: “The sending of abusive messages or material online can cause absolute misery for victims and we need to make sure that people who commit these awful crimes are properly punished.” The new law would cover any form of electronic communication which conveys a message that is “indecent or grossly offensive, or conveys a threat or false information” sent “with the purpose of causing distress or anxiety to the recipient.” The law comes after a UK model, Chloe Madeley, received rape threats online as a backlash for her TV presenter mother’s comments criticizing the short duration of jail term given to a UK footballer, convicted of rape.
Ceglia must have known that the lawsuit was a fraud. Facebook has sought punitive damages from these firms, and some of their advocates. Calling Ceglia “a convicted felon with a history of fraudulent scams”, the complaint says that his claim on Facebook’s share was based on forged documents. Ceglia is a former internet entrepreneur who has claimed that Zuckerberg had promised him a 50 per cent stake in the social networking site. In 2012, Ceglia was charged with fraud for faking mails and wires to show that he had a contract on share ownership with Zuckerberg, signed during the social media mogul’s Harvard stint.
Y L D R WO ISE
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have fun with english. get the right answers. play better scrabble. By Mahesh Trivedi
ANSWERS
2. A spunk rat is .... A: physically strong B: mentally ill C: sexually attractive D: very intelligent 3. What’s a “throne room”? A: Antechamber B: Toilet C: Headquarters D: Brothel 4. Are you a “big-noter”? A: Braggart B: Wealthy C: Hypocrite D: Swindler 5. Born and bred, do or die but chop and .... A. chew B. change C. check D. chill
B: Rib joint C: Narrow bed D: Sink 8. Nouvelle cuisine is .... A: African B: German C: Italian D: French
7. Euphemism for “prison”. A: Sheriff’s hotel
15. Gobsmacked. A: Drunk B: Kissed C: Stunned D: Sacked
9. Big D. A: First date B: Boss C: Death D: Heavy debt 10. Chinese bookkeeping. A: False accounting B: Perfect accounting C: Faulty records D: Error-filled record 11. A stool pigeon. A: Police informer B: Goon’s accomplice C: Politician’s aide D: Henchman 12. Internet slang AFK. A: A French Kiss B: After First Kiss C: All Females Know D: Away From Keyboard
6. Heard of “xtc”? A: Extra charges B: Drug Ecstasy C: Same as etc D: Ex-terrorist chief
A: Bourgeoisie B: Bourgeoise C: Bourgeosie D: Buorgeoisie
13. A guilty conscience needs no .... A: witness B: accuser C: advice D: proof 14. Spell it right.
16. Hasta la vista. A: How do you do? B: Sorry! C: Goodbye! D: Thank you! 17. Which usage is correct? A: By hook or crook B: By hook and crook C: By hook and by crook D: By hook or by crook 18. Used in air gun. A: Palet B: Pellet C: Pallet D: Palette 19. A boffin is a .... A: scientist B: buffoon C: grave-digger D: clown 20. To box the compass is to .... A: do the impossible B: arrange properly C: make a reversal D: put off plans
1. Pickpocketing 2. sexually attractive 3. Toilet 4. Braggart 5. change 6. Drug Ecstasy 7. Sheriff’s hotel 8. French 9. Death 10. False accounting 11. Police informer 12. Away From Keyboard 13. accuser 14.Bourgeoisie 15. Stunned 16. Goodbye 17. By hook or by crook 18. Pellet 19. scientist 20. make a reversal
1. Britons call it “the smother game”. A: Pickpocketing B: Wife-beating C: Mass media D: Mass killing
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
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PEOPLE / celebrating life
CHILDREN’S CARNIVAL International Children’s Day celebrations in Krasnoyarsk, Siberia, saw thousands coming out on street to take part in a procession showcasing dance forms and folklore of different cultures
FLYING FISH A participant from the US flies a kite in the shape of a ray fish during the Kelantan International Kite Festival 2014 in Tumpat, Malaysia
AERIAL DANSEURS Male folk dancers rehearse ahead of the Navratri festival BALANCING ACT Women dressed in traditional attire balance pitchers as they rehearse for the Garba dance in Ahmedabad
TURBANATORS Foreign tourists participate in a turban tying competition during the Marwar festival in Jodhpur Photos: UNI
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