india legal 15 november 2015 by India Legal

Liberated sex workers turn into paralegal volunteers RAMESH MENON

NDIA EGAL I L

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November 15, 2015

STORIES THAT COUNT

NJAC

Your Lordships, We beg to differ Exclusive details and analysis of India’s hottest judicial controversy 12

Justice Jagdish S Khehar Justice Kurian Joseph

Special column IURP -XVWLFH NARENDRA CHAPALGAONKER

20 Justice Adarsh K Goel

Justice J Chelameswar

VIPIN PUBBY: 6WDWHV RIIHU largesse to ODZ RIÀFHUV

Justice Madan B Lokur

SHOBHA JOHN: New guidelines to make Á\LQJ VDIHU

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

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

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

NOVEMBER 15, 2015

VOLUME. IX

ISSUE. 05

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Associate Editor Meha Mathur Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar

LEAD

The collegium conundrum

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma

While the Supreme Court struck down the NJAC Act, key questions regarding the inefficacy of the collegium system remain. INDERJIT BADHWAR in his editorial, and RAMESH MENON in the lead story, analyze the judgment threadbare. Plus, an opinion piece by retired JUSTICE NARENDRA CHAPALGAONKER

Circulation Manager RS Tiwari

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OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001.

November 15, 2015

SOCIETY

Parents of a lesser God? In rejecting government guidelines granting adoption rights to single parents, the Missionaries of Charity, founded by Mother Teresa, have forgotten that society has changed, writes SUJIT BHAR LEGAL EYE

Money down the drain

Punjab and Haryana High Courts have on their payrolls a large battery of law officers, often recruited on questionable grounds. VIPIN PUBBY reports

CONTROVERSY

Not in step with the times Despite court rulings, Maharashtra is adamant on continuing with its ban on dance bars. MEENA MENON and AJITH PILLAI question its stand

26 34

SPECIAL REPORT

Silver lining at last

Sex workers in parts of Karnataka and Telangana feel empowered, thanks to their new role as paralegal workers. RAMESH MENON reports from Anantapur and Bengaluru RELIGION

Faith matters

The Jain custom of Santhara—voluntary end to one’s life through fasting—brings up the issue of whether religion is more important than the law of the land. KALYANI SHANKAR reports

Successful take-off? SHOBHA JOHN details the government’s move to develop 100 airports in small cities and the skepticism regarding this ambitious plan ECONOMY

62 66

Tall claims?

RAJENDRA BAJPAI questions a London-based consultancy firm report that India received more FDI than China in the first half of 2015 HEALTH & ENVIRONMENT

Medically unfit All is not well

An extract from TN NINAN’S book The Turn of the Tortoise, which discusses India’s strides forward and how we have regressed in certain areas AVIATION

Making flying safer

Following the Germanwings plane crash, a new set of guidelines have been evolved for pilots and aero-medical examiners. SHOBHA JOHN reports

Medical set-ups recklessly dump waste, including syringes, body parts and fluids, which percolate into the soil and enter the food chain. It’s a medical time bomb ready to explode, writes PAPIA SAMAJDAR

REGULARS

BOOKS

Ringside......................................................................6 Quote-Unquote...........................................................7 Edit................................................................................8 Supreme Court............................................................22 Courts......................................................................... 24 National Briefs.............................................................33 International Briefs.......................................................41 Campus Update..........................................................78 Figure It Out................................................................80 Wordly Wise.................................................................81 People......................................................................... 82 Cover Design: ANTHONY LAWRENCE Cover Photos: JS STUDIO

INDIA LEGAL November 15, 2015

VERDICT Justice and judgment lie often a world apart. Emmeline Pankhurst

November 15, 2015

QUOTE-UNQUOTE

“I find it hard to apologise for removing Saddam. I think, even from today in 2015, it is better that he’s not there than that he is there. Of course, you can’t say that those of us who removed Saddam in 2003 bear no responsibility for the situation in 2015.” —Former British Prime Minister Tony Blair, to CNN

“The shirtless protest staged by Youth Congress activists is an imitable one. Earlier, many Congress women who staged similar protest behind doors were given tickets to contest polls.”

“They hate Romila Thapar, Amartya Sen, Shelden Pollock. Fine, but come to the table with as much reading as them.... If they’re to be denounced now, they deserve the courtesy of being denounced by their equals, not by some plagiarist garden gnome…” —Aatish Taseer, on right-wing attacks on intellectuals, in The Times of India

—Former Congress leader Cherian Philips, on Facebook

“Everyone with an opinion faces attack! You’re safe only if you have no opinion. It’s crucial that people have opinions and express these....” —Author Anuja Chauhan, in The Times of India

“Knowledge is contained in books, not in coding. There is a great cultural deficiency in this city which is filled up by book stores. Reading a book on Kindle is like an insult to the book.” —Historian Ramachandra Guha, at the inauguration of Bangalore Book Festival

“Smita and I could never be friends. I have said it before and I do so today, that I have been guilty about making uncharitable remarks about her. I regret it.” —Shabana Azmi, at the book launch event of Maithili Rao’s book Smita Patil: A Brief Incandescence in Mumbai

INDIA LEGAL November 15, 2015

LETTER FROM THE EDITOR

INDERJIT BADHWAR

YOUR LORDSHIPS, WE BEG TO DIFFER

HE long-awaited tantalizing Supreme Court judgment in the NJAC case was out in the public domain on October 16—about four months after the conclusion of hearings. The court essentially struck down as unconstitutional the amendment that validated the National Judicial Appointments Act passed by parliament and thus paved the way for the continuance of the collegium system for the appointment of judges to the higher judiciary. Union Law Minister Sadananda Gowda reacted by saying the judgment was surprising. Arun Jaitley called it the “tyranny of the unelected”. As usual, the declared and undeclared spokesmen for the Congress party and other opposition parties attacked Jaitley and hailed the judgment. They were obviously guided by political interests, forgetting that all the parties had unanimously passed the legislation in parliament. Justice RM Lodha, the former CJI, advised a no confrontation course, but counseled improvement in the collegium system. To put things in perspective, one must examine the background and contours of the appointments issue. The “First Judges Case” in 1981, presided by a sevenmember bench, interpreted the words “shall in consultation with CJI in Article 217” to mean effective and meaningful consultation without giving primacy to the views of the CJI. The Second Judges Case in 1993, presided by 11 judges, interpreted the words “consultation in Article 124” to mean concurrence and that the views of the CJI along with two seniormost judges would be binding on the president.

November 15, 2015

This is how the collegium system was evolved. The interpretation was essentially a judge-made law not found in the text of Article 124. The interpretation of the word “consultation” was in the light of the constitutional debates, in which Dr BR Ambedkar rejected giving primacy to the views of the CJI and chose a mid-path of effective consultation with the CJI. In the Third Judges Case in 1998, presided by an 11-judge bench, the Attorney-General (A-G) at the outset submitted that the government does not want to seek review or reconsideration of the rationale laid down in the Second Judges Case. The arguments were addressed only on the question of reference made by the president. The Third Judges Case expanded the numerical strength of the collegium to the CJI plus four seniormost judges for elevation to the Supreme Court and transfer of the judges of the High Court. The CJI, plus two seniormost judges, were to be the collegium for appointment of judges and chief justices of High Courts. It was further laid down that the views of the concerned seniormost state judge in the Supreme Court should be taken. Since there were large numbers of vacancies in high courts that remained unfilled, the judgment in the Second Judges Case directed filling up the vacancies immediately. It prescribed the time-frame of the procedure. It was also stated that the Supreme Court collegium is an expert and the best judge to appoint suitable persons. Thus, it held that executive interference in the appointments is obviated, which

Anil Shakya

ensures the independence of the judiciary. The purpose for which the collegium system was evolved utterly failed. Neither were the vacancies filled up in time nor were efficient and suitable judges appointed to high courts to dispose civil, criminal and tax matters expeditiously. Cases of this nature are still pending for over 10 to 15 years. Also, a strong sense got ingrained in the high court collegium that it must remain obeisant to the Supreme Court collegium and to the state judge in the Supreme Court. All recommendations made by the high court collegium had to be in accordance with the wishes of the apex court collegium and state judge or there was the imminent risk of these being rejected. The reasons for rejection are not even made known to the high court collegium. For this reason, the vacancies in the high courts could not be filled up, and at times, unsuitable persons got elevated.

he lack of transparency and objectivity in the functioning of the collegium created lot of discontent among jurists and civil society. The Second Judges and Third Judges cases permitted recommendations with dissent but the collegium intelligently avoided recommending any case with dissent to prevent indulgence of the executive. The recommendations for appointment, nonappointment, transfer and complaints against the judges are not subjected to RTI and judicial review under the pretext that the litigative debate would result in erosion of credibility of the decisions.

The lack of transparency and objectivity in the functioning of the collegium created lot of discontent among jurists and civil society. In the case of a junior judge to be elevated overlooking his senior, it was said that the outstanding merit of the person recommended need not be compared with that of the senior judge bypassed. Only the outstanding merit of the person recommended be stated. The judgment of outstanding merit is also a subjective one. The collegium system has been criticized by Justice Punchi as judicial oligarchy. There were abortive attempts to establish a Judicial Commission in 1990 and 2003. The UPA government too was strongly in favor of creating a Judicial Commission. Both the houses of the present parliament unanimously passed the constitutional amendment to incorporate Article 124A and enacted the NJAC Act. The object of NJAC was to bring in transparency and objectivity in the matter of appointments to the higher judiciary which was being rampantly breached in the collegium system. The basic challenge against the NJAC before the Court was that it impinges the independence of the judiciary which is one of the postulates of the basic structure of the constitution. The constitution bench, presided by Justice JS Khehar, by 4:1 struck down

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

INDIA LEGAL November 15, 2015

LETTER FROM THE EDITOR

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

Photos: UNI

Integrity and probity is not the sole monopoly of judges. The object of participation of eminent persons is to only ensure transparency.... the NJAC and the constitutional amendment as ultravires as it scuttles the judiciaryâ&#x20AC;&#x2122;s independence. The wisdom of the judgment has to be judged by the reasons upon which the conclusions of the judgments are based.

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

November 15, 2015

seniormost judges in the NJAC; and (6) The judges elevated by a political lobby would be loyal to the political bosses and a sense of reciprocity will prevail in them. Thus, the judgments rendered in crucial matters may not be free and fair. There is a counter to the judgment. The first reason was that in the Third Judges Case, the Union government did not seek review or reconsideration of judgment in the Second Judges Case. But this cannot stop the parliament from enacting a law. (2) The fact that the government did not oppose the controversial appointments is also not a factor to prevent parliament from making a law. In fact, when there have been inappropriate compromises between collegium and the executive, the parliament has every right to enact a law which is more transparent and objective. (3) Itâ&#x20AC;&#x2122;s again a myth that the memorandum of procedure gives fair and adequate participation for the executive. The recommendations from the high court collegium are always influenced by the collegium judges and the state judge in the Supreme Court. What transpires behind closed-door meetings of the collegium is not known to anybody. The Supreme Court collegium, to suit its convenience, always makes unanimous recommendations cryptically, without any reasons, lacking objectivity. (4) The view that the presence of the law minister in the NJAC amounts to executive interference and the tendency to condemn all politicians, parliamentarians and ministers as non-trustworthy to uphold the constitution lacks requisite judicial respect

for other constitutional institutions and functionaries. In the memorandum of procedure, the participation of the law minister is accepted for giving inputs. But, his presence in the discussions among the judges of the Supreme Court is one that becomes uncomfortable to the collegiums since such presence does not give scope for the arbitrary decisions of the collegium. (5) That eminent members will misuse veto powers arbitrarily and opp-ose the names proposed by the judges of the Supreme Court is an untenable view. The eminent persons are appointed by the committee consisting of Prime Minister, CJI and the leader of the opposition. Therefore, the inference and the view that eminent persons would always be partisan and to suspect their intellectual integrity is an untenable view and it is an affront to civil society. Integrity and probity is not the sole monopoly of judges and the legal community. The object of participation of eminent persons is to only ensure transparency, objectivity and credibility of the discussions and decision taken by the NJAC. One of the judges made a reference to LK Advani’s statement that an Emergency-like situation can still occur. A reference was also made to the removal of governors by the NDA government and attributing political motives in the Teesta Setalvad case—these are out of the purview of the legal parameters and not appropriate to be made as reasons for striking down the NJAC. One of the judges noting that LGBT candidates will have no scope for elevation in the NJAC system is an amusing view.

he National Commission to Review the Working of the Constitution (NCRWC), headed by Justice MN Venkatachalaiah, along with the team of former judges of the Supreme Court and eminent personalities, did suggest a National Judicial Commission consisting of the CJI, chairman, two seniormost judges of the Supreme Court, Union minister for law and justice, and one eminent person nominated by the President to replace the collegium system. In fact, the majority judgments do not make any

reference to this aspect. It cannot be said that the chairman and members of NCRWC had glossed over the concerns of independence of the judiciary while making the suggestion. Majority of the judges held that the collegium system which evolved in the Second and Third Judges Case does not require any reference to a larger bench and the law laid down is correct. If it is so, where is the need for the bench to hear the issue of making improvements in the collegium system? Will this bench of five judges be competent to add suggestions to the guidelines laid down by the 11 judges’ bench to improve the collegium system? It is implicit that the collegium system suffers from many legal infirmities. If at all the exercise is needed to improve the collegium system, it should be by a larger bench of 13 judges. The judges could have read the provisions of the NJAC Act, guidelines could have been laid down prescribing the parameters for those who could be considered to be appointed as an eminent person and made the provisions of NJAC Act in accordance with the constitutional spirit instead of improving the failed collegium system. One gets the feeling that the judges are not prepared to give up their arbitrary power of making/ influencing recommendations for elevation to the higher judiciary. Absolute power corrupts absolutely; judges are no exception to this adage.

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

editor@indialegalonline.com

INDIA LEGAL November 15, 2015

LEAD/ Supreme Court / NJAC Verdict

Photos: JS Studio

Supreme

The apex court verdict favoring the collegium system over the National Judicial Appointments Commission has pitted the judiciary against the executive. Can the crisis be used to usher in judicial reforms? By Ramesh Menon

Justice JS Khehar

Justice MB Lokur

He said the center never doubted the collegiumâ&#x20AC;&#x2122;s integrity.

He did not want the law minister in the NJAC.

November 15, 2015

Voices

HEN the apex court rejected the 99th Constitutional Amendment that created the National Judicial Appointments Commission (NJAC), it was seen as one of the most controversial judgments since Independence. The NJAC was to appoint judges to the Supreme Court and high courts. The judgment came as a shock to the government that had spared no effort in pushing it through parliament. The center had taken the stance that the earlier collegium system that appointed judges was faulty and wanted

to bring in a system where the executive would have a greater say in who should be appointed to the higher judiciary. Justice Jagdish S Khehar, who headed the five-member bench that gave this verdict, said there had been no case in the past where the central government had said that the judge being appointed had no integrity. Justice Madan B Lokur pointed out that the presence of the law minister in the NJAC casted a doubt on the principle of cabinet responsibility. Justice Kurian Joseph said that further hearing was required on the matter as the collegium system needed to be improved. Justice Adarsh K Goel said that the constitution signified the will of the

Sources close to the government said it would at a proper time try to again introduce another bill. Arun Jaitley has publicly said that primacy of parliament is part of the basic structure of the constitution and that the appointment of judges was a non-transparent process.

Justice K Joseph

Justice AK Goel

Justice J Chelameswar

He wanted hearings on revamping the collegium.

He felt parliamentâ&#x20AC;&#x2122;s will was time-bound.

He wanted the centerâ&#x20AC;&#x2122;s involvement. INDIA LEGAL November 15, 2015

LEAD/ Supreme Court / NJAC Verdict

Promod Pushkarna

“After this judgment, the judiciary must prove that the collegium is a good system so that no questions are asked....” —Ram Bhawan Misra, former chief justice of HP High Court NO ROOM FOR REVISION The Supreme Court through the NJAC verdict has sent a clear message to the executive that it will brook no interference

November 15, 2015

people, while the parliament only represented the people’s will at a given point of time. Justice J Chelameswar, the sole dissenting judge in the bench, argued that to entirely eliminate the government from the selection process was against the country’s democratic principles. Some of the reasons he gave for his dissenting opinion were: Transparency is a vital factor in constitutional governance and judicial appointments but proceedings of the collegium were absolutely opaque and inaccessible. The assumption that “primacy of the judiciary” in the appointment of judges is a basic

feature of the constitution “is empirically flawed”. There were cases where the apex court collegium “retraced its steps” after rejecting recommendations of a particular name suggested by the high court collegium, giving scope for a great deal of “speculation”. The records were absolutely beyond the reach of any person, including judges other than the Chief Justice of India (CJI) and so did not enhance the credibility of the judiciary. Attorney-general Mukul Rohatgi was right in his submission that exclusion of the executive branch was destructive to the basic feature of checks and balances—a fundamental principle in constitutional theory. NO INTERFERENCE The judgment sent a clear message to the executive that it would brook no interference in its function and that its independence was supreme. It restored the collegium system

CENTER’S ENVOY (Left) A-G Mukul Rohatgi had pleaded that inclusion of the executive was a must for checks and balances in the selection process

that was in vogue for more than four decades, where the CJI and a group of judges had the final say. The NJAC, on the other hand, comprised three Supreme Court judges, the law minister and two eminent persons. It would, therefore, have only 50 percent of say in the appointments of judges. And the general apprehension was that the government would hold its sway in the appointments. Numerous BJP leaders like Kalraj Mishra who is the Union minister for micro, small and medium enterprises, said that striking down the unanimously passed NJAC Act was an effort to weaken parliament’s sovereignty. In a public debate on the judgment, RM Lodha, former CJI, said that while the legislature has all the powers to make laws, it was for the judiciary to determine whether the law had destroyed basic features of the constitution and if it did, it was its duty to strike it down. The government’s view was that the constitution never envisaged primacy of the CJI in appointing judges and the Supreme Court had wrongly assumed it. Soon after the judgment, the government reacted strongly, which was hardly surprising as it was clear that it wanted control over the appointment of judges. There have been numerous instances in the past when the law

UNI

minister has called the shots for appointments. Law Minister Sadananda Gowda said that he was surprised. Finance Minister Arun Jaitley criticized it in a Facebook post saying: “Indian democracy cannot be a tyranny of the unelected.” Union minister Ravi Shankar Prasad who was earlier a law minister, said that the judgment was against the will of the people as the NJAC bill was unanimously passed in parliament by those who had been elected on a popular vote. Sources close to the government said

SCATHING CRITICISM Union Minister Kalraj Mishra said the verdict wanted to weaken parliament’s sovereignty

INDIA LEGAL November 15, 2015

LEAD/ Supreme Court / NJAC Verdict

“…whether we have the Collegium system or #NJAC, I believe that the Indian judiciary is beyond redemption. What kind of a judiciary is it which often takes 20-30 years to finally decide a case….” —Markandey Katju (below), former Supreme Court judge Photos: UNI

November 15, 2015

that it would at an appropriate time later try to again introduce another bill. Jaitley has publicly said that primacy of parliament is part of the basic structure of the constitution and the appointment of judges was a nontransparent process. EASIER SAID THAN DONE However, it may not be so easy to push through this legislation again. The Congress, which had earlier supported the creation of the NJAC, backtracked saying that it would not support the government if it tried to go against the Supreme Court verdict. Nick Robinson, a research fellow at the Centre for Legal Profession at Harvard Law School, pointed out that the Congress and many others in civil society saw merit in the apex court judgment as they were worried about the BJP-led government trying to politicize independent institutions and intimidate dissenters. The five-member bench which heard the NJAC case will now hear suggestions from all parties on November 3 on how the collegium system can be improved. Legal experts say

that the case should have been heard by a larger bench as the original judgment that brought in the collegium system was heard by nine judges. This judgment took a long time coming. When the NJAC matter was heard on July 15, the court reserved its judgment. Later, Justice Khehar who headed the bench, circulated his judgment to the other judges calling the NJAC unconstitutional. It is well-known how the then prime minister Indira Gandhi took it upon herself to decide out-of-turn appointments to the judiciary despite Article 50 of the constitution being clear that the executive could not interfere in the appointment of judges and only had an advisory role. During the Emergency, favored judges were promoted and others who were seen as committed were transferred. Later, the judiciary cut the role of the executive in appointments by instituting the collegium system. The appointment of judges was always seen as a vexed issue. In 2002, the Constitution Review Commission headed by Justice Venkata-

IN FAVOR RM Lodha, former CJI, supported the verdict

chaliah, had recommended the constitution of a commission to appoint judges. This came about as there was apprehension that the collegium system was not transparent. The question of judicial accountability catapulted into debates raising questions about why a flawed system was being allowed to continue. MIDDLE PATH In the present verdict, Justice Khehar had suggested that one or more eminent persons could be given an advisory or consultative role and allowed to express their opinion on the nominees to be considered. The collegium would not be required to follow the suggestions but be obliged to keep the opinion tendered, he said. If this is done, there could be room for a government representative to give a view and it would be helpful to also get some non-lawyer to be on the panel to provide a different perspective. But there is no fail-safe method. In a way, both the collegium and NJAC are good ideas and can both work. But that needs transparency and honesty which is sadly miss-

ing in public life. If decisions regarding appointments are done purely on merit, both systems are perfect. Former Chief Justice of Himachal Pradesh High Court Ram Bhawan Misra told India Legal: “After this judgment, the judiciary must prove that the collegium is a good system so that no questions are asked about its credibility. The idea of the NJAC came about because there were question marks on the appointments done by the collegium system. They definitely have a responsibility to ensure that there is transparency, honesty, sincerity and devotion to work while appointing judges. Every move of the judiciary will now be seen through a microscope.” Clearly, the debate on whether the NJAC or the collegium system is better is not over. We are going to hear a lot on this issue in the coming months, though as of now, the government is abiding by the apex court’s verdict. Jaitley, a former law minister, has in fact said that a debate for a better system will continue as mere

STRONG REACTIONS (Below) FM Arun Jaitley criticized the verdict in a Facebook post, while Law Minister Sadananda Gowda was surprised by the judgment

INDIA LEGAL November 15, 2015

LEAD/ Supreme Court / NJAC Verdict

is justice denied. Many litigants, in fact, die much before their cases are heard.

WRONG PRECEDENT (Above) As PM, Indira Gandhi flouted rules to make appointments to the judiciary (Below) Days after the verdict, CJI HL Dattu moved fast to restore the collegium system

November 15, 2015

independence of the judiciary would not make it credible and that would come only if there was accountability. Checks and balances would be required, he said. TOUGH CALL But how these judicial reforms are ushered in is the sticky question. In the months ahead, political observers feel that much dirty linen will be washed in public to expose the misdoings of the judiciary and the judges who head it. This will be done just to prove and corroborate that the NJAC had a point in ensuring judicial accountability and bringing in others too to decide on who would be appointed as judges. The current imbroglio over the NJAC has affected the disposal of cases as many appointments in courts are hanging fire. There are a staggering 3.15 crore cases pending across India. Estimates say that it would easily take at least 60 years for these cases to be heard and disposed of. Not to mention new cases which crop up. India has about 16,000 judges who are presently dealing with over 66,000 cases in the Supreme Court, 45 lakh cases in high courts and 2.7 crore cases across district and subordinate courts. It is anybody’s guess how long it will take for justice to be delivered. Justice delayed

JUDGE’S LAMENT Former Supreme Court judge Markandey Katju came out with a quick-fire blog reacting to the judgment. Called Indian Judiciary is beyond redemption, the blog said: “So far as my own opinion is concerned, it matters tweedledum or tweedledee whether we have the Collegium system or #NJAC, as I believe that the Indian judiciary is beyond redemption. What kind of a judiciary is it which often takes 20-30 years to finally decide a case (including appeal, revision, writ petition etc.)? There are over 32 million cases pending in the Courts of India and it is estimated that even if no new case is filed it will take 360 years to clear the backlog.” Days after the judgment, CJI HL Dattu moved fast to restore the collegium system. He cleared the names of 24 additional judges in six high courts to be appointed as permanent judges. This should come as a relief to lakhs of litigants whose cases are pending. The additional judges made permanent were in the high courts of Gauhati, Bombay, Andhra Pradesh, Calcutta and Jharkhand. On the issue of 21 additional judges in high courts, Justice Dattu said that the collegium had extended their tenure by three months. Soon after the judgment, the law ministry wrote to the CJI that Rohatgi had given an opinion that the collegium’s recommendations made before the judgment would need fresh clearance. And significantly, there would be around 100 such cases that will have to be considered now that relate to the transfer, appointment and confirmation of judges. Can the constitutional crisis triggered off by the NJAC judgment become an opportunity to usher in the much-needed reforms? One can only hope that it does despite the political anachronisms that continue to paralyze India. IL

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CORRUPTION BEHIND THE BARS

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LEAD/ Supreme Court / NJAC Verdict /Opinion

Justice Narendra Chapalgaonker

Honesty Is the Best Policy Anthony Lawrence

The SC verdict restoring the collegium system has jolted the government. But a former judge of Bombay High Court says that if those involved are honest to their constitutional duty, any system will work

ORMALLY, a judgment of the Supreme Court adjudicating a dispute puts an end to it. But in the case of the National Judicial Appointments Commission, it may not be so. By its verdict, the Supreme Court has held that primacy of opinion of the chief justice of India (CJI) is a part of the independence of the judiciary and as such, a basic structure of the constitution. Even dissent recorded by Justice Chelameshwar concurs with the proposition that existence of an independent judiciary is an essential requisite of a democratic republic and independence of the judiciary is one of the basic features of the constitution. Majority opinion also held that equating the

November 15, 2015

opinion of the chief justice of India with that of the law minister in the matter of selection of judges violates the principle of primacy. The court struck down the 99th Amendment to the constitution and declared the National Judicial Appointments Commission Act, 2014, unconstitutional and void. It restored the collegium system for appointment of high court and Supreme Court judges. It, however, expressed its willingness to consider appropriate suggestions for improving the collegium system. The reaction of the government indicates that it is not prepared to forget its abortive effort to scrap the collegium system and work with it. They have expressed “surprise” at the judgment and some of them used harsh expressions like “tyranny of the unelected” for the consequences of restored system. What options would be open for the government? History has taught us some lessons about constitutional amendments going against basic constitutional values. The Congress (which had earlier joined hands with the ruling BJP in passing the NJAC Act) has now warned against any constitutional adventurism.

The judgment in the NJAC case is founded basically on two constitutional propositions. First is basic structure theory. No part of the constitution, which, according to the interpretation of the courts, is part of the basic structure, can be amended so as to destroy or undermine it. This is a restriction on the amending power. Independence of the judiciary is one of the basic structures of the constitution and hence, cannot be compromised. Another proposition on which the judgment is founded is that the opinion of the chief justice of India (including that of his colleagues in the collegium) shall have primacy (between the opinion of the government and the CJI) in the appointment of Supreme Court and high court judges. A noble legal concept in the form of basic structure doctrine was created by the Supreme Court to protect essential constitutional values cherished by framers of our constitution. This doctrine is consistently approved and relied on by various judicial pronouncements. Though secularism, freedom, federal character of the state, separation of powers between legislature, judiciary and executive, independence of judiciary, etc., have been recognized as basic structures, the list is not restrictive. This doctrine of basic structure and primacy granted to the opinion of the judiciary by Supreme Court judgments is the main obstacle in the way of the government. Supreme Court Advocates-on-Record Association vs Union of India (1994) and Special Reference No.1 of 1998, both decided by nine judges, endorsed the proposition that the opinion of the CJI shall have primacy in the matter of appointment of judges to the Supreme Court and high courts. Therefore, the governmentâ&#x20AC;&#x2122;s part in the appointment of these judges remained a minor one. A prayer for review of this view by a bench larger than those of nine judges was rejected in the NJAC case.

he first option before the government is to move the CJI in an appropriate case and persuade the Court to form a larger bench. Such an attempt proved to be abortive in 1975. The attorney-general had moved the CJI for formation of a larger

bench to review the basic structure doctrine. A bench was formed but after hearing the preliminary objections and after some discussion between the judges on the bench and the advocates who appeared, Chief Justice Ray was pleased to dissolve the bench. Therefore, taking out the independence of the judiciary from the basic structure list would be a near impossibility. Assailing the theory of basic structure would be opening the door for many dangerous possibilities for annulment of the essential principles of our constitution. Anybody who cares for constitutional democracy would not like that possibility. It may destabilize the foundations of our state. Any fresh attempt for such a review, therefore, would be difficult and undesirable. The collegium system has worked for the last few years and some of its flaws have been brought to the fore. It will have to be made more transparent and opinions expressed by the parties to the consultation process must be in writing and duly communicated to other parties. Certain other measures may also be necessary. The Supreme Court is seized of the matter and would consider suggestions for reforms in this system. What Dr Rajendra Prasad, president of the Constituent Assembly, said about the constitution is also true about the system for appointment of judges. If persons involved in the process are honest to their constitutional duty, any system will work. Fault does not always lie in utensils, at times, it may be with the cook. IL

IN PUBLIC INTEREST (L-R) Chief Justice HL Dattu and Law Minister DV Sadananda Gowda will have to arrive at a common ground to resolve the ExecutiveJudiciary dispute over NJAC

Independence of the judiciary is one of the basic structures of the constitution and hence, cannot be compromised. Also, the opinion of the chief justice of India shall have primacy in the appointment of Supreme Court and high court judges.

INDIA LEGAL November 15, 2015

SUPREME COURT

Center nudged on uniform civil code A

sking the central government to take a quick decision on a uniform civil code and end the confusion over personal laws, the Supreme Court directed Solicitor General Ranjit Kumar to seek the government’s view. It also posted the matter for further hearing after three weeks. “If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,” the

apex court told Kumar. The court was hearing a public interest litigation seeking waiver of the two-year mandatory separation period for a Christian couple before it could move court for divorce by mutual consent. The separation period is one year for other religions. The petitioner had argued that the two-year mandatory period of separation was biased against the Christian community and was discriminatory.

Concerned over delays T

he Supreme Court, while taking note of long delays in hearing of appeals by various high courts, asked both the center and state governments as to what they proposed to do to check such delays and why some appeals dragged on for over a decade. The court made the observation while hearing the bail plea of Tejpal Singh, a murder accused, who was

behind bars since 2003. His plea was still pending in the Allahabad High Court. The court expressed shock upon learning that the accused had been in jail for 13 years and a decision on appeal was nowhere in sight. It decided to bring in the attorney general of India to find out why appeals were pending across high courts for so long.

Aadhaar gets leeway R

elaxing its earlier order, the Supreme Court allowed the use of Aadhaar card on voluntary basis for social welfare schemes like the rural job guarantee sche-me, oldage pensions, provident fund and prime minister’s Jan Dhan Yojana. A five-judge bench modified the August 11 interim order of a threejudge bench that had restricted the voluntary use of the Aadhaar card for LPG subsidy and getting ration

November 15, 2015

under PDS. It also asked the government to follow all court orders from September 23, 2013, onwards. The petitioners’ counsel agreed to the voluntary use of Aadhaar for the four schemes. They had pleaded that biometric data stored in the Aadhaar card was a gross violations of privacy. They had also argued that there was no statutory mandate behind the collection of biometric data for Aadhaar cards.

Explain tweets to Maha assembly T

he Supreme Court asked writer Shobhaa De to respond to a breach of privilege motion notice as well as explain that her tweets on showing Marathi films during prime time in multiplexes in Mumbai was not a comment on the conduct of the Maharashtra assembly. The state government had, in April this year, decided to make it mandatory for multiplexes in Maharashtra to screen Marathi movies during prime time. Criticizing the move, De had

tweeted: “Devendra ‘Diktatwala’ Fadnavis is at it again!!! From beef to movies. This is not the Maharashtra we all love! Nako! Nako! Yeh sab roko!” A Bench told the columnist to file her reply and posted the matter for hearing on November 18. The court had earlier stayed the breach of privilege notice issued by the Maharashtra assembly speaker against De for her tweets. The author had moved the apex court against the notice.

Window time for bursting crackers H

earing a petition filed by three kids demanding a blanket ban on crackers, the Supreme Court said that it would consider a fivehour window time from 5 pm to 10 pm for bursting of crackers during Diwali. The court directed Solicitor General Ranjit Kumar and Additional Solicitor General Maninder Singh to consult the departments concerned

Ban commercial surrogacy R

aising the issue of commercial surrogacy and its affects, the Supreme Court suggested a possible ban on commercial surrogacy as India is increasingly becoming a popular destination for surrogacy tourism. The apex court said that various issues related to surrogacy were not covered by any law and the government must bring in a legislation.

in the government and come out with their response within a week to six suggestions given by the petitioner’s counsel, AM Singhvi. Among all suggestions, one had asked for limiting the time from 7 pm to 9 pm but the apex court thought it would be insufficient and suggested 5pm to 10 pm. The court posted the matter for October 27.

The court also asked the government to re-examine the policies that allow the import of human embryo in India. “Commercial surrogacy should not be allowed but it is going on in the country. You are allowing trading of human embryo. It is becoming a business. It has evolved into surrogacy tourism,” the bench said. Appearing for the government Solicitor General Ranjit Kumar said consultation process is on and the surrogacy bill may be introduced in parliament in a few months. — Compiled by Vijay Patil Illustrations: UdayShankar INDIA LEGAL November 15, 2015

COURTS

Jaitley slapped with sedition sedition charge was slapped recently on Union Finance Minister Arun Jaitley by a local Uttar Pradesh court for criticizing the Supreme Court’s decision striking down National Judicial Appointments Commission (NJAC). According to media reports, the civil judge of Mahoba in Jhansi district, Ankit Goel, took suo motu cognizance of Jaitley’s criticism of the verdict. The judge said the BJP leader’s blog on his Facebook page—“Indian democracy cannot be

a tyranny of the unelected”—prima facie amounted to sedition under Section 124A of the Indian Penal Code (IPC). The judge further added that the blog also caused public mischief under Section 505 of the IPC. He ruled that under Section 190 of the Criminal Procedure Code, the court was entitled to take cognizance of Jaitley’s statements. The judge has asked the finance minister to be present before him on November 19.

Dress code for court staff he Madhya Pradesh High Court issued an order for officers and staff to dress according to the court’s dignity. As per its directive, the employees were prohibited from wearing jeans, T-shirts and colorful outfits during working hours. The order was issued by the High Court’s registrar-general, Ved Prakash Sharma, on October 16. “It has been observed that certain employees report to work while putting on attire of different colors and designs which does not seem

befitting the dignity of the court,” said the circular. The order asked the entire court staff, including personal secretary, personal assistant, shorthand writers and readers to report to work in formals like black pants, white shirt, black coat and a tie. The registrar-general also warned of severe disciplinary action if the orders were violated. The directive, however, did not make any distinction between male and female staff.

AAP legislator fined `50,000 he Delhi High Court fined AAP legislator Surender Singh `50,000 for delay in filing a response to an election petition from BJP leader Karan Singh Tanwar. The petition had alleged that Singh had furnished false information about his educational qualifications in a poll affidavit. The court imposed the fine as it found no official record that Singh had replied to the petition. Singh, however, denied the allega-

November 15, 2015

tions and told the court that the petition was frivolous, vague, misconceived and politically motivated. Tanwar in his petition said that Singh had claimed to be a 2012 graduate from Sikkim University when he wasn’t and that was a corrupt practice according to the Representation of the People Act 1951. He had based his allegation on an RTI reply from the university. The reply said that it did not have any record of a student by that name in its BA program. Tanwar thus wanted Singh’s election be declared “void” on that ground.

“Dandiya not integral part of Hindu practice” ombay High Court ruled that dandiya is not an integral part of Hindu religious practice and rejected a petition filed by residents of Cassi Mitha building in Mumbai. The building is located next to the Rocky Hill Complex in Malabar Hill where judges and senior government officials stay. The residents like government officers of revenue, custom and Income

Tax department of Cassi Mitha quarters wanted to have a dandiya night function at their premises. They had approached the Malabar Hill police for permission to use loud speakers and play dandiya but were refused. The police also did not cite any reason. The residents later approached the High Court, which, while rejecting the petition, said nobody can demand

What is a madarsa? he Kerala High Court held that a madarsa is not a place of worship and so it could be used as a polling booth. The High Court issued the order while dismissing a petition filed by BA Kasim from Kasargod, who had sought shifting or relocation of polling booths located in madarsas in Chengala Grama Panchayat, Kasargod, for the local body elections scheduled next month. The Court said the handbook issued by the State Election Commission for the conduct of

elections stated that no police station or place of religious worship shall function as a polling station. It said that a madarsa is neither a place of religious worship nor does it have religious significance. Madarsa only means a building which houses a school, it clarified. The court also added that it did not think any of the instructions issued by the State Election Commission had been flouted in the case. It observed that it was too late in the day to shift or relocate the polling booths.

Condom not medicine pholding the Delhi High Court order of July 2015, the Madras High Court ruled that a condom is not a medicine, hence it cannot have a fixed price under the Drug Price Control Order (DPCO). The court was hearing the petition filed by TTK Protective Devices Ltd. The petition cited the ruling of the Delhi High Court quashing the orders of National Pharmaceuticals Pricing Authority (NPPA) in July 2015. The Delhi High Court had said that NPPA exceeded the powers conferred by DPCO while fixing the ceiling price for condoms. It ruled that the ceiling price can be fixed only for scheduled formulations of specified strengths and dosages and condoms do not fall under this category as the dosages and strength are not specified. Thus, it is not permissible to fix price for condoms. Two pharma companies, Reckitt Benckiser and JK Ansell Ltd, had challenged the NPPA orders in Delhi High Court, while TTK Protective Devices challenged them in the Madras High Court.

— Compiled by Vijay Patil Illustrations: UdayShankar INDIA LEGAL November 15, 2015

SOCIETY/ Adoption/ Missionaries of Charity

No Childâ&#x20AC;&#x2122;s Play

Even as the government wants to increase adoptions in India and has laid out new guidelines, the Missionaries of Charity has pulled out of this sector, citing differences By Sujit Bhar in Kolkata IN SERVICE TO MANKIND Mother Teresaâ&#x20AC;&#x2122;s Missionaries of Charity has done yeoman service in the field of adoption

November 15, 2015

We think sometimes that poverty is only being hungry, naked and homeless. The poverty of being unwanted, unloved and uncared for is the greatest poverty. We must start in our own homes to remedy this kind of poverty. —Mother Teresa

OLKATA’S Missionaries of Charity (MoC), founded by Mother Teresa and one of the most respected NGOs in the country, has come in for some friction with the law of the land that now allows single parents to adopt children. The law has wide ramifications within the current Indian scenario, being singularly and uniformly secular against the backdrop of a country where majority religious sentiments are polarizing at an alarming rate. Maneka Gandhi, the Women and Child Development minister, is known to be passionate about the issue of adoption, and hence did not wait for parliament to pass the Juvenile Justice (Care and Protection of Children) Bill, 2014, and notified the rules under the existing Act instead. In a country where the collective situation of children, especially orphans, is abysmal, even the adoption rate is low despite a large number of people wanting to adopt. This is because of the legal system and its bottlenecks. Despite some 9,000 parents willing to adopt, only 800 children are free for adoption. However, this year, some 1,200 were adopted. The minister said that her target for adoption for next year was 50,000. She said many NRIs were eager to adopt children from their country of origin, but, finding the Indian legal system too hard to crack, have started moving to China for babies. Maneka Gandhi wants to speed up the process and new guidelines have made it easy for single people to adopt. However, MoC found these guidelines

unacceptable and wrote to the Central Adoption Resource Authority seeking derecognition of the registered (for adoption) orphanages. A call by India Legal to MoC elicited no comments. The MoC runs 16 orphanages across the country, of which 13 are authorized to give children for adoption. The revised guidelines on adoption came into effect in July, and by August, MoC homes had stopped facilitating the adoption process. They shifted out the remaining children to other registered homes. In this imbroglio, it’s the children who are suffering.

DIFFERENT STANDARDS If the MoC wants each child to have a life of dignity, why does it shun single parents and LGBTs and deny them the right to parenthood?

SISTERS’ OBJECTIONS MoC has set three preconditions. First, it would be giving children out to married couples only. Secondly, none of them can be a divorcee. Third, parents have to accept the child the organization offers and will not be able to choose from six children, as the ministry guidelines lay out. This leaves out single parents. Already, one applicant from Assam and another from Bihar were reportedly rejected by MoC. MoC’s stand has been backed by the Vatican, the Catholic Bishop’s Conference of India (CBCI) and even by West Bengal Chief Minister Mamata Banerjee. Her statement on this issue was: “We fully support Missionaries of Charity and Sister Prema INDIA LEGAL November 15, 2015

SOCIETY/ Adoption/ Missionaries of Charity

“Children are not objects; each of them is a precious gift from God. The Missionaries of Charity are at the service of the most vulnerable and those abandoned children cannot be given to any parent.” —Cardinal Telesphore Toppo, Archbishop of Ranchi in their decision to opt out of the adoption program. They have a right to do so.” Vatican Radio, while not directly commenting on the issue, quoted Cardinal Telesphore Toppo, the Archbishop of Ranchi, on the issue. He reportedly said: “I support the sister missionaries. Children are not objects; each of them is a precious gift from God. The Missionaries of Charity are at the service of the most vulnerable and those abandoned children cannot be given to any parent.” The CBCI, too, echoed these sentiments. CHANGED WORLD Sandhi Mukherjee, a retired bureaucrat who is involved

with many social organizations, says: “One, perhaps, can appeal to their (MoC) hearts that they come back to the dialogue table. This is an organization that is reputed for its fairness in the treatment of children, and prospective parents are positively predisposed when they apply to MoC. While it is true that the reputation of MoC has been built over decades of hard work and dedication, one has to remember that the world outside has changed, and divorces are as commonplace as live-in relationships.” He further adds that it is important to keep in mind that marriages do not always work, and divorce is a fair and respectable way out of this. “This does not tarnish a man’s or a woman’s character. What happens to a woman who has been brutalized and divorce

“We fully support Missionaries of Charity in their decision to opt out of the adoption program. They have a right to do so.” —Mamata Banerjee, West Bengal chief minister 28

November 15, 2015

is the only way out? Does she forego the right to have a child? “Secondly, if you look at women such as Sushmita Sen (former Miss Universe) or Neena Gupta (actor), both of whom are single mothers, you see their children growing up with a lot of care. “Third, MoC must remember that they were not forced to start and run orphanages in India. Having done so, they have implicitly agreed to adhere to the law of the land. So many children have benefitted from the excellent care that MoC provides. Now, should they be shoved into organizations that have neither the ability nor the willingness to provide such care?” TIME TO MOVE ON Another issue is homophobia. Even as debates continuously take place over the LGBT issue, the MoC asks a startling question: “What if the parents (single) turn out to be lesbians or gays?” This shows how far behind it is with the times. According to social worker Soma, there lies a middle path. “This is an issue that can-

The MoC has to be in step with times and realize that live-in-relationships and divorces are common and that the law of the land also recognizes single parents. not be solved through legislations. One has to keep in mind MoC’s reputation while dealing with the issue. Even Pope Francis today is showing leniency towards issues of the modern world.” Another point of contention with the MoC is prospective parents being given a choice of six children to choose from. Sister Amala of MoC has said: “Mother’s idea was adoption to counter abortion. When a woman gives birth to a baby, is she allowed a choice? She gets what God gifts her. Here too we allow only one chance, we match the baby as per the parents’ background, skin color, etc., but parents are not allowed a choice, even if the child has a deformity. ” One hopes the clash between law and religion does not result in orphans suffering and falling into wrong hands. IL

CHANGING REALITIES (Above, L-R) Actors Neena Gupta and Sushmita Sen are successful single parents

INDIA LEGAL November 15, 2015

LEGAL EYE/ State Law Officers

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

HE largesse doled out by state governments has come under scrutiny. This generosity by way of arbitrary appointments of law officers to deal with cases relating to states in high courts has caught the attention of the Supreme Court. While hearing a clutch of petitions challenging the appointments, the Court, which has now reserved its ruling, has come across startling facts. Not only are there no set rules for the appointment of additional advocategenerals (A-Gs), senior deputy A-Gs and deputy A-Gs, state governments had been spending huge amounts on a large number of advocates appointed to these positions. HUGE TEAMS Haryana, for instance, has 183 law officers, which includes 58 additional A-Gs, one senior deputy A-G, 62 deputy A-Gs and an equal number of assistant A-Gs, as per an affidavit given by the state to the apex court last month. Punjab is not far behind, with as

November 15, 2015

many as 174 law officers who were also appointed without any norms in place. It has a team of 74 additional A-Gs, five senior deputy A-Gs, 40 deputy A-Gs and 55 assistant A-Gs. In contrast, the center has a team of less than a dozen law officers in the Supreme Court led by Attorney-General of India Mukul Rohatgi. A majority of these state lawyers have not been appointed on merit or experience. In fact, most are related to politicians, senior officers, judges, senior advocates and other influential people. One of those appointed in Haryana is a relative of the chief minister and did not even fulfil the norms to practice in the High Court. The Bar Council of India has fixed a minimum experience of two years in a sessions or district court for being eligible to appear in high courts. The Haryana government affidavit also details the emoluments given to these officers. Additional A-Gs are paid a monthly remuneration of `1.40 lakh and entitled to leave as admissible to Class I officers, except earned leave. They are on contract for one

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

year, which is renewable every year. They are entitled to do private practice but are barred from appearing against the state. Deputy A-Gs are put on regular pay scales, with entry-level salaries being a minimum of `43,390, plus the usual allowances, including house rent allowance and TA/DA, as admissible to state government employees. Assistant A-Gs have an entry-level minimum pay starting at `28,000, plus the usual allowances. MONEY SQUANDERED? Details of the official expenditure calculated by the Haryana’s A-G office show that the state incurs a monthly expenditure of around `70,235 on an assistant A-G, `85,000 on an additional A-G, `90,000 on a senior additional A-G, `1,00,575 on a deputy A-G, and `1,00,675 on a senior deputy A-G. It also spent `18.71 crore on the state A-G’s office between April 1, 2012, and January 31, 2013, as per official figures of a CAG report in 2014. The report also said that about 80 percent of the law officers don’t have adequate work

most of the time. It questioned the “faulty selection of law officers resulting in idle payment of salary”. In its reply to CAG’s objections, Haryana had justified the appointments, citing several court judgments, including some from the Supreme Court. “It is the choice, prerogative and discretion of the government to engage such law officers to defend and plead their cases through whom it has faith, confidence and trust, which may be based on word of mouth and performance,” it said. In its latest affidavit submitted to the Supreme Court, the state informed that the A-G is the only validated post of law officer and the “engagement of law officers are not governed by any rules and regulations”. It added that their engagement is primarily on the basis of recommendations made by the A-G. The affidavit admitted that no search or selection committee had ever been constituted to invite applications and scrutinize the names and that it was left to the “discretion” of the A-G to select his team of officers. The affidavit was submitted days after INDIA LEGAL November 15, 2015

LEGAL EYE/ State Law Officers

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

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

November 15, 2015

the court slammed the Punjab government over appointment of law officers. A bench led by Justice TS Thakur had said such appointments cannot be an act of “political appeasement” and must be transparent. The court had questioned the process for such appointments in states as it appeared that political connections outweighed merit. It asked Solicitor-General Ranjit Kumar, who was assisting the court as amicus curiae, to find out whether any state had laid down procedures for selection of law officers. Punjab government, in its affidavit, had said that “conventionally, law officers are engaged on contractual basis after being recommended by the advocate general or in consultation with him. The advocate general recommends to the state government those lawyers who are competent and best suited to carry out the onerous and multi-faceted tasks of law officers”. LOYALTY PAYS The issue came up before the apex court following a petition filed by advocate Pradeep Rapria, who had challenged the appointment of law officers in the A-G office, Haryana. This was done after the Punjab and Haryana High Court, which had heard his plea, adjourned the case sine-die. In his petition before the Supreme Court, Rapria argued that loyalty to the ruling party, and not legal acumen, had become the deciding factor in the appointment of government advocates.

Integrity, capabilities, honesty and efficiency of lawyers were secondary to loyalty to the party in power. In his affidavit, he said that he had filed the petition “against the arbitrary and illegal engagement of Advocates in the AG office, Haryana, on pick and chose basis, without any supporting legislation or Rule, Notification, guideline, norms, which is clearly in violation of Article 14 of the Constitution of India. In response to the RTI query, the State Govt. has informed the Petitioner that there is no specified qualification or rule dealing with the engagement of Advocates in the AG Office and even no application was ever received from the engaged Advocates. Therefore, there was no occasion for the State Govt. to apply mind on the merits of the Advocates engaged in the AG Office, who deal with the Fundamental Rights and other vital rights of the citizens in the High Court”. The petitioner submitted that the state exchequer is held by the state as a trustee of the citizens. Remuneration to such state counsels from the state exchequer amounts to state largesse, which cannot be given to any person according to the sweet will and whims of political entities. He pointed out that no applications were sought and there was no specified qualification or rule dealing with the engagement of advocates in the A-G office. Rapria further said in his petition: “In the democracy, the government cannot behave like a King, who can give benefit to any person as per his whims and fancies.” Senior advocates in the Punjab and Haryana High Court pointed out that though the appointments of some law officers are justified, the numbers appointed by both states is far higher than required. They also stressed that an improvement in the quality of lawyers appointed for such posts could cut down on the need for so many appointees. It is hoped that the Supreme Court will issue guidelines to bring some order in these appointments. IL

NATIONAL BRIEFS

Constables to become IOs

he Delhi Police got the nod from Lieutenant Governor Najeeb Jung to induct senior constables as investigating officers (IO) for probing non-heinous crimes in the capital. Incidentally, of the total number of cases that the Delhi Police has, non-heinous crimes top the list. According to a report published in Hindustan Times, the demand was made by the Delhi Police. Constables will now join the ranks of inspector, sub-inspector, assistant sub-inspector and head constables to function as

IOs. According to the report, the new IOs will probe cases that entail a maximum punishment of seven years. However, they need to be graduates with a minimum of 10 years’ experience to become eligible for IOs. The report further states that more than 3,000 constables will be up for the post and are likely to take a screening test, followed by a training for those selected. The move should address the long list of cases piling up with the Delhi Police and help speed up the process of investigation.

Chhota Rajan is scared

Make merit the sole criterion

hhota Rajan (Rajendra Nikalje) who was arrested in Bali told reporters that he was not afraid of anyone. India’s most wanted gangster, who is sought in more than two dozen murder cases, was arrested after a twodecade hunt. However, Police Commissioner Reinhard Nainggolan told NDTV that Rajan wanted to go to Zimbabwe and that he has been nervous since his arrest. Reports have suggested that Rajan, who has been hunted by the police in many countries, was scared to return to India because of threats from Dawood, his former mentor-turned-bitter rival. CBI officers will reach Bali soon to begin the process of bringing him back to India.

Fun time Goa seems to be the place to relax if the number of VIPs who are holidaying there is any indication. Among them was Chief Justice HL Dattu with his family, which included his wife, son, daughter-in-law and grandson. HRD Minister Smriti Irani too set off on a holiday to Goa. Scheduled to campaign for the BJP in the Bihar assembly elections, Irani was probably inspired after Arun Jaitley said that the election results won’t be seen as a mandate on the center’s performance.

he Supreme Court urged the center to take steps objectively in order to do away with all forms of reservations in institutions of higher education. The court observed that in spite of several

reminders to central and state governments, reservation continues to hold sway over merit. It made a strong case for making merit the primary criteria for admission to super-specialty courses. The apex court noted that there should really be no reservation since it is in the general interest of the country to improve the standard of higher education. The court’s observation came in while it was delivering judgment on a batch of petitions challenging the eligibility criteria for admissions into certain super-specialty medical courses in Andhra Pradesh, Telangana and Tamil Nadu.

Gujarat opposes compensation plea

he Gujarat government opposed a plea to grant compensation to six men who were convicted for the 2002 Akshardham terror attack but acquitted by the Supreme Court last year. Additional Solicitor-General Tushar Mehta, representing the state, told the apex court that the plea by the acquitted was not maintainable. “Whatever they may want now, it has to be in the same criminal appeal that is now disposed of by this court. There are provisions in the CrPC to seek compensation and also for demanding inquiry against police officers,” Mehta

told the court. The bench, agreeing with Mehta, asked the petitioners’ advocate, KTS Tulsi, to corroborate the provisions under which the plea was maintainable.

— Compiled by Vijay Patil INDIA LEGAL November 15, 2015

CONTROVERSY/ Dance Bars

JUST ANOTHER ROUND Women performing at a dance bar

Much Nautch about Nothing Are Mumbai’s dance bars dens of vice as made out by the moral brigade and the political establishment? With the ban on them stayed again, it’s time to improve the working conditions of women there By Ajith Pillai

F you are part of the moral brigade, it is easy to run down Mumbai’s dance bars. There is this readymade line of argument: these establishments are sex shops or pick-up joints masquerading as places of clean fun and entertainment. Hence, these “dens of vice” deserve to be closed down. There are a few case studies done to prove that middlemen lure women from villages across India to the big, bad city and they end up in the dance

November 15, 2015

bars which mushroomed in Mumbai in the 90s and the 2000s. When the Maharashtra assembly unanimously passed a bill banning dance bars in July 2005, there were 1,300 of them. And to think that in 1985 there were only 24 of them. This shows how dance bars grew in popularity. But what about all the sleaze associated with such establishments? It would be a misrepresentation of facts to say that they are squeaky clean and above board. However, it

would be safe to say these bars are not brothels. Their managements do not sell sex, although a dancer on her own free will may indulge in such a transaction. MUMBAI’S UNDERBELLY I have surveyed dance bars in my capacity as a low life correspondent for a few publications in Mumbai. Covering crime, drug addiction and the city’s underbelly was one of the beats assigned to me. Since bars with dancing girls attracted much media attention in the late 80s and 90s, I was asked to take a look at them. I found that women who enacted scenes from raunchy Bollywood songs were neither “readily available” as was made out by the moral police, nor were the managements persuading their clientele to take one of the women home. On the contrary, the bars had bouncers who said their brief was to ensure that “customers” don’t “ched chaad” (harass) the women. The typical client who frequents such bars comes to relive the Bollywood dream. It is keeping him in mind that the bars are designed to resemble a film set readied for an item song—replete with all its garish lighting and glitter. The dancers—a dozen of them— perform on an elevated circular stage with strobe lights flashing and the latest filmy number blasting through the sound system. As one song fades into another, some of them rush to the green room to return wearing clothes to match the mood of the next track on the playing list. The profile of those who patronise dance bars is a curious mix of office-goers, thirdrung members of the underworld, traders and professionals. They are young or at best middle-aged. Many are married. To a man, they will reveal that they have come here to forget the cares of the world and to relax and enjoy themselves. They also tell you they are not here for sex. If that was what they wanted, they would have gone to Kamatipura, the red light district, they say. To unwind with the noisy music and to imagine yourself falling in love with one of the nubile girls doing her set, you have to be essentially a film-crazed person; someone who remembers the lyrics to the song being danced to and the vibes with it. Unless you

are such a person, you probably will not pay through your nose for your drink to watch an item number enacted. While they dance, the girls are not allowed to speak to customers but they do notice those who tip them heavily. Sonia Falerio’s book, Beautiful Thing, an inside account of Mumbai’s dance bars, describes a typical scene involving dance girl Leela: “...she only noticed those who threw money on her, as was the custom, or asked the steward standing by for this purpose to place a garland of hundred or five hundred rupee notes around her neck. If she was feeling wicked she would accept the money and staring deep into the customer’s eyes silently mouth: ‘Is this all you think I’m worth?’...If the customer was familiar with Leela’s ways, which, truth be told, were the ways of all experienced bar dancers, he’d swat her away with a good-natured laugh.” MAJORITY IS MARRIED But what about the women dancers themselves? According to a sample study in 2005 by Mumbai-based Tata Institute of Social Sciences, 68 percent of women in dance bars were married. This went against the notion that the girls were mostly minors lured into the racket by traffickers. A majority of those married (71 percent) had children back home in the villages and small towns they hailed from. Many had come to Mumbai to seek jobs and had found dancing at bars a better option than being attached to a brothel in

According to a 2005 study by Tata Institute of Social Sciences, 68 percent of women in dance bars were married. A majority of those married had children in villages and small towns.

SMILES OF VICTORY Dance bar girls celebrating after court ruling against the ban

INDIA LEGAL November 15, 2015

CONTROVERSY/ Dance Bars

THE REAL PICTURE (Above) Sonia Falerio’s book Beautiful Thing is an inside account of Mumbai’s dance bars (Far right) Shagufta Rafique, former dance bar girl-turnedscriptwriter

November 15, 2015

the unofficially demarcated red light areas. Shagufta Rafique, a former dance bar girl turned scriptwriter says she was forced into prostitution at the age of 17 because of poverty. For the next 10 years, she supported her family through her sex work till some wellwishers asked her to try her hand at dancing at bars. She did this and she says the move liberated her from the demeaning work she was doing earlier. Shagufta has written the scripts for films like Aashiqui 2, Raaz 3, Murder 2, Jannat 2 and Woh Lamhe. When the ban was first invoked against the dance bars, she had this to say: “I know how difficult life became for thousands of women who were their family’s sole breadwinners. They were forced to do things they would not have done if the bars were allowed (to carry on their business). The state government will be responsible for them getting into prostitution or ending their lives.” There are many myths perpetuated about dance bars and the women working there. At the time the ban was imposed, one official position was that 75 percent of the women were illegal migrants from Bangladesh. This premise was proven false by a study conducted by SNDT University, Mumbai, which revealed that about 50 percent of the women were from marginalized communities in Madhya Pradesh, Uttar Pradesh and Rajasthan. Around 20 percent were from Mumbai or interior Maharashtra and the rest were from across the country. Only a few were from Nepal and none from Bangladesh.

Neither did the dancers earn in lakhs as was alleged. Their monthly income was in the region of `30,000. ABUSED BY POLICE More crucially, the report revealed that the women were not forced into sex work. Also, very few spoke of harassment. They, however, said they were troubled by the police who raided bars and verbally abused them. In media interviews after the ban, bar owners spoke of how they were forced to pay hafta (protection money) to the police to continue their business. Despite several court rulings against the ban, it is unlikely that it will be lifted. No political party wishes to take on the moral brigade. Comments made in the state assembly in 2005 during the discussion that preceded the passing of the bill banning dance bars, were telling. Sample this: “These women who dance naked (nanga nach), they don't deserve any sympathy.” “We are not Taliban, but somewhere we have to put a stop. The moral policing we do, it is a good thing, but it is not enough ... we need to do even more of this moral policing.” But this one took the cake: “Hotels with three stars, five stars, disco dancing, belly dancing, all that is vulgar ... everything should be banned, except Bharatnatyam and Kathak.” To ban is not the answer. To regulate and improve the working conditions of women who dance the evening shift is certainly a more positive option. IL

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CONTROVERSY/ Dance Bars/Legal Angle

Dancing in the Dark Though the Supreme Court stayed the ban on dance bars, it is a moot question whether the Maharashtra government will accept the verdict. It hasnâ&#x20AC;&#x2122;t budged in the past By Meena Menon

FIGHTING FOR THEIR RIGHTS (Above and below) People protesting against the dance bar ban

November 15, 2015

T is not for the first time that the courts have come to the rescue of bar dancers. But the Supreme Court order on October 15 to stay a provision in the Maharashtra Police Act prohibiting the functioning of dance bars may be too little, too late. Remember, in 2013 too, the Maharashtra government didnâ&#x20AC;&#x2122;t budge an inch after an apex court order lifted the ban on dance bars. In 2014, it defiantly amended the Bombay Police Act to ban dancing again, including in high-end hotels and private clubs where it was exempted earlier. The Indian Hotel and Restaurant Association and others approached the Supreme Court to stay this change in Section 33A of the Bombay Police act by way of an amendment by the Maharashtra Police (Second Amendment) Act, 2014, and declare it unconstitutional. While bar owners may rejoice at the latest order, they will once again be subject to a strict licensing system. There are other issues too and as lawyer and activist Flavia Agnes said, the obscenity rider in the order will become a weapon in the hands of the police to harass the girls.

MISPLACED MORALISM The man who introduced the ban on dance bars in 2005, former Maharashtra home minister RR Patil of the Nationalist Congress Party (NCP), passed away due to cancer in February. He took the high moral ground while closing them down and faced much criticism for not lifting a finger to do anything about the thriving prostitution and trafficking racket in Mumbai. Bar dancers, then, became a soft target for Patil’s misplaced moralism which received unanimous approval across political parties. In 2006, it was first the Bombay High Court which came to the rescue of the bar dancers and later, in 2013, the Supreme Court. There was much lamentation that banning dance bars was a blot on Mumbai’s famed nightlife, though they were many who supported it. The women, meanwhile, were suddenly left with little options other than a life of drudgery or prostitution. Maharashtra chief minister Devendra Fadnavis has said he will appeal against the order and make a proper representation in the Supreme Court before the final hearing on November 5. Political parties, specially the NCP which propelled the ban, feel that the state did not make a good case in the Supreme Court. Nawab Malik, NCP spokesperson says: “The state government seems to have struck a deal with the bar owners and this will become clear if the final order goes against the government. We will wait to see what the order is and then decide.” Leader of opposition in the Maharashtra assembly Radhakrishna Vikhe-Patil from the Congress said in a statement that the government should bring an ordinance and ban dance bars. For once, the Congress seems to back the NCP. When Patil had banned dance bars in 2005, Vikhe-Patil had said it was a step in the right direction. He had said that it was not a question of depriving women of their livelihood alone but it had a negative impact on society. The state must take steps

ON THE SAME SIDE OF THE FENCE (L-R) Leader of opposition in Maharashtra assembly Radhakrishna Vikhe-Patil supports the ban; ex-Maharashtra home minister RR Patil who introduced the ban in 2005

to ensure the ban stays in effect, he added. When it banned dancing in eating houses, permit rooms and beer bars in 2005, the Maharashtra government took the excuse that it had received complaints about these performances. The amendment to the Bombay Police Act 1951 said the government considers that such performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of women and are likely to deprave, corrupt or injure public morality or morals. It exempted theatres and auditoriums/sports clubs/ gymkhanas, where entry is restricted to its members only, three-starred and above hotels and cultural and tourism activities. BAN CHALLENGED The ban was challenged by bar owners and dancers, among others, and the Bombay High Court in its order of April 2006, declared the provisions of Sections 33A and 33B of the Bombay Police Act as unconstitutional being ultra vires the Articles 14 and 19(1)(g) of the constitution. The state government appealed against this but the apex court upheld the ban in 2013. Not to be cowed down, the Maharashtra govern-

In 2013 too, the Maharashtra government didn’t budge an inch after an apex court order lifted the ban on dance bars. In 2014, it defiantly amended the Bombay Police Act to ban dancing again.

INDIA LEGAL November 15, 2015

CONTROVERSY/ Dance Bars/Legal Angle

DIGGING IN HIS HEELS (Right) Maharashtra chief minister Devendra Fadnavis has said he will appeal against the order

“What about the dancers? Who will protect them and make sure they get their rights as workers?” —Flavia Agnes, lawyer and activist ment amended the Bombay Police Act quickly once again in 2014, banning dance bars in all other places also, leaving the women high and dry. While staying the ban, the latest Supreme Court order says: “…we add a rider that no performance of dance shall remotely be expressive of any kind of obscenity in any manner. We may hasten to clarify that in the earlier judgment, it has been clearly stated that sufficient power is vested with the Licensing Authority to safeguard any violation of the dignity of women through obscene dances. Regard being had to the same, the Licensing Authority can take steps so that

November 15, 2015

the individual dignity of a woman is not affected and there remains no room for any kind of obscenity.” Flavia Agnes, who has represented the bar dancers in the Bombay High Court, said that the court has raised the issue of obscenity but no one is talking of the girls and their rights. “What about the dancers? Who will protect them and make sure they get their rights as workers?” she asks. She is among those who have constantly raised the issue of the livelihood of women over the morality question. The 2013 Supreme Court order upheld the High Court stay on the basis that dancing was a fundamental right. The current order upheld and quoted what the Bombay High Court said: “The state has failed to establish that the restriction is reasonable or that it is in the interest of general public. The High Court rightly scrutinized the impugned legislation in the light of observations of this Court... wherein it was held that greater the restriction, the more the need for scrutiny. The High Court noticed that in the guise of regulation, the legislation has imposed a total ban on dancing in the establishments covered under Section 33A.” The High Court in its order staying the ban had said: “In our opinion, it would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls.” It said that “the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women.” About 75,000 bar girls were rendered jobless on August 15, 2005. The plight of the women seems to hardly affect the state government. On three occasions, the courts have come to the aid of the bar dancers but it remains to be seen how the order will be implemented and whether questions of fundamental rights and livelihood prevail over moral outrage and dubious notions of obscenity. IL

INTERNATIONAL BRIEFS

Yoga guru loses copyright battle A California appeals court ruled against the multi-millionaire yogi and founder of 'hot' yoga, Bikram Choudhury, ending his decade-long legal battle to copyright his sequence of yoga poses in a heated room, reports aljazeera.com. Judge Kim McLane Wardlaw described Bikram’s sequence of 26 poses and two breathing

Singapore church leaders guilty of fraud ix leaders of a huge Singaporean church have been convicted of fraud in a case worth S$50 million, reports ABC News. The judge ruled that City Harvest Church’s pastor, Kong Hee and others, used church finances to fund the music career of his wife, Sun Ho. The defendants argued that Ho’s pop music career was a way of reaching out to non-Christians. They have been granted bail until sentencing, but could face a jail term. Sun Ho herself is not accused of wrongdoing. City Harvest—considered a megachurch—is one of Singapore’s wealthiest evangelical churches, with an estimated 30,000 members in Singapore and 15 services every weekend. It claims to have 48 affiliates in countries including Malaysia, Indonesia, India, Taiwan, Brunei and Australia.

exercises as an idea, process or system designed to improve health and to “yield physical benefits and a sense of wellbeing”. “Copyright protects only the expression of this idea—the words and pictures used to describe the sequence—and not the idea of the sequence itself,” the court averred.

No need to cover head, face akistan’s Council of Islamic Ideology (CII) has ruled that covering the face, the hands up to the wrists and feet is not mandatory for Muslim women, reports Daily Pakistan. “It becomes Wajib (compulsory) for a woman to cover her face, hands and feet if there is a danger of spreading disorder, otherwise covering of face, hands and feet for woman is Mustahab (better),” CII chairman Maulana Mohammad Khan Sherani said at CII’s 200th meeting. Incidentally, some of the more liberal members of the CII, including Maulana Tahir

Amazon sues fake reviewers

Ashrafi and Allama Amin Shaheedi, did not attend the first sitting of the two-day meeting. The session was attended, among others, by Dr Samia Raheel Qazi of Jamaat-e-Islami, a Pakistani Islamist political party.

War allegations “credible” government-appointed Sri Lankan judge has said that the allegations that the army committed war crimes during the long conflict with Tamil Tiger rebels are “credible”. He was leading the first government inquiry into the atrocities, one month after the UN released its own findings, reports NDTV.com. President Maithripala Sirisena has pledged a truth and reconciliation commission to investigate further but has resisted calls for a foreign inquiry.

nline retail giant Amazon has filed a suit against over 1,000 people in the United States who allegedly posted “false, misleading and inauthentic” online reviews of its products, reports Scottish Legal News. The action is intended to target those people who used online labor marketplace Fiverr.com to write fake reviews in exchange for payment. Individuals were allegedly paid to post positive reviews of products to boost their popularity, or to post negative reviews on competing products.

INDIA LEGAL November 15, 2015

SPECIAL REPORT/ Sex Workers/ Legal Services

The New Legal

Eagles A project in AP and Karnataka has empowered sex workers by making them paralegal volunteers. As they are made aware of their rights, a confident community is fighting exploitation and domestic violence By Ramesh Menon in Bengaluru and Anantapur 42

November 15, 2015

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

This is a part of many other projects run by Delhi-based Centre for Advocacy and Research (CFAR) to facilitate social inclusion of sex workers across programmes and schemes. Renuka Pattar, working with Shakthi AIDS Tadegattuva Mahila Sangh, a community-based organization in Karnataka, says that women constantly needed help from the police and the legal community to fight incessant violence at work. Mangladevi, a paralegal volunteer, says: “When we went to train the police force in sensitization towards sex workers, we found that they all blamed us as they felt that we had got into the profession to make easy money. I told them that I too was from a good family like them, but as I was deserted by my violent husband and had two children to support, I was forced into sex work. I saw how their attitude changed. Some had tears in their eyes. The police is also human.” Adds Radha, another paralegal volunteer: “The police attitude changed only after a lot of advocacy. Once they see our paralegal volunteer identity card, they listen to us. We have got new respect. We are no more crossquestioned.” One of the places where trafficking is rampant is Kadiri as it borders the poverty-

stricken districts of Kadappa, Chittoor and Anantapur, where women are trafficked to Bengaluru, Pune and Mumbai. Ramadevi, a community coordinator, says: “Many of the women are single and helpless. We have to sensitize the local population into seeing them as humans who are victims of circumstances so that they do not morally abhor them.”

nantapur is one of the four districts in the Rayalaseema region which have seen frequent famines and is so one of the most economically vulnerable areas. This makes it a fertile ground for trafficking of women. Human development and poverty indices put Anantapur as one of the worst in Andhra Pradesh. Akhila Sivadas, executive director, CFAR, says: “Most of the sex workers have a history of violence, be it at the hands of the police, clients or husbands. But with legal knowledge at their command now, they are able to challenge it. We are getting communitybased organizations to spearhead the process of getting them pensions and other government facilities so that their quality of life improves. The challenge is to enable the community of sex workers to get mainstreamed and reduce both risk and vul-

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

SPECIAL REPORT/ Sex Workers/ Legal Services

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

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

November 15, 2015

any like her have got trained by the Karnataka State Legal Services Authority. They proudly carry identity cards proclaiming them as paralegal volunteers. They mediate in cases of domestic violence or any other matter and try to resolve it as a legal right and entitlement amicably. The men are informed about different laws under which they can be booked. If this does not work, it escalates into a court case. The District Legal Services Authority then nominates a lawyer who will fight for the victim for free. These measures have decreased violence against the women and other exploitative methods. Says Sivadas: “Unless a measure of social inclusion comes in, nothing can be done for these communities. So, it is important not to criminalize them and get them into the legal process.” Adds Satish Agnihotri, a former bureaucrat: “Without legal literacy, mobilizations remain incomplete. As stakes increase, both need to be raised a step further. It is imperative to have paralegal training.” Meena from Bengaluru, an outreach worker working with a NGO, was saddled with four children to look after when her husband died of a HIV/AIDS. She tearfully remembers how her daughter was constantly humiliated in school by teachers who kept telling her that her mother was HIV-positive. Ultimately, she had to be pulled out of school. “There are enough laws now, but the main issue is to check whether it works. Women, especially sex workers, need sensitized

lawyers as most do not understand HIV/ AIDS issues and are not interested in doing legal aid work for us as the payment is meagre,” she says. Activist lawyer Vrinda Grover says that there is no monitoring of legal aid services for sex workers. “It should be done to ensure that it works the way it was designed. How many lawyers come well-prepared to defend sex workers in court?” she asks. Narsamma from Anantapur was a victim of domestic violence. Her first husband deserted her, leaving her with two children. Then, a client of hers professed his love and took her to Bangalore. She had a son with him. After the child was born, he started demanding money from her to fund his drinking habit. Fed up, she returned to Anantapur. It was not easy looking after three children, but counseling from the protection officer in the Women and Child Development Department stopped her from committing suicide. She has now realized the need to be legally literate and is grateful for the help she got from the community. A para legal volunteer talks of how one sex worker who was a mother of three was forced to live with a powerful toughie. He however did not contribute to running the family. One day, she was forced to get a client home. When he came to know of this, he severely beat her up and inserted a sharp piece of wood into her private parts and also inflicted a head injury. As she was part of a self help group, they rushed her to the Victoria Hospital in Bengaluru but she could not be saved. The women filed a police complaint, got him arrested and followed up with the legal process till he was convicted with a life term for murder.

he Community-based Organizations (CBO) representing sex workers, supported by civil society organizations such as CFAR, have for many years been mobilizing sex workers in Andhra Pradesh, Karnataka and elsewhere. They also ensure that children of sex workers do not get pulled into the profession. Sharda (name changed), the daughter of a sex worker, shyly sits in her school principal’s room. She softly speaks of how her mother

Ramesh Menon

was rescued by the Delhi police from a brothel and sent back to Gandlapenta in Andhra Pradesh. The young girl is happy being in school as it has triggered new dreams. “I want to become a teacher one day as I can change the lives of so many,” she says.

NEW MEANING TO LIFE (Above) Playtime at a school in Anantapur (Below) A beneficiary getting her documents verified at a pension adalat

ex workers were long denied government benefits under various schemes. To prevent this, the then Anantapur district collector, Lokesh Kumar, decided to set up, what he called, “single window” in 2014 that would ensure that sex workers and transgenders get all their paperwork done to avail of government schemes. Earlier, they would run from pillar-topost for aid and often failed to get them even after paying touts. The single window also helped them get voter identity, Aadhar and ration cards, birth certificates and property documents. It was the Single Window run jointly by CBOs and CFAR which got Sharda into school and secured a pension for both her INDIA LEGAL November 15, 2015

SPECIAL REPORT/ Sex Workers/ Legal Services

“We do not have to knock on govt doors anymore as it now comes to us. The district legal services authority deputed lawyers to help us procure certificates when our husbands deserted us or died.” —Geetha, an activist in Bengaluru 46

November 15, 2015

mother and grandmother. The principal has kept her family background a secret so that she isn’t discriminated against. She is not the only one. Many children of sex workers are now living in residential schools in Andhra Pradesh due to the efforts of social workers. Sunita Kumari, principal of KGB Vidyalaya, Gandlapenta, where over 200 girls from disadvantaged backgrounds are given free education, says: “Normally parents insist on their daughters marrying before they turn 18. But we do not have a single instance of any of our girls being forced to do so. This is because we counsel the parents regularly on the advantages of education and the career opportunities it opens for their children.” Poor performers in school are singled out for special attention of the teachers. In the last two years, all students appearing for the board exam have passed. Community workers constantly look for students who could be potential dropouts or get into crime. Take the case of Ishwaraiyya from Anantapur, whose mother, a sex worker, was murdered by his father, who then fled. The Single Window team ensured that he got

admission in a free government school with a hostel. He says he has put the past behind him and wants to make his grandmother proud. Sreenivaslu, assistant project manager of the District Rural Development Agency at Anantapur, told India Legal that the administration had identified 10 areas in the district that were poor and, therefore, prone to trafficking. It had identified as many as 6,000 women who would be attached to selfhelp groups that would ensure that they get benefits of various government schemes and are not coerced or sexually exploited. The administration would get funds out of the National Livelihood Mission which had earmarked a budget of `11.28 crore, he said. Government officials were, for the first time, more than ready to help these sex workers. This happened because the district collector had told officials that sex workers must be given priority. They were told that under the Right to Education Act, it was their legal right to get access to education. Sujata, who is being treated for HIV/AIDS, says she got 21 children of sex workers admitted to school as she knows the rights they have to education. “I understand the importance of education as I am illiterate,” she says. For the first time, sex workers also realized that they were eligible for pensions. While district officials specified what documents were needed, community coordinators helped them garner the necessary documents and filled in the application forms. Anantapur has six community-based organizations and over 9,000 sex workers under their umbrella. To ensure that sex workers get immediate attention of government officials when they apply, they are given them a distinctive blue file. Usually, action is taken within two weeks.

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

workers get income and caste certificates and other documents. This has brought about a sea change. Ratnamma from Chapiri village in Anantapur says that her nine-year-old daughter secured admission in Vth standard. “She will study till the XIIth without a problem,” she says with a smile. Sujata (name changed) whose mother is a devadasi, was under family pressure to get married. She refused to do so after social workers persuaded her to continue studying. She is now in the XIIth standard. The single window process helped her mother get her a scholarship of `2,500 a year and get hostel accommodation to continue studying. “I am grateful that I now have a future,” she says. Many of us take our lives for granted. She does not.

he new confidence in the community shows. Khaja Bee from Dharmavaram says that when the Aadhar centre was set up, she did not go there, fearing stigma. But, when social workers set it up to give out these cards, she confidently approached them and even got a card for her mentally challenged daughter. Also, under the Integrated Child Protection Scheme, the district also increased financial allocation to ensure that children of sex workers benefited and some were also rehabilitated in government-run homes. As many as 600 children who needed foster care were identified. The single window culture also got government officials to reach out to sex workers in places convenient for them. In a rectangular room in Ramnagar, where the sun filters in through large windows, a group of brightly dressed women with orange and white flowers in their hair, patiently listens to a group of officers explaining what schemes they were entitled to. And, their legal rights. Periodically, the officers come there to listen to their grievances and work out solutions on the spot. It is an excellent example of local governance at its best. Here, Venkatarathnam, the district program manager for HIV/AIDS tells a group how he is working on a proposal to secure loans for them under the scheduled tribe category, where they would only have to repay 10 per-

Ramesh Menon

cent of it if they fall into the category of people with HIV/AIDS. Other officers take notes and promise immediate action. Geetha, who works as an activist in Bengaluru with the Vijaya Mahila Sangha, says: “We learnt how to access social development schemes and HIV prevention methods and realized that even marginalized women have rights. This has happened as sensitive government officials encouraged us with the single window system, listened to our grievances and ensured we got various benefits. We do not have to knock on government doors anymore as they come to us. The district legal services authority deputed lawyers to help us procure certificates when our husbands deserted us or died.” Asha Ramesh, a gender activist in Bengaluru, says the single window and legal training has “amplified the voices of sex workers on issues and given them access to government benefits they never knew about.” But then, it took the effort of many to see this empowerment. All eyes are on Anantapur as it is a model that can easily be replicated all over the country. IL

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

INDIA LEGAL November 15, 2015

RELIGION/ Santhara

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A Matter of Faith

Even as the Supreme Court stays the Rajasthan High Court verdict making Santhara illegal, all eyes are on what the final verdict will be. Is oneâ&#x20AC;&#x2122;s religion more important than the law of the land? By Kalyani Shankar

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

November 15, 2015

N multi-cultural and multi-religious societies, occasional clashes occur on sensitive religious and social issues. The question is how does a state that allows religious freedom deal with religious practices that contravene the laws of the land? Since religion predates the legal framework, a conflict arises when things are seen through the prism of current laws. One

such practice is that of Santhara, practiced by the Jains, where the person willfully embraces death. However, this is at variance with the legal framework, which tends to see this as suicide. In other countries too, religious practices have clashed with the law of the land. France was the first European country to ban the wearing of the full veil. Belgium adopted a similar ban in 2011. In Spain, the city of

Barcelona and some other towns brought in similar bans, as have towns in Italy. In 2014, the European Court of Human Rights upheld the French law. On the other hand, Sikhs won a case in the UK this month, to wear turbans in workplaces. In India, concerns over social justice have forced courts to create a division between religious and secular practices and between essential and non-essential practices of a religion. In the fifties, the apex court upheld the entry of Dalits in temples on the basis of social justice. But of late, with rising awareness of rights, ease of litigation through PILs and proactive NGOs and the media, religious practices that are considered inimical are being challenged in court. COURT INTERVENTION It is not surprising that certain religious practices are no longer considered sacrosanct in India. The courts had dealt with several issues like the entry to Sabarimala as demanded by women, PILs filed against child diksha (the practice of choosing a child as a successor to the head of a mutt), participation of children in Muharram rituals and the right to excommunicate of the Bohras. The practice of Santhara is also now being challenged. Devout Jains believe that Lord Mahavira allowed Santhara or Sallekhana. Here, the ultimate goal is purifying the body and mind by embracing death voluntarily through denying oneself food and water. While some of those who choose Santhara are Jain monks, a majority are lay people, of whom 60 percent are women. However, questions are being raised about who will decide the right to die and what about the right to privacy and personal liberty of the person undergoing Santhara. There is also the question of minority rights as Jains were declared a minority last year. While this community is invoking religion for practicing Santhara, the court is questioning it. It also matters that the four millionstrong Jain community is wealthy. The Santhara issue came into the limelight after Nikhil Soni, a lawyer and human rights activist from Jaipur, approached the Rajasthan High Court and cited public inter-

est to outlaw Santhara in 2006. He equated it with Sati. ILLEGAL PRACTICE On August 10, 2015, the Rajasthan High Court declared Santhara illegal and held that its practice would be punishable under Section 309 of the IPC as an attempt to commit suicide. The guarantee of a right to life does not include within its ambit a right to die, and so it is not protected by Article 21, the Court held. It added: â&#x20AC;&#x153;We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. The premise is that Santhara is not an essential part of Jainism and therefore not protected by Article 25.â&#x20AC;? In the seventies, Ananda Margis in Calcutta wanted to march on the streets with swords and sticks and do the tandava dance claiming it was an essential practice of their religion. The police commissioner would not allow it, stating that it would contravene public order. The court went into the antecedents of the issue and said that since it was a relatively new practice in their religion, it would not count as an essential practice. When the Jains appealed, the apex court stayed the High Court verdict on August

Questions are being raised about who will decide the right to die and what about the right to privacy and personal liberty of the person undergoing Santhara. Courts are also looking into the constitutional rights of the citizen. FIGHT FOR LIBERTY (Below) A woman wearing the hijab in France, the first country in Europe to ban the wearing of the full veil

INDIA LEGAL November 15, 2015

RELIGION/ Santhara

RITES OF PASSAGE (Right) A child getting a ceremonial tonsure at Muharram

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“It is one thing for the state to protect life and promote justice. It is another for it to colonize the various ways in which death can be interpreted, and life be given meaning. Unfortunately, the Rajasthan HC judgment does just that.” —Bhanu Pratap Mehta, social scientist

November 15, 2015

31, 2015. The community is now getting ready to prove that suicide and Santhara are two different things and it is an essential practice. It has also assumed a political flavor with rallies and processions being taken out and Jains seeking the support of organizations like the Vishwa Hindu Parishad, apart from knocking at the doors of governors of various states. RIGHT TO LIFE While Soni’s petition invokes Right to Life under Article 21 of the constitution, Santhara advocates quote the same article to argue that Right to Life is meaningless without the corresponding right to die with dignity. They claim that while people commit suicide due to depression, anger or loneliness, Santhara is observed amid festivity. In India, euthanasia is banned and suicide is considered a crime. If Santhara is banned, so should the samadhi undertaken by Vaishnavites (Devotees of Lord Vishnu) or the fast-untodeath. They also dismiss comparisons with the hunger strikes by Mahatma Gandhi during the freedom struggle or Vinobha Bhave giving up food and water. Quoting historical evidence, the supporters point out that Chandragupta Maurya renounced his throne under the influence of the great Jain ascetic, Bhadrabahu, and

ended his life observing Santhara (298 BC). Incidentally, in December 2014, Minister of State for Home Haribhai Parthibhai Chaudhary said in parliament that the government has decided to decriminalize the attempt to suicide by deleting Section 309 of the IPC, which said that a suicide bid is punishable with imprisonment up to a year or with a fine or both. This was based on a Law Commission report in 2008 which noted that an attempt at suicide may be regarded more as manifestation of a diseased mind, deserving treatment and care rather than punishment. It recommended to the government to initiate the process to delete the section. Incidentally, five states—Bihar, Madhya Pradesh, Delhi, Punjab and Sikkim expressed reservations against such a move. On February 24, 2015, Chaudhary said the proposal had been sent to the law ministry After the Rajasthan verdict, the Jains have got support from such legal luminaries as retired High Court judge Pana Chand Jain. In a documentary on Santhara produced by law professor Shekhar Hathangadi, he points out that Articles 25 and 26 of the constitution allow followers of all faiths to freely profess, practice and propagate their religious faith and the freedom to manage their religious affairs. He says: “Mindful of the country’s ethnic and cultural diversity,

Article 29 guarantees citizens with a distinct culture, the right to conserve the same.” He further says: “Article 18 of the Universal Declaration of Human Rights says that everyone has the right to freedom of thought, conscience and religion; (and the right) to manifest his religion or belief in teaching, practice, worship and observance.” Congress spokesman and eminent lawyer Abhishek Manu Singhvi claims that the Supreme Court for the first time will decide the constitutional validity of Santhara. “It will go into fundamental questions of life and death and into the religious belief of Jains, whether Santhara interferes with human rights or whether it should be allowed to continue. It will be a momentous issue.” Singhvi is the lead counsel for the Jain groups. Shekhar Hathangadi, an award-winning documentary filmmaker on Santhara, observes that Indian laws ignore some of the beliefs of Indian religions since it is based on the Westminster model of colonial rulers. Describing the Rajasthan court verdict as “historic as no other court has criminalized a centuries-old ritual with a rejection of its theological rationale,” he reportedly said that no other world religion takes its fasts to this fanatical point.

VALID QUESTIONS Shurith Parthasarathy, a Madras High Court advocate, has also been quoted in the media as hoping that the apex court would ask the right questions “of whether any social inequities arise out of the practice, of whether any other right of its practitioners are violated through Santhara, of whether the rights of any other person are infracted when a person goes on fast”. While only a fraction of the Jain community practices Santhara, it has widespread support among them. The apex court verdict will be watched as it also has legal ramifications for other religious practices. The Indian state, in responding to the verdict, has to decide whether it should intervene at all in such a practice. As social scientist Bhanu Pratap Mehta argues: “The community, for its part, will need a conversation on the conditions under which Santhara should be permitted. It is one thing for the state to protect life and promote justice. It is another for it to colonize the various ways in which death can be interpreted, and life be given meaning. Unfortunately, the judgment does just that.” Any reform must come from within the community itself. But change is often resisted. Religious beliefs are age-old and faith often too strong to be broken. IL

RITUAL AND TRADITION (Above) Children performing the tandava, an essential practice of the Ananda Margis

INDIA LEGAL November 15, 2015

BOOKS/ The Turn of The Tortoise

India,Forward and Backward Business journalist TN Ninan, in his work The Turn of the Tortoise: The Challenge and Promise of India’s Future, discerns many positive and a few retrograde trends emerging in India. Extracts:

OOKING to the future, one can profitably emulate John Naisbitt and identify key ‘mega trends’ for the coming decade. The first and most obvious is that markets will change in scale—something that has already happened in sectors like telecom, where India has more than 900 million connections, but will happen much more across the board. India has so far been a 25-30 per cent economy: roughly 25-30 per cent of households belong to the middle class, and about that number own a private vehicle and have active bank accounts. Also, just under 30 per cent of the relevant age cohort acquires secondary education certification (class ten) every year. The big change coming over the next decade is that the 30 per cent figure

IN FIFTH GEAR The phenomenal growth of the middle class has led to a boom in the car market Rajeev Tyagi

November 15, 2015

Anil Shakya

could nearly double. That is seismic change for society and the economy, compressed into a short decade; bear in mind that the number of college-going students has already multiplied from 8 million to 20 million in less than a decade. If the economy grows at an annual average of 7 per cent over the next decade, the median family income for what will be a 1.4 billion-strong population will have grown from `22,500 in 2015 to about `40,000 in constant rupees—comfortably above $10 PPP benchmark for qualifying to become part of a ‘global’ middle class. The numerical growth of this class—from 340 million in 2015 to perhaps 800 million in 2025—combined with greater purchasing power for each one of those 800 million, and buttressed from below by a strong neo-middle class cohort, means that the markets for all manner of goods and services will explode. The car market, for instance, could become the world’s third largest—ahead of Japan, today’s number three, with twice India’s current annual sales of 2.6 million. Housing construction, retailing, financial services—these foundational sectors of any modern economy will all witness dramatic growth. Many markets will grow at sustained rates of 10-12 per cent, trebling in size over a decade—as indeed has happened in the past in, say, the sale of trucks. Outbound tourist traffic in 2013 was 16.6 million, three times

what it was a decade earlier. It is easy to imagine what will happen to the aviation business if the number trebles again in the next decade, to 50 million. This is not fanciful; Chinese outbound traffic is already more than 90 million. There is a reason why India’s aviation market too is forecast to become the world’s third largest. The important point is that, if the economy does well, these will not be exceptional stories.

SKY-ROCKETING GROWTH The country’s demographic growth is positive news for real estate

THE RETREAT OF THE STATE The second mega trend will be the unwilling retreat of the state. Already, 43 per cent of schoolchildren go to private schools. That number is growing by 1.5 percentage points annually; by 2025, therefore, 60 per cent of school-age children could be going to private schools. Beyond class eight, the majority of students are already in private schools. This is unprecedented: no country has seen public education reduced to a smaller component than private education. That it has happened in India serves as a measure of the failure of the country’s public programmes. Such a switchover has already happened in medical care, with 60 per cent of hospital beds now privately owned. In education, the factor driving the change has been perceived differences in the quality of education provided. In medical share, the issue is a plain shortage of public hospitals, so patients often don’t have a choice when they need hospitalization. INDIA LEGAL November 15, 2015

BOOKS/ The Turn of The Tortoise

THUMBS UP Private schools offer the best possible infrastructure to hone studentsâ&#x20AC;&#x2122; faculties

These switchovers are mirrored in other service sectors like telecom and aviation, where now private providers have displaced erstwhile state-owned monopolies. The next important sector for such a consumer flip to the private sector could be banking. It is likely that private banks will grow faster than government-owned banks, which account for 70 per cent of banking activity but are constrained by stressed balance sheets (the government has pumped in `58,600 crore as additional capital in 2011-14, and intends to pump in further `70,000 crore over 201519). Yet, as more private bank licences get issued and new kinds (such as payment banks) are born, it is plausible that, in a decade's time, the 70:30 public-private ratio might swing closer to 60:40, or, in an extreme scenario, to 50:50.

In India, by 2025, 60 per cent of children will go to private schools. No country has seen public education reduced to a smaller component than private education.

November 15, 2015

What remains as areas of public sector dominance are mining, energy production and defence. In the last of these, the private sector is about to make its first serious forays. As for mining, Rio Tinto, allowed to do diamond prospecting, is confident that it will produce multiples of the 84,000 carats of diamonds that the government-owned National Mineral Development Corporation (NMDC) extracts from the countryâ&#x20AC;&#x2122;s only operating diamond mine. The Bunder mine in Madhya Pradesh, which Rio Tinto hopes to develop, has just one of seven rock pipes in the area, with a reported promise of 27.4 million carats of diamonds. In comparison, NMDCâ&#x20AC;&#x2122;s entire cumulative output so far has been a million carats. Gold mining, closed as being unviable for many years, could see revival in the private sector.... In macroeconomic terms, the public sector accounts for a fifth of GDP, half of that being from the government and the rest state-owned enterprises. Over the years, the broad trend would continue to be that stateowned enterprises shrink in relative size to private sector providers. Think Air India,

which has lost `36,000 crore in seven years up to 2013-14. Or Doordarshan, the state funded television broadcaster which has lost out to private cable and satellite broadcasters despite having a monopoly in terrestrial broadcasting. It has seen its channel feature in the bottom quartile of channels—whether news, entertainment or educational—when ranked on viewership. The organization has more than 30,000 employees and an annual revenue of about `1000 crore, leaving additional costs of `1850 crore to be picked up by the taxpayer—most of it going towards employee cost. But while public sector enterprises may shrink or lose market share, economies on the growth turnpike usually see an increase in the tax-GDP ratio; that means government budgets will grow in size relative to the economy. This should mean expansion of government and public or constitutional institutions, because there is a clear need for more policemen, judges and the like. Cash payouts (‘direct benefit transfers’) could conceivably account for an increasing chunk of government expenditure. If a broad policy switch takes place, from ‘make' to ‘buy’ (that is, governments no longer provide services like education and water supply but pay for such services from private providers), the growing private sector dominance of economic activity will continue.... SHIFTING CENTRES OF GRAVITY The third mega trend is the shift of the centre of gravity from New Delhi to state capitals.... This manifests itself in many ways, starting with the end to one-party dominance in Parliament (no party has had complete control of both houses of Parliament since 1989) and the rise of strong state-level leaders in national parties (Modi was one, the late Y.S. Rajasekhara Reddy another) or as leaders of their own parties. Then there is financial power. State governments used to be debt-laden... and therefore unable to spend much programme money till the restructuring of state finances in 2003, and the much greater share of tax funds that now goes to the states. Most states are now fiscally comfortable, and have greater freedom to spend money as they wish

STAID APPROACH Doordarshan has lost out to private channels in the last two decades

The state’s retreat from education, health and other key areas of human development serves as a measure of the failure of the country’s public programmes. because of the reduced role for discretionary transfers from the Centre—a change facilitated by Modi’s decision to abolish the Planning Commission, which used to prescribe policies for states to adopt.... The combination of constitutional federalism, greater financial autonomy and centrifugal political trends means that state economic growth rates and human development indicators, not to mention industrial investment, can vary depending on the quality of governance at state level. Chief ministers seen to be delivering get re-elected often, in some cases repeatedly—which becomes an incentive to continue in the same vein. It is not for nothing that at least two BJP chief ministers declined invitations from Narendra Modi to join his cabinet in New Delhi, preferring to stay where they were as state bosses. One, from the tiny state of Goa, was later persuaded to take charge as the nation’s defence minister.... A LIBERAL DEMOCRACY Finally, there is the question of whether the country’s constitutional liberalism will INDIA LEGAL November 15, 2015

BOOKS/ The Turn of The Tortoise

DANGEROUS OMENS The Ghar Wapasi drive threatened social harmony

THE TURN OF THE TORTOISE: THE CHALLENGE AND PROMISE OF INDIA’S FUTURE By TN Ninan Publisher: Penguin Books India Price: `699; Pages: 354

November 15, 2015

gradually give way to a less-than-liberal democracy. The country has a long tradition of being trigger-happy when it comes to banning uncomfortable books and films, and more recently websites. Free expression, it has been generally accepted, should not cause religious offence (the reason for banning Salman Rushdie’s The Satanic Verses). But, as Rushdie has argued, this can be the start of a slippery slope. There is the case, therefore, of a book on Shivaji being banned because a vigilante group protested and attacked a library in Pune. Publishers refrain from publishing specific books or sometimes even withdraw them from the market in response to protests. The painter M.F. Husain could not exhibit in India towards the end of his life, leaving the country to live and eventually die in Dubai.... Some of the points of conflict are the result of social churn that is linked to modernization. Traditional hierarchies, boundaries and authority get challenged in a more freewheeling world where more women go to work, where youngsters mingle without concern for caste or community, where old identities get fused into new ones that might seem deracinated. Counter-trends do exist,

such as an increase in overt religiosity and the disappearance of women behind the veil in parts of the country where this was not the practice earlier. The backlash is often led by subalterns who have not been swept up by the new processes, and takes the form of physical attacks on individuals (women in pubs or couples celebrating Valentine’s Day) as well as moves to reassert old patriarchies (by khap panchayats and through the ‘Ghar Wapasi’ drive).... These different trends are manifestations of a society, polity and economy caught in a process of evolution, with change at multiple speeds. When there are many forces driving change on a grand canvas, tensions and conflict are inevitable by-products. The reassuring facts in a broadly hopeful scenario are that the directions of change are overwhelmingly positive, and that the system as a whole has a bedrock of stability that is not affected by the surface churn. That is why each generation of Indians has been able to say with confidence that the life of the next generation will get better for larger numbers not at optimum but at what appears to be acceptable speed, and not wholly but very substantially. IL

AVIATION/ EASA Guidelines

Making Air Travel Safer After the Germanwings crash, the European Aviation Safety Agency laid down guidelines not just for pilots but also for aero-medical examiners. This could be a benchmark to make the skies safer in India too By Shobha John

HE tragic crash of the A-320 Germanwings plane in the French Alps in March 2015, which killed 150 people, made the aviation industry and regulators wake up to the dangers of pilots flying under psychological strain. There were numerous calls for psychometric/psychological tests for pilots after the flight’s co-pilot, who was said to be suffering from depression, crashed the plane into a mountain. A few months after the crash, the European Aviation Safety Agency (EASA) came out with a far-reaching “Action plan for the implementation of the Germanwings Task Force recommendations”. These

UNI

November 15, 2015

CONTROL CENTER (Left) Pilots’ psychological welfare is of importance now (Facing page) A French rescue helicopter flies over the debris of the A 320 plane near Seyne-les-Alpes

guidelines could be used as a reference in India too by the Directorate General of Civil Aviation to lay down new rules and regulations. It lays special emphasis on aero-medical examiners, which in the case of India, is done by Indian Air Force (IAF) doctors. EASA’s taskforce included representatives from Air France; DGAC France; European Commission; UK CAA; Finnish Transport Safety Agency; Lufthansa; European Cockpit Association; Easyjet; British Airways; BEA France and FAA. GOOD ASSESSMENT According to Capt Shakti Lumba, a veteran pilot who was head of flight operations at IndiGo and Alliance Air, EASA arrived at these guidelines after a committee took a holistic view of the problem. “These guidelines are new as they provide achievable compliance. They correctly identified that the problem is not only with the pilot but with the current system of aero-medical pilot assessment,” he said. EASA said in its report: The crash “demonstrates that the safety of passengers can never be taken for granted and that the regulators have the duty to quickly adapt to a variety of challenges in a constantly changing

environment”. These recommendations are meant to prevent such a disaster from happening again. Concrete action has been laid down in the areas of air operations, aircrew, information technology and personal data so that air travel becomes safe. In an attempt to see that these guidelines are disseminated worldwide, EASA will, by the end of this year, have a global aircrew medical fitness workshop before a large audience of European and worldwide stakeholders to see how these recommendations can be implemented. Following this, concept papers about the actions proposed will be drafted. And in 2016, operational directives in the area of air operations and aircrew will be sent out by EASA to operators and national aviation authorities. This is the first time something like this is being done. EASA GUIDELINES These are the six recommendations of the EASA Germanwings Task Force: There should be two persons in the cockpit. All airline pilots should undergo psychological evaluation as part of the training or before entering service. The airline shall verify that a satisfactory evaluation has been carried out. The psychological part of the

EASA recommends a robust oversight program over the performance of aero-medical examiners, including the practical application of their knowledge. Networks of aero-medical examiners should be created to foster peer support.

INDIA LEGAL November 15, 2015

AVIATION/ EASA Guidelines

“While IAF doctors do the medical tests of pilots every six months, peer support examiners don’t get an opportunity to help their colleagues. It would be a good idea for airlines to support peer groups comprising their own company doctors and senior pilots. Day-to-day behavior of pilots can only be assessed by colleagues flying with them.” —Kanu Gohain, former DGCA

November 15, 2015

different organization sizes and maturity levels, and provide provisions that take into account the range of work arrangements.

Photo Division

initial and recurrent aero-medical assessment and the related training for aero-medical examiners should be strengthened. EASA will provide guidance material for this purpose. There should be mandatory drugs and alcohol testing as part of a random program of testing by the operator and at least in the following cases: Initial Class 1 medical assessment or when employed by an airline, post-incident/accident, with due cause, and as part of follow-up after a positive result. Establish a robust oversight program over the performance of aero-medical examiners, including the practical application of their knowledge. National authorities should strengthen the psychological and communication aspects of aero-medical examiners training and practice. National regulations should ensure that an appropriate balance is found between patient confidentiality and the protection of public safety. Create an aero-medical data repository as a first step to facilitate the sharing of aero-medical information and tackle the issue of pilot non-declaration. Implement pilot support and reporting systems. These are linked to the employer’s Safety Management System within the framework of a non-punitive work environment. Requirements should be adapted to

GLOBAL WORKSHOP Coming to air operations, EASA recommends that all airline pilots should undergo psychological evaluation. It says that a global workshop should be held with representatives from at least the following organizations: IATA (International Air Transport Association), IFALPA (International Federation of Airline Pilots Association), ECA (European Cockpit Association), EFT (European Transport Workers’ Federation), IACA (International Air Carriers Association), ELFAA (European Low Fares Airline Association), NAAs (National Aviation Authorities), ECAST (European Commercial Aviation Safety Team), aero-medical examiners, medical experts providing training and aero-medical assessors, ESAM (European Society of Aerospace Medicine), Pompidou Group from the Council of Europe (Co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs), European Workplace Drug Testing Society, FAA (Federal Aviation Administration) and CAA Australia. For aircrew, EASA’s recommendation is: The psychological part of the initial and recurrent aero-medical assessment and the related training for aero-medical examiners should be strengthened. According to Capt Lumba, this is a forward-looking move. “Psychological testing is an expertise not all aviation medical specialists possess. Till now, pilot medical requirements only required psychological evaluation if the pilot admitted a case of depression, etc. Now it will become part of the system, for which the committee will put in place evaluation standards and required training of the doctors.” Checking the performance of aero-medical examiners is another new guideline. However, in India, the DGCA has outsourced medical assessment of civilian pilots to IAF doctors, who are already under tremendous pressure. With the growth in aviation, Capt Lumba says, civilian aviation medical experts are desperately needed. “The IAF will not be able to cope with the number of pilots com-

ing into the system. To ease matters, the DGCA would need to work and apply its mind. It can do neither in its present avatar. It’s time some medical colleges started providing diplomas in aviation medicine post MBBS as a speciality.” But an aviation medicine expert said on condition of anonymity that testing the knowledge of aero-medical examiners is already being done as all of them need to be specially qualified and experienced. “Also, the facility where the medicals are conducted are inspected to ensure adequacy. All aero-medical examiners are required to remain updated by attending DGCA-arranged Continued Medical Education programs once in two years,” he says. PEER GROUP There is another group which can help pilots in distress. Kanu Gohain, former DGCA, says: “While IAF doctors do the medical tests of pilots every six months, peer support examiners don’t get an opportunity to help their colleagues. It would be a good idea for airlines to support peer groups comprising their own company doctors and senior pilots. Day-to-day behavior of pilots can only be assessed by colleagues flying with them.” With regard to information technology, EASA recommends the creation of an aeromedical data repository as a first step to facilitate the sharing of aero-medical information and to tackle the issue of pilot non-declaration (of psychological problems). This, says Capt Lumba, makes immense sense. “In the European Union, pilot licensing of each member country is harmonized under a single EU license which is issued by individual member states but acceptable in all EU countries. This allows a pilot to move around switching jobs. Having an aero-medical data repository, therefore, is a far-reaching move.” This pan-European medical certification also gives pilots the freedom to apply to an aero-medical examiner certified by any EASA state. A system to share aero-medical information in an efficient manner while protecting the data is important to minimize the risk of non-declaration. To implement this recommendation, EASA will draft the technical specifications for the development

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of the data repository by the end of 2015. The main hurdle will be the different approaches to personal data protection among member states of EASA. The target is to have the system in place by December 2016, including the production of a user guide. However, in the case of India, says Gohain, the DGCA should mandate the IAF and private hospitals which check Class I medicals (pilot recruitment medicals), to maintain health records, especially psychological ones, so that this database can be assessed when needed. With regard to data protection, EASA says there should be national regulations to ensure that an appropriate balance is found between patient confidentiality and the protection of public safety. To support this, EASA proposes to discuss the processing of personal (health) data during the envisaged global workshop, involving all relevant stakeholders, including representatives of national medical associations. In particular, the obligations of various actors should be addressed: operators, medical doctors, authorities and pilots. After the insight gained about minimum personal data, the various actors need to exercise their safety responsibilities. These regulatory actions, guidance material and database will, in future, go a long way in making the skies safer. IL

TRAGIC LOSS (Above) Family members of passengers killed in the Germanwings crash at Barcelona airport

INDIA LEGAL November 15, 2015

AVIATION/ Regional Connectivity

Rajeev Tyagi

A Flight of Fancy? There was skepticism over the govt’s move to develop 100 airports in small cities. But if a new hub-and-spoke concept takes off, it could give a fillip to the economy and Modi’s “Make in India” dreams By Shobha John

November 15, 2015

HE next phase of aviation growth, it was said, would be in Tier-II and Tier-III cities. In fact, remote connectivity was one of the aims of the Modi government when it swept to power in 2014. With this in mind, it wanted to develop 100 airports in small cities within the next 20 years. And in what is a move to further this dream, the Business Aircraft Operators Association (BAOA) has submitted a list of

Make in India Dream Business Aircraft Operators Association has submitted a list of 10 airport clusters for remote connectivity to Airports Authority of India (AAI). Three-five hubs are identified in each cluster

CLUSTER

TIMELY ACTION NEEDED Metro airports such as Delhi will soon face pressure as passenger footfalls increase

10 airport clusters for remote connectivity air services to the Airports Authority of India (AAI) through the civil aviation ministry. If this plan fructifies, it will reduce the pressure on metro airports as airlines expand their fleet and passenger footfalls go up. It will also give a fillip to the economy of smaller cities and towns, leading to greater buoyancy. During the 12th Plan (ending March 31, 2017), about `1,500 crore has been earmarked to develop non-metro airports. AIR SERVICE CLUSTERS These 10 clusters are spread out across various regions in India and include Maharashtra; Gujarat; Rajasthan; the North-East; UP and MP; Tamil Nadu and Kerala. In each cluster, BAOA has identified various airports and hubs, making them a total of 126 airports and 38 hubs. Some of the airports which have been identified are in rather remote areas such as Yavatmal, Keshod, Naliya, Jhunjhunu, Zero, Khowai, Panna, Behala and Donakonda (see table). Jayanth Nadkarni, president of BAOA,

AIRPORTS FOR REMOTE ROUTES (There may be other uncontrolled airports)

Maharashtra Region (14 Airports, 4 hubs)

Mumbai (hub), Nasik, Pune (hub), Aurangabad, Nanded, Shirdi, Baramati, Akola, Nagpur (hub), Amravati, Yavatmal, Gondia (hub), Ratnagiri, Kolhapur

Gujarat (11 airports, 3 hubs)

Ahmedabad (hub), Baroda (hub), Rajkot (hub), Jamnagar, Keshod, Porbandar, Dwarka, Bhavnagar, Daman, Diu, Surat (hub), Kandla, Bhuj, Naliya

Rajasthan (9 Airports, 3 hubs)

Jaipur (hub), Jodhpur, Jaisalmer, Bikaner, Jhunjhunu, Barmer, Udaipur (hub), Kota (hub), Sawai Madhopur

North East (21 Airports, 3 hubs)

Tezpur, Guwahati (hub), Rupsi, Shella, Zero, Daporijo, Along, Tezu, Pasighat, Dibrugarh, Bagdogra, Dimapur, Shillong, Jorhat (hub), Kamalpur, Khowai, Agartala hub), Silchar, Imphal, Kailashahar, Lilabari

Punjab, HP, Haryana, J&K & Uttarakhand (13 Airports, 4 hubs)

Amritsar (hub), Ludhiana, Pathankot, Chandigarh (hub), Kullu, Shimla, Gaggal, Jammu, Srinagar, Leh, Dehradun (hub), Pantnagar, Delhi (hub)

UP & MP (14 Airports, 5 hubs)

Kanpur, (hub) Lucknow (hub), Allahabad, Varanasi (hub), Gorakhpur, Jhansi, Gwalior, Lalitpur, Bhopal (hub), Indore, Jabalpur (hub), Panna, Satna, Khajuraho

Bihar, Jharkhand, Chhattisgarh, West Bengal, Orissa (18 Airports, 5 hubs)

Raxaul, Jogbani, Muzzafarpur, Patna (hub), Jogbani, Gaya, Ranchi, Bilaspur, Raipur (hub), Chakulia, Kolkata (hub), Asansol, Cooch Bihar (hub), Malda, Behala, Balurghat, Jharsuguda, Bhubaneswar (hub)

AP, Telangana (8 Airports, 4 hubs)

Vishakhapatnam (hub), Rajahmundry, Vijaywada (hub), Donakonda, Tirupati (hub), HyderabadBegumpet (hub), Warangal, Cuddapah

TN & Kerala (11 Airports, 4 hubs)

Calicut, Kochi (hub), Trivandrum, Coimbatore (hub), Tuticorin, Madurai (hub), Tiruchirapalli, Pondicherry, Vellore, Chennai (hub), Salem

Karnataka & Goa (7 Airports, 3 hubs)

Goa, Hubli, Hassan, Mangalore (hub), Mysore, Belgaum (hub), Bengaluru-HAL (hub),

INDIA LEGAL November 15, 2015

AVIATION/ Regional Connectivity

“If smaller airports are going to be vehicles for remote connectivity, they will need hangars and 24x7 watch (remain open). It is only then that ancillary services such as MROs and manufacturing can come in and jobs be created.” —Jayanth Nadkarni, president, Business Aircraft Operators Association

November 15, 2015

panies will have to schedule their flights in conjunction with airline companies,” he says.

said: “We had been working on this for a long time. There is a buzz in the government about increasing remote connectivity. All the airports mentioned in the BAOA list are running airports and have basic facilities such as a runway, air traffic control (ATC), security, fire and ambulance services. But if smaller airports are going to be vehicles for remote connectivity, then they will need hangars where planes can be rectified and 24X7 watch (remain open). Presently, if a plane breaks down in any small airport, several man days are lost in trying to get equipment and technical expertise from metros.” It is only after these essential services come up that ancillary services such as MROs (aircraft maintenance, repair and overhaul) and manufacturing can come in and jobs be created to serve Prime Minister Modi’s “Make in India” dream, said Nadkarni. These airports will work on the hub-andspoke concept. Hubs will be major cities where commercial airlines with their big jets fly, while spokes will be smaller towns, where 40-or 30-seater planes of charter or business companies fly. So, if a businessman wants to go to Jamnagar, he will take a scheduled airline to one of the hubs in Gujarat, say Ahmedabad, and from there, take a smaller plane to Jamnagar. “Of course, this means that charter com-

FAR BEHIND Though India has a billion-plus people, its aviation reach is far from satisfactory. Just to give an idea of how far we are lagging, let us look at how it compares with other countries. In India, according to BAOA, there are around 400 airports. These include large, small, licensed and uncontrolled ones. Compare this to over 10,000 airports in the US and more than 4,000 in Brazil, which is another BRICS country like India. Another difference is that while general aviation (GA) and business aviation (BA) planes in India are being pushed out of metro airports due to lack of space, several global cities have more than three airports serving them. For example, New York has John F Kennedy Airport, LaGuardia and Newark, while London has Heathrow, London City Airport and London Biggin Hill. In India, no metro has two airports. It also has no airports catering to GA/BA planes. Compare this to China’s 400 GA airports. And in future, this is expected to go up to 1,500. However, India’s civil aviation ministry is giving a fillip to regional connectivity as it is allowing non-scheduled operator permit (NSOP) holders or what is called charter operators to fly to non-metros and have schedules like regular airlines. This is similar to what is there in many countries. With better route dispersal, smaller cities will be connected. Many of them will be low-cost terminals and have a basic terminal building, low ticket charges and 1-2 flights a day, starting with smaller aircraft operations. Only essential facilities for operation will be provided till the scale of operations is increased to a commercial model. India is the ninth largest aviation market and is expected to reach the third position soon. With the development of smaller airports, airlines too will be interested in flying there. However, many hurdles such as deficient infrastructure and various taxes are a spoiler and the sooner the government tackles this, the better it will be. IL

ECONOMY/ FDI/ India vs China

Did we Over-take the Dragon? Indian newspapers recently quoted a Londonbased consultancy firm to claim that the country received more foreign investment than China in the first half of 2015. How realistic was this impressive claim? By Rajendra Bajpai

AS India overtaken China in inward foreign direct investment (FDI) in the first half of this year? Indian newspapers recently gleefully quoted a data consultancy owned by the Financial Times of London that India had left behind China in the first half of this year by attracting $31 billion against China’s $28 billion. By all accounts this claim appears to be far-

November 15, 2015

fetched. Reserve Bank of India, it seems, does not support this. It estimates FDI in India at $20.6 billion between January and June this year and if you take into account outflows in the form of FDI, the net inflow would be only about $19 billion. CHINA AHEAD China’s estimates are altogether different. National Statistical Bureau of China has estimated the FDI during the period at $68.4 billion or three times more than India’s. The

UNI

trouble is that data provided by both India and China is suspect. China includes investment coming in from its special administrative region, Hong Kong, as FDI. But lots of wealthy Chinese send funds over to Hong Kong and bring it back into China to take advantage of special facilities afforded to overseas investors. Edward Graham, Senior Fellow of Institute of International Economics and Erika Wada, Research Associate of the same Institute, who examined FDI in China, said this was

â&#x20AC;&#x153;round trippingâ&#x20AC;?. This is a practice common in India too but automatically gets clubbed under foreign direct investment. A significant amount of money coming into India from Mauritius and Singapore is really Indian money, sent secretly overseas, returning to the country. But there are many other indications that clearly show that India is not poised to beat China anytime soon in attracting FDI. A World Bank report which has listed countries on the basis of ease of doing business has

NEIGHBORHOOD ALLIANCES (Above) Chinese Premier Li Keqiang introducing Chinese dignitaries to Prime Minister Narendra Modi in Beijing

INDIA LEGAL November 15, 2015

ECONOMY/ FDI/ India vs China

Decision-making is a problem in India. India took 27 years to decide on building a tunnel at Rohtang pass. China built the 1,142km-long railway line between Qinghai and Lhasa in less than five years.

Somalia and Sub-Saharan Africa. “The kind of poverty we see in India is not visible even in Yunnan province of China,” says Suresh Sagar, a Delhi businessman, who frequently visits China.

BOOMING SKYLINE (Top and above) Shanghai, China’s biggest city, is a global financial hub

November 15, 2015

ranked India at 142nd place in the world while China is at 90th place. India is ranked 158 in terms of difficulties of starting a business while China is 128. India is 137thmost difficult place to get electricity while China is ranked 124. Registering a property is also a problem and India is ranked 121 while China is placed at 37th place. Besides, China has had a 13-year head start over India in opening up its economy to the world. China began in 1978 but India started reluctantly in 1991. By 2010, China had lifted an estimated 300 people above the poverty line while India is still compared to

SIGNIFICANT DIFFERENCE There are significant differences between the way Chinese work and Indians execute projects. Decision-making is a problem in India. And perhaps not so great in China. In India, it took 27 years to decide on building a strategic tunnel at Rohtang pass. China built the 1142 km long railway line between Qinghai and Lhasa in less than five years. Most of it is built high on mountains and the highest tunnel is at 4095 meters. China’s progress is an eye-opener. And it has become a manufacturing hub of the world. R Himachalapathy, a Coimbatore-based research scholar, said: “China is a fast industrializing country whereas India seems to be entering the post-industrial phase without having industrialized. We need to reverse the trend by stimulating industrialization, especially since it creates more jobs and has greater multiplier effects.”

“China’s GDP was lower than that of India in absolute terms in 1978 but caught up with India in the very next year,” he wrote while comparing the two economies.”The size of Chinese economy (in 1991) was 1.47 times that of India. In 2008, the size of Chinese economy (was) 3.58 times that of India.” “By almost all accounts, FDI in China has been one of the major success stories of the past 10 years,” Graham and Wada wrote. “Starting from a base of less than $19 billion in 1990, the stock of FDI in China rose to over $300 billion at the end of 1999. Ranked by the stock of inward FDI, China thus has become the leader among all developing nations and second among the APEC nations (only the United States holds a larger stock of inward FDI).” Besides, China also attracted foreign portfolio investment mainly by institutional investors in the stock market. This was about $17 billion in the first half of 2015. However Graham and Wada also point out that the story of FDI in China is not rosy all the way and is beset with problems. By all accounts, the policy environment for foreign direct investors in China is difficult, and much anecdotal evidence suggests that some of these investors are becoming discouraged by this environment while other potential investors have been deterred by it. But despite these negatives China receives a fair share of foreign investments. FDI INFLOWS INTO INDIA As for India, the annual average inward FDI was $7.46 billion between 1991 and 2008 which was 0.96 percent of the total annual average inward FDI into world and 15.29 percent of the total annual average inward FDI into China, Himachalapathy said. Latest figures show the Chinese economy grew by 6.9 percent in three months to last September slightly better than the forecast of 6.8 percent but down from 7 percent in the previous quarter. Chinese leaders have been assuring the world that their economy is well under control and there is no reason to panic. “Underlying conditions are subdued but stable,” said Julian Evans Pritchard, an analyst with Capital Economics of Singapore. “Stronger fiscal spending and more rapid

A World Bank report which has listed countries on the basis of ease of doing business has ranked India at 142nd place in the world while China is at 90th place. credit growth will limit the downside risks to growth over the coming quarters.” Chinese innovations are remarkable even when it comes to minor matters. If you are a smoker, security men take away your lighters at Indian airports. You will never see your 10rupee lighter again. In China, they take away your lighters and put them into baskets at exit points and you are welcome to take a lighter from there. Simple rules make things simple for people. Kapil Bhatia, Chairman of InterGlobe Enterprises, should know. His company runs two BPOs in China and several travel related businesses in India, including hotels and low-cost carrier IndiGo. “They honour their commitments but not in India. In China, they are helpful, not in India where bureaucracy is a big hurdle,” he says adding that “getting a trading license and opening a bank account is difficult in China. But the rules are very clear cut. In India they are very confusing.” It is not for nothing that China is seen as a dragon and India is not considered in the same league. That’s why when China sneezes world economies catch a cold. When India sneezes, only Indians catch a cold. IL

STRATEGIC MOVES IBM CEO Ginni Rometty calling on Prime Minister Narendra Modi in New Delhi

INDIA LEGAL November 15, 2015

HEALTH & ENVIRONMENT/ Biomedical Waste

Dangerous Dump HEALTH WASTELAND (Above) Syringes callously discarded by hospitals are a big health hazard

Biomedical waste is often not safely disposed off by hospitals and institutions despite there being Biomedical Waste (Management and Handling) Rules By Papia Samajdar

November 15, 2015

N mid-2013, a journalist friend fell seriously ill while investigating a story on biomedical waste (BMW) and she contracted tuberculosis in her uterus. As she was working for a television channel, she was denied permission to use a facemask, and she did not realize the grave implications of searching through the waste dumped outside a well-known lung facility in Delhi. Both the hospital and authorities passed off this waste as municipal waste and as she looked for evidence,

her deteriorating health confirmed the story she was working on. Not only does biomedical waste find a convenient way to municipal waste, dumped right outside healthcare facilities, but used syringes are collected by rag-pickers, sanitized and ready to be sold again with practised ease. These syringes should ideally be disposed off in a stipulated manner, but most clinics and hospitals, including highend ones, donâ&#x20AC;&#x2122;t follow protocols when it comes to their safe disposal. Needless to say, the story outside Delhi is just as grave, if not worse. In January 2013, women from three neighboring villages in Sambalpur district of Odisha approached a local NGO complaining that the municipal authorities were illegally dumping BMW on their land. The NGO, which inspected the site, found a high amount of biomedical waste there and, shockingly, this was also a place where children played. As children started falling sick, the villagers were forced to leave their land. While the authorities were requested not to use the land for dumping and the state pollution control board was notified of this ill-practise, the dumping reduced, but there was no action to clear it. DEPRESSING SCENARIO A 2012 report by INCLEN Program Evaluation Network, a Delhi-based international network of healthcare professionals analyzing the state of BMW disposal across India, came out with a report which had depressing results. It looked at 25 districts in 20 states to document the practices related to BMW. The study categorized 82 percent primary, 60 percent secondary and 54 percent tertiary healthcare centers as red, signifying poor management and disposal practises. It called for immediate action and commitment to the policies and regulations laid down in BioMedical Waste (Management and Hand-ling) Rules, 1998. Though the government talks about Swachh Bharat Abhiyaan, it does not include BMW. While huge money is being pumped into building toilets, little attention is being paid to ensure safe and hygienic disposal of this potentially dangerous waste.

Categories of BMC Safe disposal methods to prevent a medical disaster Option

Waste

Treatment & Disposal

Category No. I

Human anatomical waste (human tissues, organs, body parts)

incineration, deep burial*

Category No. 2

Animal waste (animal tissues, organs, body parts carcasses, bleeding parts, fluid, blood and experimental animals

incineration/ deep burial local autoclaving/ microwaving/ incineration

Category No 3

Microbiology & biotechnology waste (wastes from laboratory cultures, stocks or specimens of micro-organisms live or attenuated vaccines, human and animal cell culture used in research and infectious agents from research and industrial laboratories, wastes from production of biologicals, toxins, dishes and devices used for transfer of cultures)

Category No 4

Waste sharps (needles, syringes, scalpels, blades, glass, etc. that may cause puncture and cuts. This includes both used and unused sharps)

disinfection (chemical treatment/ autoclaving/ microwaving and mutilation/ shredding)

Category No 5

Discarded medicines and cytotoxic drugs (wastes comprising of outdated, contaminated and discarded medicines)

incineration/ destruction in secured landfills

Category No 6

Solid waste (items contaminated with blood, and body fluids including cotton, dressings, soiled plaster casts, lines, beddings, etc)

incineration/ autoclaving/ microwaving

Category No. 7

Solid waste (wastes generated from disposable items such as tubes, catheters, intravenous sets etc)

Chemical treatment, autoclaving/ microwaving and utilation/ shredding

Category No. 8

Liquid waste (waste generated from laboratory and washing, cleaning, house-keeping and disinfecting activities)

disinfection by chemical treatment and discharge into drains.

Category No. 9

Incineration ash (ash from incineration of any bio-medical waste)

disposal in municipal landfill

Category No. 10

Chemical waste (chemicals used in production of biologicals, disinfection, insecticides, etc.)

chemical treatment and discharge into drains for liquids and secured land fill for solids

*Deep burial shall be an option available only in towns with population less than five lakh and in rural areas INDIA LEGAL November 15, 2015

HEALTH & ENVIRONMENT/ Biomedical Waste

GOING BY THE RULE BOOK (Above and right)) Thatyur community health center which has deep burial pit for disposal of bio-medical waste

Showing the Path

hile the state of affairs seems dismal in big cities with better infrastructure and facilities, a small community health centre (CHC) in Thatyur village, Tehri Garhwal district, Uttarakhand, has shown the way forward (see pics above). This government center, run by a private party known as Rajhbra Medicare, is following the rules of segregation and safe disposal. It has 10 beds and has specialists as mandated by the government, namely gynecologists, pediatricians, surgeons, dentists, anesthetists and general physicians. Situated approximately 80 kms from Dehradun, the CHC caters to approximately 60 neighbouring villages. Since Rajbhra took over about a year back, the number of patients

to the CHC is rising and biomedical waste is being segregated. Given the remoteness of the location and the fact that the population is less than five lakh, they have opted for the deep burial option for Category 1 and 2 types of waste. There is in-house segregation according to the color coding and microwave and shredding of waste. Deep burial is done in a concreted lining in the ground, and this will be covered once it’s full. There is also a temporary pit for disinfected waste. The CHC has an authorization from the Uttarakhand State Pollution Control Board to manage and dispose the generated BMW on site and is due to get its certificate after inspection from the authorities.

Clean India cannot be achieved only by ridding her of open defecation; there are many more battles to be fought. Safe and proper disposal of BMW is one such battle but gets lukewarm response from the government. When it comes to awareness of health hazards, it is often minimal. So why is BMW such a huge health

November 15 2015

hazard? Biomedical waste is waste generated by healthcare, research facilities and associated laboratories. It includes both (a) “communal waste” such as paper and bottles that can be dealt with through local solid waste management system; and (b) potentially dangerous “biomedical waste” such as sharps (needles, scalpels, knives, blades, broken glass) and wastes with infectious, hazardous, radioactive and genotoxic properties (which damage the genetic information within a cell, causing mutations). One ton of BMW, which can be as little as one percent of the total daily municipal solid waste (MSW) generated in a Tier II city, can infect the total MSW generated by the city. The MSW treatment plant converts the polluted waste into compost, which is used in agriculture, thus entering our food chain. ENVIRONMENT HAZARD Without proper management of BMW, environmental pollution would increase, leading to multiplication of flies, insects, rodents, worms and dogs. This could further lead to the transmission of diseases like rabies, plague, typhoid, cholera, hepatitis, AIDS and other communicable diseases through infected syringes. Rag-pickers, who usually sort out the municipal waste, can contract

Villagers in Sambalpur, Odisha, (left) had to leave their land as dumping of BMW led to serious ailments.

HIV, tetanus and TB. Apart from that, hospital staff and those handling the waste can contract infections. Improper disposal of expired drugs can lead to their being retrieved and sold to unsuspecting people, not to mention air, water and soil pollution from improper or defective incineration of BMW. Though there are laws and regulations for safe disposal of BMW, there is poor implementation. Achieving the desired result is nowhere in sight as regulations are ignored by hospitals, dispensaries and other medical set-ups and treated with disdain by regulatory authorities. What do the regulations say? The Biomedical Waste (Management and Handling) Rules, 1998, which was amended in 2003, mandates safe and proper disposal of BMW. Draft of a new rule in 2011 is yet to be notified by the government. These rules are meant for any institution generating BMW. These include hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories and blood banks. They have to take all steps to ensure that such waste is handled without any adverse effect to human health and environment. These rules define the methodology for

Color-coding the waste Yellow Bags Infectious waste, bandages, gauze, cotton or any other objects in contact with body fluids, human body parts, placenta etc

Red Bags

Blue Bags Black Carboy

All types of Plastic waste such glass bottles and broken as catheters, glass articles, outdated & injection discarded syringes, medicines tubings, IV bottles

Needles without syringes, blades, sharps and all metal articles

segregation, packaging, transportation, storage, treatment and disposal. Schedule 1 of the rules defines the categories of biomedical waste, while Schedule 2 lays down the color coding and type of container for disposal (see box above). The regulatory authority is the State Pollution Control Board (SPCB). Every institution generating, collecting, receiving, storing, transporting, treating, disposing and/or handling BMW, when treating more than 1,000 patients per month, is mandated to apply for grant of authorization to the SPCB. Every operator of a BMW facility is also required to seek authorization from them. But these rules are of no use till implementation is taken seriously. IL INDIA LEGAL November 15, 2015

GLOBAL TRENDS/ European Refugees

Traveling in Europeâ&#x20AC;&#x2122;s River of Migrants A team of journos treks with refugees across the continent to chronicle the human dimension of the crisis. An excerpt on the travails of Majid family By Anemona Hartocollis

LIFE ON THE EDGE Ahmad Majid (center), his wife, Jamila, and their family eat a meal at a makeshift detention center at a school in Padborg, Denmark UNI

Syrian Family Overcomes Hardships of War, but Finds Path Blocked in Denmark September 11, 2015

T was the Danes who finally wore the Majid family down.The family had fled war-torn Syria, taken a boat from Turkey to Greece, crawled under a barbed wire fence in Hungary, and slept in fields and on concrete sidewalks. The relatives thought that after so much hardship the trip through Denmark to Sweden would be easy. After all, they had no intention of staying in Denmark. Why would the Danes care if they were just passing through? They were wrong.

November 15, 2015

As the family crossed the Danish border from Flensburg, Germany, recently, the police stopped the train and took all the refugees and migrants off. Ahmad Majid, his brother Farid, their wives, children and other relatives traveling with them were taken to a makeshift detention center at a decommissioned school in Padborg, a truck-stop town of little cottages near the border. At the school, the Danes treated them with an iron fist in a velvet glove. The migrants were given thin foam mattresses, blankets, hot food and balls for the children to play with. But armed police guarded every door, sending a message that the migrants were prisoners there, not free to come and go as in the German shelter where the family had spent a night. The police told them they had a choice: Stay in Denmark and apply for asylum, or return to Germany. But they would not be permitted to cross Denmark to go to Sweden.

he Majids were still undecided about their plans when they got a taste of Danish justice. They were told that before they could go anywhere, all the migrants detained at the former school had to go to a police station for processing. The family was divided into two groups, the two brothers with their wives and children in one, the three young male relatives traveling with them in another. It was the first time they had been divided despite crossing many borders since their flight from Syria. The group with the two brothers was taken by a police van to a station far away, they said later. Ahmad Majid estimated that he and his family had traveled more than 200 kilometers, based on the amount of time they were on the road. They had no idea where they were. Once at the station, they were put in separate cells. When Mr. Majid asked for food for the children, offering 100 euros to pay for it, a police officer gave him sugar cubes, he said, fishing the still-wrapped cubes out of his jacket pocket. The three young men were taken to another police station, also far from the Padborg school, based on the travel time. There they were ordered to strip naked and

When Majid asked for food for children, offering 100 euros to pay for it, a police officer gave him sugar cubes, he said, fishing the still-wrapped cubes out of his jacket pocket. twirl around in front of police officers, they said. Then they were locked up in two cells. Mr. Majid and his brother were shaking with anger by the time the police interviewed them about whether they wanted to seek asylum in Denmark or return to Germany. At that point, they said, the invitation to seek asylum in Denmark seemed insincere, like a bad joke. “Even if Denmark was made of gold, I would not want to stay here, ever,” Farid Majid said he had told the Danish police. Ahmad Majid told the police, “My son now knows the meaning of the word ‘prison,’ because of you.” The police warned that if the Majids came back to Denmark, they would be imprisoned. The young men also rejected the Danish asylum offer. The police took all of them back to the German border. From there, they made their way to the Flensburg train station. We caught up with the Majids at the Flensburg station, as they waited for a train to Hamburg. They had missed the big events at the Padborg school. That morning,300

WHERE THERE IS A WILL (Above) A group of migrants, who were aiming to go to Sweden but were being detained by the police in Denmark, defiantly march on

INDIA LEGAL November 15, 2015

GLOBAL TRENDS/ European Refugees

UNI

GONE WITH THE WIND The collateral damage of the strife in Asia and Africa is loss of home and a way of life for millions

November 15, 2015

refugees had stormed out of the school, into the woods and streets. About half had disappeared into the countryside, and the others had found their way to the highway to Sweden. They blocked traffic as they walked north.

s the Majids were boarding the train for Hamburg, the police back in Denmark were trying to figure out how to deal with the public relations embarrassment of having migrants block the highway and demand to go to Sweden. The Majids got to Hamburg just before midnight and headed for McDonald’s, about the only restaurant open in the train station, to feed the children. On the way, Mr. Majid approached two German police officers and asked where he could turn himself in to ask for asylum in Germany. The officers pointed to a police station 200 meters away. But before they could turn themselves in, Philip Holler, a young law student, approached and asked whether they were refugees. Yes, they said. He said he could show them the way to a shelter for the night. They accepted his offer. Mr. Holler waited

patiently until the children had finished their chicken nuggets. Then he led the exhausted group into the subway and through the darkened Hamburg streets to a hangarlike exposition center that was being used as a shelter for migrants. The shelter's beds were full. The Majids waited about an hour, while the guards looked for another shelter that could take them. It was cold outside. The guards distributed juice, water and blankets, and the Majid adults wrapped the blankets around the children like cocoons and laid them on the sidewalk to sleep. Finally, at about 2:30 a.m., the shelter took them in. The gates closed behind them. Next morning, the Danish police announced that they would no longer block migrants from traveling through Denmark to Sweden and points beyond. As in Budapest a week earlier, when Hungary relented and opened its border to Austria, the migrants had won, at least for now. The police said 3,200 refugees and migrants had entered Denmark recently, overwhelming the ability of the police to deal with them. The Danish about-face came too late for the Majids, who were just relieved to put that country behind them. Yes, their dream had been to go to Sweden, join relatives, and maybe open a bakery or a grocery. But now Germany seemed like the land of opportunity. It had welcomed them and others like them, and its generosity, they had learned, was a rare gift. They would stay here, Ahmad Majid said, and they would thrive. Their journey did not turn out the way they had planned. But he believed it had turned out for the best. He cited the Quran: “Do not hate what befalls you, for it may be good for you.” IL —Courtesy ProPublica

CAMPUS UPDATE

Lecture series by Justice Katju

ustice Markandey Katju will deliver a series of lectures on “Constitutional Jurisprudence” from October 26 to students of the School of Law at Galgotias University in Greater Noida. The lecture series will be continuing for a week. Before being elevated as a judge to the Supreme Court,

Jindal Law School’s conference

indal Global Law School is conducting a two-day conference on “Ethics and Professional Responsibility in the Legal Profession” on

October 31 and November 1. Manan Kumar Mishra, chairman, Bar Council of India, will be the chief guest. Legal luminaries like Indira Jaising, Justice AP Shah and Justice AK Patnaik will be also present. Talks on “Lawyer advertising versus improper solicitation”, “malpractice litigation and disciplinary action”, “lateral movement of lawyers” and “e-data and the impact of technology on client confidentiality” will be presented. Justice AK Patnaik will deliver the valedictory address.

Justice Katju served as the chief justice of the Delhi High Court and the Madras High Court. Students will get the opportunity to interact with him and gather knowledge and understanding of jurisprudence and the constitution, which has undergone significant evolution since its adoption in 1950.

Workshop on labor laws

workshop will be held by the Dr Ram Manohar Lohia National Law University in collaboration with National Labor Law Association (NLLA) on November 23 and 24. It will deal with labor law reforms. NLLA is a forum for the free exchange of ideas that help apply laws in the right perspective. The workshop aims to create an open forum to discuss the industrial relations code and the wage code prepared by the government of India. It will also examine the social, economic and legal issues pertaining to bills being prepared by the ministry of law and their impact on labor management. Topics like

emerging issues and the implications of industrial relations, trade unions and various proposed amendments in existing labor legislations will also be discussed.

NLU Delhi signs MoU with Deakin

ational Law University, Delhi, signed an MoU with Deakin University, Victoria, Australia on October 19, 2015, for fostering academic and institutional collaboration in terms of exchange of students and members of faculty. The MoU was signed by Professor Mike Ewing, Pro

Vice-Chancellor, Deakin University and Professor Ranbir Singh, ViceChancellor, NLU Delhi. Dr GS Bajpai, Registrar and Professor, NLU Delhi, was also present on the occasion. The two institutions are to collaborate on academic events, teaching, training and research. — Compiled by Vijay Patil

November 15, 2015

NO I L OROP HOLDS BARRED DEATH BY HANGING Is it painful? 38

LIZED BETTING: INTING: LEGAat hand? 46 Is it CANVAS FINGERPR New tracking tool 43

UNTOLD

RAMESH MENON:

How politicia STORY OF THE DENG

CORRUPTION BEHIND THE BARS

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UE EPIDEMIC 34

Plus: Ajith Pillaiâ&#x20AC;&#x2122;sns and hospitals duck lega l obligations personal nightmar e

L NDIA L EGAL E INDIAL EGAL NDIA EGA IN `100

30, 2015 September

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INDERJIT BADHWAR, AJITH PILLAI, KALYANI SHANKAR, RAKESH BHATNAGAR:

KKallya yannii SSh Shaank a kaarr on the quota debnka te which has lit ate all political para fire in ties following the Pat ate agitation and ell Bhagwatâ&#x20AC;&#x2122;s pronouncemen t 28

In-depth analysis of the legal, political, ethical, religious dimensions of beef ban 22

RAMESH MENON: Do the r courts eve say sorry?

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STORIES

A M VOHRA: BIKRAM

INDERJIT BADH

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October 31, 2015

Hardik Patel

Mohan Bhagwat

AJITH PILLAI: Big legal bang for

Moneylife

DINESH : SHARMA S Make NDP Act more effective 54

VIPIN PUBBY Defamation turbulence

TAHIR MAHMOD Is Muslim personal law still valid?

MEENA MENON Haji Ali Dispute 50

PLUS:

RAMESH 3-year law degrees?MEN 46 ON: Unending Ram Rahim Singh stalemate Insan: Religion or politics?over 54 NJA C z 12 Italian Marines: Jurisdiction war 66 z Scrap

z Gurmeet

SEEMA SAJEDA GUHA: MOMIN: Nepalâ&#x20AC;&#x2122;s Asserting constituti on Desi righ hits home ts in UK

DINESH SHA Volkswagenâ&#x20AC;&#x2122; RMA: BIKRAM in the ointm s bug VOHRA: ent 72 Is this the way to treat your servants?

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FIGURE

IT OUT India has 3,884 US students. The US has 1,03,895 Indian students, the second highest among foreign students after China’s 1,57,558. About 14,000 people have died in Indian jails in the past 10 years. There are around 98 crore mobile phones in the country at present and 30 crore people avail internet facility. India Post has over 1.5 lakh branches. One in every five Indian adults living in urban cities suffers not only from hypertension but also diabetes. India’s innate fascination with gold continues as Indian households possess 18,000 tonnes of gold—11 per cent of the world stock—worth over $950 billion. This is also around 50 per cent of the country’s GDP in dollar terms. Gold consumption is part of India’s culture and tradition and the country is the world’s largest consumer of gold, followed by China. At least 8 per cent of India’s $329 billion in household savings was held in gold in 2009-10. Large borrowers, who took loans of `10 crore or more, have defaulted on payments to the tune of `47,000 crore, with banks not even pursuing cases to recover over half the amount. Data available with the finance

ministry shows that at least 700 defaulters, who had borrowed `10 crore or more from public-sector banks and cumulatively owe over `26,000 crore, have gone scot-free despite not clearing their dues. India’s annual liver transplant requirement is 25,000 but only 800 are available. Out of the 5,362 listed companies that are required to appoint women directors, only 3,785 firms had complied with the norm by July last. Banks in India total 95,000. India has 31 lakh NGOs. This means we have one NGO for 400 people, as against one policeman for 709 people. India has 15 lakh schools. Between April and July this year, India registered 9,700 cases of atrocities against women. During 2012-15, some 2,060 students dropped out of 16 IITs, and 2,352 students left studies mid-way in NITs. Last four years witnessed some 300 railway mishaps, in which about 370 people were killed. There are 6.5 crore diabetics in India, and, 40,000 legs of diabetics are amputated every year.

—Compiled by Mahesh Trivedi

November 15, 2015

1. After death the doctor. A: To do post-mortem B: Help comes late C: To analyze D: To study the will 2. Temblor. A: Earthquake B: Musical instrument C: Arrow D. Wanderer 3. Paget’s disease. A: Weak eyes B: Irregular heartbeats C: Stomach ailment D: Bone disorder 4. Understood by all. A: Eclectic B: Esoteric C: Exoteric D: Ecclesiastic 5. Which is correct? A: Barefeet exercise B: Barefoot exercise C: Barefeeted exercise D: Barefooted exercise 6. Are we away? A: How far is it? B: Shall we go? C: Are we wrong? D: Do we have a holiday? 7. Elemental. A: Basic B: Strong C: Artificial D: Chemical

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

8. Gynocracy. A: Government by fools B: Government by women C: Government by doctors D: Government by the aged 9. Plural of vortex A: Vortexes B: Same C: Vortices D: Vortexae 10. Zinger. A: Witty remark B: Zero C: Name of a bird D: Expert 11. Martinet. A: Small glass B: Dancer C: Smallest planet D: Disciplinarian 12. Snug as a bug in a rug. A: Uncomfortable B: Cozy C: Sick D: Selfish 13. Cognoscente. A: Common man B: Insult C: Expert D: Illiterate 14. Hair-brained.

A: Foolish B: Intelligent C: Lazy D: Orthodox 15. Yob. A: Elderly person B: Neighbour C: Hooligan D: Slap 16. A cat lover. A: Cagophilist B: Cynophilist C: Ailurophile D: Kittymane 17. A little pot is soon …. A: broken B: hot C: lost D: forgotten 18. Contemptuous. A. Contemptible B. Disrespectful C. Ill-tempered D. Illegal 19. Smirk. A: Affected smile B: Contemptuous smile C: Smug smile D: Fixed grin 20. In your dreams! A: It will never happen! B: May your dream come true! C: I love you! D: You are kidding!

ANSWERS

1. Help comes late 2. Earthquake 3. Bone disorder 4. Exoteric 5. Barefoot exercise 6. Shall we go? 7. Basic 8. Government by women 9. Vortices 10. Witty remark 11. Disciplinarian 12. Cozy 13. Expert 14. Foolish 15. Hooligan 16. Ailurophile 17. hot 18. Disrespectful 19. Smug smile 20. It will never happen!

Y L D R WO ISE

SCORES

0 to 7 correct—You need to do this more often. 8 to 12 correct—Good, get the scrabble board out. Above 12—Bravo! Keep it up! textdoctor2@gmail.com

INDIA LEGAL September 15, 2015

PEOPLE / Tribal Tales

BASIC INSTINCT A Turkana woman carrying a child stands by a hut in Napak village in northwestern Kenya.

BREAK TIME A Reang tribal in a traditional attire and ornaments in a relaxed mood near Agartala in Tripura.

CULTURE SHOCK Raoni Metuktire, a leader of the Brazilian indigenous Kayapo people, arrives at Hotel de Lassay, residence of French National Assembly Speaker, in Paris.

PLUMES AND THE MAN An indigenous man from the Tabajara tribe at the Tocantins river in Brazil.

LIFE ON THE OTHER SIDE Members of the Mashco Piro tribe spotted by a group of travelers from across the Alto Madre de Dios river in the Manu National Park, in the Amazon basin of southeastern Peru. The picture is taken through a bird scope. â&#x20AC;&#x201D; Compiled by Kh Manglembi Devi Photos: UNI

November 15, 2015

RNI No. UPENG/2007/25763

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