India Legal - 31 August, 2014

NDIA EGAL I L Who shot the collegium?

Sex and the judge

Phoolan: Killer’s comeuppance

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August 31, 2014

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STORIES THAT COUNT

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

WHEN MAN TURNS MOUNTAINS INTO MOLEHILLS

E

VER since 1986, when green felling was banned in Himachal Pradesh in a desperate bid to preserve the forests and ecology of India’s hill state, home to the Dalai Lama and to the departed Sikh chronicler Khushwant Singh, birthplace of Ruskin Bond and muse to some of Kipling’s finest verse, people who visit the state tut-tut sanctimoniously about the environmental havoc that continues to take a ruthless toll of what are loosely called the Shimla Hills.

Despite strict rules and ban on green felling, the forest cover in Himachal has shown a piffling increase of 2 square kilometers!

According to the Forest Survey of India report of 2011, out of the state’s geographical area of 55,673 square kilometers, 3,224 square kilometers is under dense forests, 6,381 square kilometers under moderately dense forests and 5,074 square kilometers under open forests. But these statistics barely tell the story of the human greed and depredation, which are reducing the grand mountains into molehills.

Take for example the lower Shimla Hills—the Dharampur-Jagjitnagar-Kasauli-Solan area of Shivaliks—averaging a height of about 500 feet, where nestle Sanawar School, Subathu and Dagshai cantonments. The Himachal cabinet recently made amendments to Rule 38-A (a)(2) of the Himachal Pradesh Tenancy and Land Reform Rules, 1975 (Section 118), providing that for all purposes, other than for a dwelling unit or shop, any non-agriculturist seeking to acquire land with permission under the act shall need an essentiality certificate (EC) from the concerned department that will certify his eligibility.

The ostensible purpose was to stop speculators

Photos: Inderjit Badhwar

INDIA LEGAL August 31, 2014

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LETTER FROM THE EDITOR

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August 31, 2014

from outside from pillaging the hills. Some years ago, Lt Col Jiwan Sharotri rang alarm bells that resonated in the hearts of everyone who has been eyewitness to the gruesome reality: “The fragile ecology of Kasauli hills is being destroyed with impunity. After damaging the peripheral hill slopes and depleting the greenery by allowing unrestricted construction activity, the state government allowed construction of multiple cottages with even borewell facilities‌â€?

The Kasauli-Jagjitnagar hills are ecologically fragile and starved of water except during the monsoons. But the HP government is turning a blind eye to predatory developers like DLF, who are boring into the hills and depleting the water table that feeds the aquifers from which farmers draw water. The hills are withering before our very eyes and nobody gives a damn.

These photographs illustrate more graphically than any statistical or government reports the plunder that is occurring in broad daylight, on the main and arterial roads right under the administrative nose of Chief Minister Vir Bhadra Singh.

See and weep. Does anybody care?

editor@indialegalonline.com INDIA LEGAL August 31, 2014

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AUGUST 31, 2014 VOLUME. VII

ISSUE. 24

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LEAD

Old enough to kill, too young to be hanged?

18

As the government introduces a juvenile bill to reduce the age for trial, the debate on the maturity level of teenagers heats up. MEHA MATHUR probes whether a serious offender should be treated like an adult

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August 31, 2014

SUPREME COURT

This case doesn’t rest

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Government, judiciary are embroiled in an ugly war over judges’ appointments. RAKESH BHATNAGAR analyzes the genesis of the collegium controversy THE NATION

NDA-II = UPA-II First, it brought out an unimaginative budget, Now, in quick succession it’s reintroducing bills that it had opposed tooth and nail when it was out of power. ANITA KATYAL questions the tall promises of change that the BJP had made during the election campaign

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ALSO

Let his work speak 26 for him

THE NATION

Are Sonia and Rahul guilty of embezzlement in the National Herald case?.................34

NV SUBRAMANIAN writes that in remaining silent on many issues the prime minister is only maintaining the dignity of the office CRIME AVIATION

Flight to the finish

28

The crash of MH-17 flight over Ukraine brings into focus the need for a monitoring agency to police the skies. SHOBHA JOHN explores several scenarios

GLOBAL TRENDS

A case of oxymoron

31

Having masterminded the bloodbath in Mumbai and spewed venom against India, Hafiz Saeed is showing concern about terrorism in Pakistan.

VISHWAS KUMAR explores why he is so keen about an image makeover ENVIRONMENT

The black truth

Closure to a caste clash

She lived amid violence and met a violent end.

Justice is finally delivered in the Phoolan Devi murder case, as one person is convicted.

RAMESH MENON reports PHOTO ESSAY

A vision for life

36 46

PRAVIN PAREKH, president, Supreme Court Bar Association, comments on the charges of sexual harassment against a judge in Madhya Pradesh

Email forensic tools to pin down criminals......….…52 How Pune corporation and builders cheat home buyers of a basic necessity, water……..…55 After a long spell of icy relations, India, US come close again, moved by pragmatism….....….......68 A perspicacious book on the Israel-Palestine conflict...........................72

REGULARS

Objection, your honor!

Increasing instances of violence against Dalits.................50

58

A group of spirited visually-challenged people have made the best of whatever life has offered them. RAMESH MENON and SIPRA DAS provide an insight into their world

VISHWAS KUMAR investigates how corporates, in connivance with the center and states, are indulging in illegal mining

CONTROVERSY

43

Why delay in death sentences is a ground for commuting of sentences..................40

Letter from the Editor …............ .........................................................3 Letters…..............................................................................................8 Quote-Unquote ...............… ................................................................9 Ringside ..........................… ..............................................................10 Supreme Court..................................................................................16 Briefs .................................................................................................75 Consumer Watch ..............................................................................76 Is That Legal?....................................................................................78 Wordly-wise .......................................................................................81 People ...............................................................................................82 Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA INDIA LEGAL August 31, 2014

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LETTERS Masochistic instinct DOES India need every person to get raped before the country’s consciousness receives a jolt? Should every girl or boy deconstruct the idea of “honor” by losing it? Is honor a tangible object that can be snatched, transferred or played with?

The recent cases of a six-year-old being raped in Bangalore or the HRD ministry receiving two complaints of sexual harassment against the chairman of National Institute of Open Schooling have opened up a plethora of discourses about “rape management”.

Uttar Pradesh chief minister Akhilesh Yadav goes as far as rebuking a journalist for her queries about rape, “Aapko toh khatra nahin hua?” (it’s not as if you faced any danger?) Such statements reveal how rape has become a “natural” idea in the Indian subcontinent. If it happens every day, what’s new about it?

It’s brutally ironical, but rape seems

to have become a cultural ideal in our nation. The representation of rape in the media shows how common the act has become. From the coverage and tone of articles to the construction of sentences, news about rapes sound astonishingly similar day in and day out. It exposes the elitism that each one of us harbors.

Why is it that an urban middle class woman’s rape finds headlines while a Dalit woman’s assault may never even get covered?

As an act, rape is more than sexual gratification, more than forceful penetration as the IPC wants to put it.

Rape is probably the masochistic instinct of dominating the other, a way to assert individual authority. The naturalization, internalization and representation of rape reveals how deeply we have accepted it as a cultural dogma.

Hansa Malhotra, Pune

Unveiling truth I am happy that your magazine is taking up issues concerning Muslims and presenting insightful views on them. The story, Growing Distrust, in the August 15, 2014 issue was worth a read. It must be noted that distrust begets distrust. The articles expose the malafide intentions of the law enforcing agencies.

Mohd Waqar, Delhi

Working on an agenda The entire revelations by Markandey Katju smacks of opportunism, armed with an agenda and seeking media attention. Why did Katju not disclose details about the rampant corruption in judiciary immediately after he retired as judge of the Supreme Court in September 2011? Why is he raking up the issue when the judiciary is locked in an identity battle with the executive. Does he want to curry favor with the Modi government?

Biplab Chowdhury, Noida

Testing times www.facebook.com/indialegalmagazine

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August 31, 2014

Amit Shah’s election as the BJP president not only showcases Modi’s tightfisted control over the party and the government but also reflects a generational shift in the politics of BJP. (Good Cop, Bad Cop, August 15, 2014).

Political observers will now constantly compare the performance of the Modi-Shah combo with the Vajpayee-Advani team. As a result, the burden of expectations will be much more on them. And comparisons can be irritating and even telling at times!

Amit Khurana, Gurgaon

Please email your letters to: editor@indialegalonline.com Or write to us at: India Legal, ENC Network, A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) - 201309

QUOTE-UNQUOTE

“Politics is not a part-time job... A leader must have fire in his belly.”

—Former external affairs minister K Natwar Singh on Rahul’s ability to become a leader

“I do not know whether it happens in any other country where you have to keep proving that you are from that country.”

—Sania Mirza on observations that she was no longer an Indian after marrying cricketer Shoaib Malik of Pakistan

“It doesn’t matter how many members the Judicial Appointments Commission (JAC) has as long as the eminence of judiciary is maintained; they must be in a majority.”

—Senior Supreme Court lawyer Soli Sorabjee on setting up of JAC replacing the collegium system

“Cycle to work, it is healthier, much more economical, environment-friendly too, and widely done in foreign countries.”

—Chief Justice RM Lodha offering a solution to acute parking problems inside the Supreme Court

“I realised in Sri Lanka that my dream of playing in a World Cup was a bridge too far.”

—South African cricketer Jacques Kallis after retiring from all forms of international cricket

“I will write my own book and then you will come to know everything. The only way truth will come out is if I write. I am serious about it and I will be writing.”

—Sonia Gandhi on Natwar Singh’s claim in his book that she did not accept the PM’s post in 2004 due to Rahul Gandhi

“We will not be able to bring black money from Switzerland in our lifetime.”

—BJP MP Nishikant Dubey while speaking on the Finance Bill in the Lok Sabha

“Had I been the dictator of India, I would have introduced the Gita and the Mahabharata in Class I. That is the way you learn how to live life.”

—Supreme Court Justice AR Dave prescribing the ancient system of education in India

“All Indians in Hindustan are Hindus.... So you don’t have to make it a Hindu nation.”

—Goa Deputy Chief Minister Francis D'Souza INDIA LEGAL August 31, 2014

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VERDICT “As my sufferings mounted I soon realized that there were two ways in which I could respond to my situation—either to react with bitterness or seek to transform the suffering into a creative force. I decided to follow the latter course.”

— Martin Luther King Jr

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August 31, 2014

SUPREME COURT/ collegium battle

War over Judges markandey katju’s accusations have served as a handy excuse for denigrating the judiciary and helping the Modi government to push the twin bills in parliament for scrapping the collegium system

By Rakesh Bhatnagar

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HE controversy surrounding Gopal Subramanium exposed the frail framework based on which the center decides the integrity and merit of a judge recommended by the collegiums for high courts and the Supreme Court. The confidential inputs were given by the CBI and the secret information was fed by the Intelligence Bureau to which the Right to Information does not apply.

While rejecting Subramanium’s name for the post and damning his reputation, the government failed to point out that as additional solicitor general in 2007, he had filed an affidavit before the Supreme Court raising doubt on the historical existence of Lord Rama. The government had to withdraw this affidavit to quell an uproar led by the BJP whose antipathy to Subramanium is well known.

Ironically, total reliance on the “premier” investigating agency and IB, which is not part of an investigating agency recognized by INDIA LEGAL August 31, 2014

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SUPREME COURT/ collegium battle

The bar’s viewpoint Pravin H Parekh, the president of the Supreme Court Bar Association on the slugfest between the executive and judiciary over judges’ appointment.

Excerpts from his observations: WHEN I was enrolled as an advocate in 1965, the general opinion amongst the people at large and particularly with the legal fraternity was that the Supreme Court, high court and district court judges were hundred percent honest. People had boundless faith in the judiciary. However today things are different.

There are serious allegations of corruption against some of the judges of all courts. In two decades, the consensus in the society on collegiums making judicial appointments has gone down and the voices which helped in creating the law in Second Judges Case reported in (1993)4 SCC 441 and Third Judges Case reported in (1998) 7 SCC 739 have some reservation.

By and large, the collegium appoints good judges but there were many instances of appointments of those who should not have been appointed as judges and many good judges who deserve to be appointed but have not been appointed.

The collegium system has its genesis in a series of three judgments that is now known as the “Judges Cases”. SP Gupta vs Union of India reported in 1981 Supp SCC 87 (December 30, 1981) held that the “primacy”

the Code of Criminal Procedure, goes against the fundamental principle of jurisprudence that until a person is held guilty by a court of law, he is innocent. Subramanium’s anguish was understood and his withdrawal of consent sent to the Chief Justice of India (CJI) RM Lodha came as a shot in the arm for the Modi government. The CJI-led collegium, which had recommended his name for the Supreme Court judge, was left with no option but to accept the government’s stand.

If the investigating agencies were so well equipped to determine the antecedents of an incumbent for the post of a high court or Supreme Court judge why they did they fail in finding facts about scores of judges manning the higher judiciary who are now alleged to be “black sheep”?

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August 31, 2014

is of the executive authorities. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years. In fact prior to SP Gupta case, the government never asserted its primacy, but by and large, the judiciary accommodated the views of the government some cases.

On October 6, 1993, came a nine-judge bench decision in the case of Supreme Court Advocates-on Record Association vs Union of

F

requent complaints keep pouring in alleging corruption in the higher judiciary. To give them due weight, Markandey Katju, a former judge of the Supreme Court who is now the Chairman of the Press Council of India, also keeps updating his blogs, adding more dimension to the corruption among judges and accusing some former chief justices of India of being soft on venal judges.

Katju retired in 2011 as a supreme court judge and has now been making rapidfire revelations which could land a person of lesser stature in the dock on defamation charges and damage the people’s confidence in the system.

However, these few instances have energized the Narendra Modi government to hasten the requisite constitutional amendment

India reported in (1993) 4 SCC 441 as the “Second Judges Case”. This was what ushered in the collegium system... The majority held that the chief justice of India (CJI) has the “primal” role in such appointments. It overturned the SP Gupta judgment, saying: “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter…”

For the next five years, there was some confusion on the roles of the CJI and the two judges in judicial appointments and transfers.

In many cases, the CJIs took unilateral decisions without consulting two colleagues.

In 1998, the President of India made a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of high court judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. The nine judge bench of Supreme Court unanimously laid down nine guidelines for the functioning of the collegium for appointments/transfers. This came to be the present form of the collegiums. Besides,

the nine-judge bench judgment in In Re: Appointment & Transfer Of Judges reported in (1998) 7 SCC 739 dated October 28, 1998, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”. The Supreme Court in this judgment recommended that the collegiums making the appointments to it should consist of the chief justice and four seniormost judges, the opinion of all the judges should be in writing, if majority of the collegiums is against the appointment of any person he should not be appointed.

The ratio in the “Third Judges Case” has been followed since then for appointment of judges. However, the governments at the center for the last many years have favoured changing this system and creating a commission consisting of judges and non judges for the appointment of judges to higher judiciary.

The inherent presumption and expectation of the Second and Third Judges Case were that the collegiums will select the best talents to occupy the position of the Supreme Court and high court judges, and that appointments will be on merits and not on irrelevant and extraneous considerations...

With this view the Constitution (120th

and constitute a commission for performing the job earlier being done by the collegiums since 1993.

When Chief Justice Lodha fired his first salvo, taking umbrage at what he described was the undermining of the independence of the judiciary and the collegium system, Law Minister Ravi Shankar Prasad precipitously withdrew the Judicial Appointments Bill 2013, moved by the UPA government, in the Rajya Sabha.

Prasad then moved two bills in the Lok Sabha where the BJP and its like-minded parties have a sound majority. These bills are National Judicial Appointments Commission Bill (NJAC), 2014, and the Constitution (121st Amendment) Bill.

While the Constitutional Amendment Bill

Amendment) Bill, 2013 (hereinafter, “Constitution Amendment Bill”) was passed by the upper house of parliament, the Rajya Sabha, on September 5, 2013. The Constitution Amendment Bill sought to replace the collegium with a Judicial Appointments Commission. However, this bill lapsed.

All these years I was always hoping that the judges in the collegiums should see the writing on the wall that if they do not use this power purely on merit and nothing but the merit, some day power will be taken away by parliament.

I can quote a large number of sitting and retired judges of the Supreme Court criticizing the appointments and non-appointments by the collegiums.

Even for discussions on the present bill, there have been no consultation with the elected representatives of the Supreme Court Bar Association and it is very essential that the present government does it.

The question is not capable of easy solution but one thing on which there is almost unanimity amongst members of the Bar, Bench and Civil Society is that the present system requires modification.

(For full text visit www.indialegalonline.com)

scraps the collegium system and establishes a six-member body for the appointment of judges, the NJAC Bill lays down the procedure to be followed for appointment and transfer of judges. The CJI will head the commission and two seniormost judges of the apex court, two “eminent personalities” and the law minister will comprise the panel.

T

he composition of NJAC can be modified by parliament by an ordinary law.

Second, the independence and impartiality of the proposed commission is feared to be undermined by its secretariat which is proposed to be a department of the government.

Moreover, the expenses, salaries, allowance of the JAC would not be charged to the Consolidated Fund of India but will be dependent INDIA LEGAL August 31, 2014

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SUPREME COURT/ collegium battle

One of Katju’s blogs says telephone lines of some corrupt judges were tapped. This isn’t possible without the center’s aid. If the chief justices ignored his warnings and proceeded with the elevation or confirmation of judges, what were the home ministry and PMO doing?

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August 31, 2014

on the budgetary allocation by the FM. However, all was not hunky dory before the collegium system came into being. Corruption in judges’ appointments did exist. The Law Commission in a report has already mentioned the appointment of “Uncle Judges” in high courts while recommending that judges, whose kith and kin are practising should not be appointed in the same high court.

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hen on the Law Day, a bench of the then Justices Katju and Gyan Sudha Misra passed a judgment on November 26, 2010 in which Katju went to the extent of observing that “a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity”. Incidentally, Katju belongs to Allahabad.

“The wards or other relatives of the judge(s) who used to practise in the same court become multi-millionaires: have huge bank balances, luxurious cars, huge houses and enjoy luxurious life. The High Court really needs some house cleaning (both Allahabad

and Lucknow Bench) and we request Chief Justice to do the needful including recommending transfers of the incorrigibles," the Katju-Misra bench said.

Soon thereafter, the Allahabad High Court at its “full court” meeting took serious exception to such maligning observations and consequently it decided to file an application in the apex court praying for expunging such objectionable remarks.

Later, the Katju-Misra bench clarified its earlier order and stressed there are “excellent judges” too in high courts who are working hard and doing their duty honestly. The judges also stated they had not tarnished everyone with the same brush. “It is time for introspection rather than reaction,” they added.

However, the malaise that man-managed institutions inherit continue to threaten the foundations of an independent judicial system in India. Except stray instances like now when a former judge is regularly revealing the goings-on in the exclusive club of the collegium, the mechanism flourished under a

thick pall of secrecy.

To say that the executive has little say in the appointment of judges would be a ridiculous proposition as the political class was often seen as being up in arms on the issue of removal of a judge on charges of corruption.

Also caste, class and religion factors do play a role in approving the selection of a judge made by the collegium system.

One of Katju’s blog says that the telephone lines of certain judges he thought were corrupt had been tapped. The wire-tapping isn’t possible without the government’s aid. The judiciary isn’t equipped with its own investigation tools. If the various CJIs ignored his warnings and proceeded with either elevation or confirmation of judges, what were the home ministry and the prime minister’s office doing?

T

he downfall of the collegium system started with stiff-necked judges diligently keeping the institution away from the glare of the Right to Information, a law which was created after a apex court judgment in 2005.

It’s worthwhile recalling a proposal mooted by the Committee on Judicial Accountability (a voluntary body of some retired judges and like-minded lawyers) for setting up a full-time and independent body called the Judicial Appointments Commission (JAC) for the selection of judges to high courts and the Supreme Court.

Noted lawyer Prashant Bhushan, who founded this committee, says such a body could be constituted from among retired judges or “other eminent persons”. He said the collegium for the selection of chairman of the proposed body should comprise all judges of the top court and high courts.

The two members would be selected by judges while a third member by the union cabinet; a fourth by a collegium of the leaders of opposition of the two houses of parliament, along with the speaker of the Lok Sabha; a

fifth member by a collegium of CEC, CAG and CVC. Bhushan says each of these members of the JAC would have tenure of five years and would thus be independent of the government as well as the sitting judiciary. This body would be mandated to function transparently and would have to publish the names of the persons shortlisted for appointment for the information and comments of the people, before the final selection.

Being a full-time body, it would also lay down the criteria for selection and would be mandated to go about its task in a structured and rational manner.

The efficacy of the new bills piloted by the Modi government would be known only after many more seasons.

The Modi government’s anxiety for replacing the collegium system is understandable.

Against the sanctioned strength of 906 judges, there’s a deficit of 206 judges in the high courts. Of these many judges, some would naturally climb the ladder up to the Supreme Court. But the motive, observers suspect, is to increase the role of executive Big Brother in judicial appointments. IL

When CJI Lodha objected to the undermining of the independence of the judiciary and the collegium system, Law Minister Ravi Shankar Prasad withdrew the Judicial Appointments Bill 2013 in the Rajya Sabha. He then moved two bills in the Lok Sabha.

INDIA LEGAL August 31, 2014

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SUPREME COURT

Question of law

Y

ou can’t have your cake and eat it too. That was the message the apex court sought to give while questioning the center’s argument that tribunals were set up so that experts could settle disputes linked with specific domain knowledge, what judges can’t claim to have.

Taking umbrage at the logic, a five-judge bench pointed out if that was the case why was the center always rushing to seek help from the judiciary every time there was a problem with tribunals.

The bench was responding to a PIL filed by the Madras Bar Association, which had questioned the National Tax Tribunal Act. It objected to tribunals judging on legal aspects of taxation through chartered accountants and company secretaries and said that was the sole prerogative of the courts. It also pointed out that high courts were being slighted, as appeals against tribunals were heard only in the apex court. The bench reserved its ruling.

Illustrations: Aruna

Clean chit to babus

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In public interest

C

oncerned that Delhi was without a government for the last six months, the apex court told Lieutenant Governor Najeeb Jung that he needed to grope for a government or go for fresh elections within five weeks.

Observing that an assembly in suspended animation wasn’t doing anything in the public interest, a five-judge bench wondered what would be its reaction in case a Delhiite approached the apex court saying that MLAs were being paid salaries from the public exchequer but there was no work for them. It wanted the authorities to arrive at a decision.

The bench was reacting to a PIL filed by Aam Aadmi Party that wanted the Jung to dissolve the assembly. It deferred the hearing for a later date.

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August 31, 2014

hould babus be insulated from judicial proceedings unless permitted by the center or should they be treated as any other ordinary citizens in the eyes of the law, is an issue that has been taken up by the apex court several times.

In a latest stand, the court said that there was nothing wrong in Section 19 of the Prevention of Corruption Act that granted immunity to public servants in corruption cases, unless approved by a competent authority. It however held that the concerned authority, while granting the go ahead, would have to ensure that a public servant is not subjected to judicial proceedings needlessly and at the same time the principle of probity in public life is upheld.

Error of judgment

I

t is a gaffe that the apex court would sooner forget. A contempt court notice issued for the Hindutva leader Giriraj Kishore was not served on him for two decades.

And the court was not even aware that Kishore had passed away in July this year while dropping contempt charges. It only cited his old age and the delay in serving notice for ending the matter.

Kishore was accused of contempt in a PIL filed in the apex court on April 12, 1994, for his allegedly demeaning remarks against it in the Ayodhya controversy. Taking cognizance of the remarks published in some publications, the court summoned him on May 6, 1994. However, on March 25

this year, Kishore’s counsel Pallav Sisodia appraised the court that no notice was handed over to his client.

Kishore did appear on March 26, but the judgment was reserved due to his poor health.

Justice for all

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here is need to fast-track all categories of trials in India and not just criminal cases against parliamentarians, and for that a competent criminal justice delivery system is the need of the hour, observed a three-judge bench.

Reacting to the Modi government asking for speedy trial of criminal cases against lawmakers, the bench stated that one set of cases couldn’t be accorded priority at the expense of others, which too needed quick disposal. Even if criminal cases against MPs were accorded importance, inadequate manpower and poor infrastructure in lower courts would lead to a situation where other cases do not get any attention, the bench pointed out. It also referred to the reality that special courts are eating into the limited manpower of other courts, thus resulting in cases getting inordinately delayed.

The bench asked Attorney General

Mukul Rohatgi to come up with ideas regarding fast tracking trials and the criminal justice system, the need to have additional courts, and toning up the judicial infrastructure after deliberating with state governments.

Making an exception DOWRY cases can be trashed if there is “unquestionable” compromise between the husband and the wife, even if the offense under Section 498A and Section 4 of the Dowry Prohibition Act does not deserve any settlement, the apex court said. A two-judge bench premised its observation on the logic that such offenses are personal in nature and do not impact the society at large, unlike other crimes like murder and rape, which are non-negotiable.

The bench was dealing with a dowry case, wherein the Madhya Pradesh High Court had convicted a man. But the couple arrived at a mutual settlement in the apex court, which closed the case thereafter.

SC gets new judges FOUR judges will join the Supreme Court following a warrant of appointments by President Pranab Mukherjee.

Senior Advocate UU Lalit, Justice PC Pant, Justice AM Sapre and Justice R Bhanumathi were selected by the collegium last month.

Vaccine woes THE apex court took a stern view of the adverse impact of the clinical trials of HPV vaccine—meant to prevent cervical cancer in women—introduced in Andhra Pradesh and Gujarat. The vaccine led to several deaths of minor girls in these states. While issuing notice to both the states on a PIL that wanted the vaccines to be banned, the court wanted the center and the states to answer a) whether the Drug Controller General of India and the ICMR had followed proper procedures before introducing the vaccine; b) what action was taken by the states after the parliamentary committee submitted the report in August; c) the reasons behind the deaths; d) whether the use of vaccine was monitored by the center and the states, etc and fixed the hearing for October 28, 2014.

INDIA LEGAL August 31, 2014

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LEAD/ juvenile justice

What is the age of INNOCENCE?

a new juvenile bill has reduced the juvenile age to 16 in case of serious crimes. but in the process, it has stirred a hornet’s nest

By Meha Mathur Dear kindly Sergeant Krupke, You gotta understand, It’s just our bringin’ up-ke That gets us out of hand…

Gee, Officer Krupke, we’re very upset; We never had the love that ev'ry child oughta get.

We ain’t no delinquents, We’re misunderstood.

Deep down inside us there is good!

Officer Krupke, you’re really a square; This boy don’t need a judge, he needs an analyst’s care!

It’s just his neurosis that oughta be curbed.

He’s psychologic’ly disturbed!...

Hey, I’m depraved on account I’m deprived.

— From West Side Story

CELLULOID SENSIBILITIES Scene from the Hollywood classic

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August 31, 2014

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HESE are lines from a street gang of American delinquents who are poking fun at a legal system that blames society rather than the juvenile criminals for violence. As Indian society today grapples with the challenge of juvenile criminals that the western society has been facing for many years now, the big question is, should deprivation be a justification for depravation? Or should a serious crime, which has perhaps ruined a life, be treated with the same yardstick, irrespective of age, social or economic background?

On August 6, a day when a group of five juveniles mercilessly stabbed a 20-year-old in a Delhi market, the government approved the Juvenile Justice (Care and protection of Children) Bill, 2014. The bill will, if passed, treat minors older than 16 as adults if they are involved in serious offenses like rape and murder, and try them in courts as adults.

Earlier, 16 years was the juvenile threshold in India, but the Juvenile Justice Act, 2000, amended it to 18 years in conformity with UN laws.

The demand for reducing the upper age limit for juveniles has been gathering steam ever since the gruesome rape and murder of Nirbhaya in New Delhi in December 2012.

Of the five accused, the juvenile among them was alleged to be the most brutal and had inflicted grievous injuries on the 23-year-old physiotherapy student. In the Shakti Mills rape of a journalist in Mumbai in 2013, again a juvenile was involved. Further, in the murder of a 24-year-old three years back in Chandigarh, it was again three juveniles who were involved. And on April 22 this year, a local court convicted all of them, now 20 years old.

ARE THEY ADULTS? These incidents shook society and made us question why 18 should be the cut-off year for being called a juvenile. Can a 17-and-a-halfyear-old then get away with most grotesque crime because of this age immunity? Even the Supreme Court questioned this aspect a few weeks ago. Minister for Women and

“Why are we obsessed with the chronological age? We have women who enter puberty at nine now. Are we not supposed to bring down the juvenile and adult age too?”

— DR TULSI PATEL, professor of Sociology at the Delhi School of Economics

Child Development Maneka Gandhi too demanded that juveniles accused of gruesome crimes should be tried as adults.

However, what should have got society’s overarching consensus has instead, became a subject of debate, as journalists, activists and lawyers feel that at 16, an individual is not mature and can’t fully comprehend the implications of his actions. Also, the focus should be on reforms, not retributive justice.

Several former judges of the Juvenile Justice Board (JJB) have also asked how, in the absence of specific guidelines, the mental maturity of an offender can be ascertained.

Others feel the decision to amend the juvenile limit is not in sync with the recommendations of the Justice J S Verma Committee, which had said that resetting the age of juvenility was “unviable”.

“Hanging to death a juvenile is really a shortcut that might make the public feel better for a few minutes, but it does not solve the issue at hand. Retribution is no solution. We cannot exclude the possibility that the juvenile convict can be reformed. It’s not necessary that he will repeat a crime he committed at the age of sixteen or fourteen,” writes Palash K Mehrotra, author of Butterfly Generation, in Mail Today.

Then, there’s the plea that most of these offenders come from extremely deprived backgrounds, and grew up witnessing violence at close quarters. Aparna Ravi, a senior researcher at the Centre for Law and Policy Research, writes in her piece, Child and Punishment in The Indian Express: “The purpose of juvenile justice system is not to establish the guilt of the alleged offender, but to look into the underlying social causes for the alleged crime, with the aim of rehabilitating the juvenile offender.”

She cautions: “While the reaction to the Delhi gang rape and its aftermath is INDIA LEGAL August 31, 2014

19

LEAD/ juvenile justice

Juvenile Crimes, 2013 Findings of the National Crime Records Bureau report, “Crimes in India, 2013” The juveniles in conflict with law (IPC crimes) in 2013 have increased by 13.6 percent over 2012 As against 27,936 IPC crimes by juveniles during 2012, 31,725 cases were registered in 2013 The highest increase in the crimes by juvenile was observed under the head “Assault on women with intent to outrage her modesty” (132.3 percent), followed by “Insult to the modesty of women” (70.5 percent) and rape (60.3 percent) Out of the total juveniles involved in various crimes, 8,392 were illiterate and 13,984 had education up to primary level. These two categories together accounted for 51.9 percent of the total juveniles arrested during the year 2013 Children living with parents (35,244) accounted for 81.0 percent of the total juveniles apprehended. The share of homeless children (2,462) who were involved in various crimes was just 5.7 percent A large number of juveniles (50.2 percent) belonged to poor families, whose annual income was up to `25,000. The percentage of juveniles in other income brackets was: between `25,000 and `50,000, 27.3 between `50,000 and `2,00,000, 20.2 between `2 lakh to `3 lakh, 1.4

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August 31, 2014

CHILDHOOD GONE WRONG A group of juveniles in Jharkhand, facing rape charges UNI

understandable, it is important that a single extreme case does not form the locus for law reform.” She takes a phrase—“moral panic” —that Elizabeth Scott and Laurence Steinberg have used in their book Rethinking Juvenile Justice, to describe the “escalating pattern of alarm in response to a perceived social threat.”

WORLDWIDE CONCERN There is no doubt that juvenile crimes need to be addressed as these are increasing and are not one-off cases. According to the National Crime Records Bureau, there was a 13.6 percent increase in juvenile crimes from 2012 to 2013 (31,725 cases in 2013 as against 27,936 cases in 2012). Rape cases increased by 60.3 per cent during the same period. (See box item: Juvenile Crimes, 2013).

The causes of delinquency—poverty, deprivation, broken homes, overexposure, male domination, pathological disorders — are subject matter of psychological and sociological study in themselves. But poverty and deprivation can’t be treated as reasons for giving immunity to an offender. World over, there’s the realization, as Charles D Stimson, author of Adult Time for Adult Crimes: Life

Without Parole for Juvenile Killers and Violent Teens, says in an article: “Some juveniles commit crimes so horrific in their depravity that justice could not be carried out in the juvenile system.”

Even the US is grappling with the dilemma of punishing such juvenile criminals.

Despite the US Supreme Court voting 5-4 to outlaw the death penalty for juvenile criminals in March 2005, calling it “unconstitutionally criminal”, 19 states still allow their trial and conviction as adults. Among the cases that shook the country were: Sarah Johnson of Idaho, who shot down her parents in 2003 because they took firm action against her for spending a night with her boy friend.

Jordon Brown killed his father’s eightmonth-pregnant girlfriend in Pennsylvania; the charges were initially filed in the adult court, but later shifted to a juvenile court, despite the state law, under which any person above 10 has to be tried as an adult if he kills.

TJ Lane, who killed his classmates in his Ohio school, and faces charges as adult.

In China, which faces increasing cases of juvenile crimes, especially rape, a court sentenced a 17-year-old boy, son of a famous

singer, to 10 years in prison for his involvement in a gang rape in Beijing, to make an example out of him.

CALENDAR-STRUCK The key question being raised in India is, why are we obsessed with the chronological age? Dr Tulsi Patel, professor of sociology at the Delhi School of Economics, wonders: “What is so sacrosanct about the calendar?

We have women who enter puberty at nine now. Are we not supposed to bring down the juvenile and adult age too? We have to see how hormones are developing in an individual. The calendar doesn’t decide hormones.”

Clinical psychologist and counselor Dr Aruna Broota says that each case is different and there should be a psychiatric evaluation of the mental functioning of the person. Like Dr Patel, she says that a person’s maturity should be determined by his hormonal development and not by his bone age. “We expect all sorts of social compliance from the same 15-year-old child. He should study on his own, help his father, and accompany his grandparents for social calls, so why don’t we expect that the child will also develop sexual understanding? Why do we brush aside that subject by saying ‘bachha hai’? We need to look at emotional capabilities. What an 18year-old could do, a 15-year-old is doing.”

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he risks of over-dependence on juvenile justice also cannot be ignored. Dr Patel says that at the back of the mind of a juvenile criminal is the awareness that he will go scot-free after three years despite the gravity of the crime. A sense of fear needs to be instilled, she says, which can only be done with harsher punishment.

Also, juvenile homes are no places for reform. A teen gets exposed to the worst forms of social behavior and crimes there (including sodomy, gang wars and drug abuse) and comes out as a hardened criminal. Worse, the police are supposed to destroy the records of the juvenile after the completion of the sentence. So, imagine the danger of the juvenile rapist in the Nirbhaya case roaming in the city once again after three years, unidentified.

Considering the sensitivity of this issue,

any legal step would be really effective if we go in for a jury system to examine the cases involving teenagers. A senior editor suggested that each case needs to be looked at differently as it cannot be generally assumed that all those under 18 did not deserve to be punished for serious crimes. He says the jury should comprise of psychiatrists, sociologists, psychologists, child care specialists and members of the public, including parents.

SOCIAL CHANGE The new bill will perhaps act as a muchneeded deterrent. While it will enable persons above 16 to be tried as adults for serious offenses like rape and murder on a case-tocase basis, they will still not get death or life sentence. At the same time, the bill will have repercussions on many other laws, which will have to be amended due to the reduction in the age of juveniles. But the bigger obstacle India will have to overcome is that the country is a signatory to three international conventions—United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), 1985; UN Convention on the Rights of the Child (UNCRC), 1989; and United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), 1990. These conventions make it mandatory for the juvenile age to be 18. It will be a challenge for the new government to reconcile our domestic compulsions with the requirements of these international protocols.

While this bill will facilitate legal restructuring, Dr Broota calls for a more fundamental shift. “What we need is right education, by which I don’t mean literacy, but restructuring family interactions. When a child sees that the men in the family don’t respect the womenfolk, he too starts perceiving the mother as a weakling. And if you don’t respect women at home, why would you respect them on the roads?”

Dr Patel also calls for deep-rooted social reforms. “Entrenched male-centric egos are at play. Even if you were to give the harshest punishment, I am not sure if the culture of violence will subside.”

Till that utopian change, here’s hoping for some reprieve on the judicial front. IL

The new bill The key provisions of the Juvenile Justice (Care and protection of Children) Bill, 2014

Empowering the Juvenile Justice Board with the right to decide whether the trial of juveniles above 16 years involved in heinous crimes will happen in regular court or not Bringing in more clarity in the procedures and roles of the Child Welfare Committee and Juvenile Justice Board Making it mandatory for all child-care institutions to register, failing which they would face stiff penalty Enforcing severe punitive measures with regard to offenses against children; broadening the definition of corporal punishment to include verbal abuse too Providing statutory status to the Central Adoption Resource Authority for facilitating inter-country adoptions Strengthening and streamlining the measures for adoption of children Making ragging punishable by up to three years in jail and a fine up to `one lakh INDIA LEGAL August 31, 2014

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THE NATION / new government

NDA-II=UPA-II the bjp-led nda is aping the policies of its predecessor in many respects, leaving the voters to wonder what was the magic mantra that the party promised during the election campaign

By Anita Katyal in New Delhi

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FTER its stunning victory in the 2014 Lok Sabha elections, it was widely expected that the Bharatiya Janata Party-led National Democratic Alliance government would unveil its future agenda during its first Parliament session. Given its brute majority in the Lok Sabha, the ruling alliance has the luxury of pushing ahead with fresh ideas to signal its much-promised break from the past. But as the ongoing budget session draws to a close, it is evident that the three-month-old NDA government is yet to usher in any radical changes as far as its legislative agenda is concerned.

Opting for continuity in governance, the ruling alliance has instead resurrected the bills, which were drawn up by the previous Congress-led United Progressive Alliance government, but could not be approved by parliament during its tenure. “The NDA government has obviously not done its homework….it has not been able to bring any new bills. It is continuing with the agenda set by the Congress,” remarks former Congress minister Rajeev Shukla.

In fact, shortly after taking charge, Prime Minister Narendra Modi had asked his office and the parliamentary affairs ministry, headed by M Venkaiah Naidu, to scrutinize all the bills which were not cleared by the UPA government and to list out those which could be taken up during the budget session on a priority basis.

Since it took charge in end-May, one explanation being offered by the NDA government is that it had little time to prepare its own legislation for the budget session. But having promised to end the policy paralysis witnessed during the previous regime, the Modi government has been under pressure to deliver on its promise of speeding up the decision-making process. It could hardly afford to go through its first parliament session without having anything to show by way of its legislative achievements.

Moreover, the BJP felt its move to complete the UPA’s unfinished agenda would make it easier for the ruling alliance to enlist the support of the Congress party, which would find it difficult to oppose the bills its government had introduced.

The NDA government has the numbers to push through any legislation in the Lok Sabha but it is compelled to do business with the opposition in the Rajya

Sabha, where it is in a minority. Consequently, the ruling alliance has dug up the UPA government’s Insurance Laws (Amendment) Bill, which seeks to raise the cap of foreign investment in the insurance sector from the current 26 per cent to 49 per cent.

Similarly, the Judicial Appointments Commission Bill, seeking to do away with the present system of judges appointing judges and giving a greater say to the executive in this exercise, has also been dredged up. It was passed in the Rajya Sabha last year but failed to clear the Lok Sabha hurdle.

The Securities Laws (Amendment) Bill, approved by the Lok Sabha on August 6, is also the UPA government’s brainchild. This legislation empowers SEBI investigators to crack down on fraudulent investment schemes like the recent Saradha case.

The Narendra Modi-led government is also moving ahead to amend the archaic labor laws. The proposed legislation allowing employers to hire more workers without complying with the labor laws, was initiated during the UPA-I tenure in 2005, but had to be withdrawn following opposition from the Left parties, which were lending crucial outside support to the government. A fresh bill was introduced in the Rajya Sabha in 2011 but it failed to make any headway.

In fact, much of the groundwork for the Juvenile Justice Act, cleared by the union cabinet on August 6, was undertaken by woman and child development minister Maneka Gandhi’s predecessor Krishna Tirath.

“The fact that the substantial part of the legislative agenda of the NDA government is a continuation of the bills proposed by the UPA government is a both a validation of the previous regime’s polices but it also demonstrates a lack of any fresh thinking on part of the BJP,” says former law minister Ashwani Kumar.

Ironically, the ruling alliance is now seeking passage of the bills, which were consistently blocked by the Bharatiya Janata Party when it was in the opposition during the UPA tenure. “This clearly betrays the doublespeak of the BJP, whose stand depends on whether it is in the government or in the opposition,” Ashwani Kumar adds.

Admitting that the ruling alliance is taking

“Welcome to the real world,” former Finance Minister P Chidambaram quipped, reacting to Arun Jaitley’s budget which has a strong UPA imprint. forward the previous government’s pending bills, Finance Minister Arun Jaitley maintains the legislation has been suitably tweaked and amended. The Judicial Appointments Commission Bill, according to him, has been altered significantly. “It’s a brand new bill,” he underlined.

W

hile Jaitley is predictably defending his government, the new finance minister’s maiden budget has also been labeled by the Congress as a UPA budget. Taking a dig at his successor, former Finance Minister P Chidambaram was quick to point out that the BJP budget carried the “imprint of the UPA government’s policies”. “Welcome to the real world…. BJP sought a mandate for a Congress-mukt Bharat. My friend Arun Jaitley would have realized that it is not possible to have even a Congress-mukt budget,” remarked Chidambaram.

With the Congress gloating that the NDA government was continuing with its policies, BJP’s parliamentary managers were very confident that its legislative agenda would have a smooth run in parliament. The Securities Laws (Amendment) Bill was cleared by Parliament without any murmurs from the main opposition party. However, the BJP was taken aback when the Congress joined hands with other opposition parties in the Rajya Sabha to stall the introduction of the crucial Insurance Laws (Amendments) Bill.

Taking advantage of its numerical strength in the upper house, the Congress has INDIA LEGAL August 31, 2014

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THE NATION / new government

“Why is the government in such a tearing hurry? They kept us waiting for six years,” asks Ghulam Nabi Azad, leader of opposition in Rajya Sabha, talking about NDA’s U-turn on insurance bill.

REPEAT ACT Insurance Laws (Amendment) Bill Tabled by UPA government in 2008 Reintroduced by the NDA government in its first budget session Blocked by the opposition in Rajya Sabha Judicial Appointments Commission Bill Tabled by the UPA government in 2013 Cleared by the NDA government, but no date set for its reintroduction Factories (amendment) bill and the Apprenticeship (amendment) bill.

Reintroduced by the NDA in its first budget session Securities Laws (Amendment) Bill Tabled by the UPA government in 2013 Reintroduced by the NDA in the budget session

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succeeded in unsettling the BJP leaders. The Congress-led opposition demanded that the legislation be referred to a parliamentary panel for a detailed scrutiny, as the ruling alliance has introduced a number of substantive amendments in the original bill tabled by the UPA government way back in 2008.

While the Left parties and the Trinamool Congress are ideologically opposed to the insurance bill, the Congress has its own scores to settle with the BJP. After all, it was the BJP which stalled the same bill for six years when the UPA was in power.

A

fter the UPA government introduced the bill in the Rajya Sabha, it was referred to the parliamentary standing committee on finance, headed by former finance minister and BJP leader Yashwant Sinha. The panel, which submitted its report in 2011, rejected the UPA’s move to raise FDI in the insurance sector to 49 per cent. Chidambaram made several attempts to address the BJP’s apprehensions and even offered to amend the bill to make it more acceptable, but to little avail.

The wheel has now come full circle. After blocking the bill for all these years, the BJP is now working overtime to persuade the opposition to approve the same legislation at the earliest. However, its leaders are hard pressed to explain their past opposition to the bill.

“We were never really opposed to raising the

FDI limit to 49 per cent…. since the standing committee had made some observations, certain doubts had arisen,” explains Arun Jaitley.

BJP leaders privately maintain the bill was stalled because of the poor interpersonal relations between Yashwant Sinha and Chidambaram. Others recall that relations between the Congress and the BJP had deteriorated to such an extent that the overwhelming mood in the saffron party then was to veto every major bill moved by the UPA government. The Congress was helpless, as it needed BJP’s support to push through its legislative agenda in the Rajya Sabha, where it was in a minority.

Eager to prove to the electorate that it has got its act together, the BJP wants the insurance bill passed at any cost.

Parliamentary Affairs Minister Venkaiah Naidu wants the Congress-led opposition to “move forward”.

Having been at the receiving end for the past decade, the Congress has now got an opportunity to corner the BJP. While maintaining it is not opposed to the bill, the Congress insists it should be referred to a parliamentary select committee, as the NDA government has changed the definition of FDI to include investments by foreign investment institutions (FIIs), which could facilitate the entry of hot money.

“Why is the government in such a tearing hurry? They kept us waiting for six years and now they can’t even wait for a few months,” asks Ghulam Nabi Azad, Congress leader and leader of opposition in the Rajya Sabha.

The Congress gameplan is to buy time and delay the passage of the bill. It wants the BJP to sweat it out, especially since Prime Minister Narendra Modi is keen that the NDA government’s first major reform bill should get the parliamentary approval before his September visit to the US. Besides wanting to send out an unequivocal message that it is serious about pushing economic reforms, the NDA government also needs to soften the blow because its tough stand on food subsidies at the recent WTO meeting has come in for public disapproval by Washington.

Keen to score a victory, a desperate BJP has attempted to divide the opposition and has even threatened to call a joint session of parliament to secure the passage of the bill. Promulgation of an ordinance is also being mentioned.

A plaintive Venkaiah Naidu was heard telling the opposition recently: “We opposed the bill when you brought it. We brought the bill and you have opposed it. Now let’s move forward.” But the Congress is unwilling to cooperate. After being decimated in the recent Lok Sabha polls, the Congress has got a chance to prove it is still relevant. It is unlikely to fitter away this opportunity, which has landed in its lap very easily. IL INDIA LEGAL August 31, 2014

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THE NATION/ governance / the prime minister

SILENT

PM in a country used to noise, modi’s decision to work quietly has not really gone down well with many

By NV Subramanian

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here is a growing chorus of criticism that Narendra Modi is as reserved as prime minister as he was outspoken during the 2014 general election campaign. Comparisons are being made to Manmohan Singh. His silence, especially on various sectarian incidents, has drawn particular attention. Should Prime Minister Modi open up? It is his decision. Reserve generally suits a prime minister and heads of governments as such. His government can be more communicative, however, to remove misunderstandings and some repair, apparently, is underway in that direction.

In practising strategic silence, Modi is different from Manmohan Singh, who was Sonia Gandhi’s nominal prime minister. This writer did not watch Modi closely as Gujarat’s chief minister; but those who did, see a similarity of style in his present taciturnity and composure. Even without the benefit of that history, it is obvious that Narendra Modi has chosen quiet over loquacity. He has often said that he wishes his work to speak for him and his government. But his general uncommunicativeness is also an attempt to insulate the prime ministry from the daily conflagrations that confront government.

It is not as if the prime minister has not spoken. In

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Sipra Das

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parliament, he condemned the random killing of a Muslim youth from Pune and the murder and rape of two girls in Uttar Pradesh, seeking general compassion for womenfolk. But the nature of his office is such that he ought not to be heard often, because it would rob the weight of his sentiment.

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ll over the world, wise political leaders weigh their words. They are acutely aware of the consequences of their articulation. In exceptional circumstances, they would be compelled to break out of the mould of silence. In war, the leader cannot be silent and is responsible to keep up morale of his forces and of his people, and to challenge the enemy. In the event of national disaster, the head of government is expected to rally the broken citizenry, but in words and deeds equally. It differs from situation to situation. In no case must the prime minister speak more than is absolutely necessary.

India has a talkative culture. It is possibly the noisiest country in the world. These high noise levels have done the country no good.

After Indian films, the news television studios are noisiest places. Unless participants in a debate come to blows, it cannot be deemed a good night. Narendra Modi’s silence ruins everything for news channels. There is no noise from the prime minister’s office. This destroys their TRPs. Clearly, the media is fueling the Narendra-Modi-is-not-talking controversy.

Do the people care? Not really, so long prices are low and the quality of life improves.

This has not happened and it is too soon to expect it to either. But volubility will not mend matters. What is Modi supposed to do? Be on Doordarshan every night to assuage people that the “good days” are imminent?

There is a communication gap; but it is not necessary for the prime minister to fill it. The government has been speaking, but perhaps not in an organized way. For example, assorted Union ministers have corrected distortions apropos Telangana-Sania Mirza, Shiv Sena lawlessness in Delhi’s Maharashtra Sadan, the Hindi issue, etc. Narendra Modi chose to speak in English at a satellite launch ceremony in Andhra Pradesh. It is not that the government is not reaching out. But the nature of the beast is to be slow and awkward.

News reports say that Prime Minister Modi

Counterpoint IT is the expectations that are now coming to roost. It is not just that the PM is silent on issues but a lot of flak is also for the inaction, be it in the case of reining in lumpen elements or taking strong decisions on the economy. The expectations from Modi government were sky high and these expectations were nurtured by Modi himself during the elections.

One might call it election rhetoric and let it pass but in a democracy, when a party can move from 2 seats to 282 seats and a party with 400+ seats comes crashing down to 44, things move very fast and this disenchantment has to be kept in mind because the people are restless. It looks as if the system seems to be overpowering and by that what I mean is two things — 1) the stranglehold of babudom, which got reflected in the budget (which many of my friends say was the bureaucrats’ revenge and 2) succumbing to perennial election trap. The federal government cannot keep overlooking things or to put it crudely appeasing some state or the other—a la train fare rollback for Maharashtra or the UPSC farce being run around now for the

sake of UP and Bihar by-elections.

On the economy itself it is a messy scenario—empty coffers, poor monsoon—but signaling in the budget would have helped. People were ready for a harsh budget and even Modi mentioned sometime/somewhere that this budget it would be a bitter pill to swallow for a better tomorrow, but the bitter pill never came.

People are willing to buy the government argument that it did not have time and so are willing to forgive the current budget (but I would say a fantastic lost opportunity) which was clearly lackluster—a rehash of Chidambaram’s budget. However if in February 2015 the government fails to deliver what one calls a “blockbuster” budget like Chidambaram’s “dream” budget then people would be unforgiving and not before long this government would be anointed as UPA- III. I know I am speaking with a very narrow blinker’s on approach with the economy in focus, but that’s the miracle which can usher India out of the mess.

— A reader

has finalized a joint government-party mechanism to address gaps in communication. But there is no call for the prime minister to speak more than is absolutely necessary. Silent waters run deep. This noisy country needs to remember that once in a while.

Media criticism of government is valid, provided it is not deviously motivated. But the media hates to turn the spotlight on itself. The editor who took `60 lakh to suppress tapes about a parliament scandal escaped scot-free and can be heard now and then lecturing about journalistic integrity! A popular or hated television anchor—have your pick—volunteered to do a “positive” programme on a jailed celebrity for the price of `5 crore. The offer was scorn-fully rejected. Talk of the pot calling the kettle black. IL

—NV Subramanian is editor, www.newsinsight.net and writes on politics and strategic affairs.

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AVIATION/ conflict zones

WHO WILL

POLICE

THE SKIES? with mh17’s downing over ukraine, there are calls for icao to enlarge its mandate and ensure global air safety

By Shobha John

F

lying seems fraught with danger. This was evident when Malaysian Airlines MH17 was brought down in Ukraine on July 17 by pro-Russian separatist rebels, killing all the 298 passengers on board. With conflicts erupting all over the world, be it in the Middle-east, parts of Africa or Afghanistan, and taking on a global hue—the MH17 crash encompassed victims from 10 countries—the perilous nature of air travel is becoming all too evident. But are air regulations and civil aviation bodies up to the challenge?

Already, there have been calls to incorporate into international law, through appropriate UN frameworks, measures to govern the deployment of anti-aircraft weaponry. Airline and pilot organizations are calling for more guidance on operating safely in conflict zones and asking why the International Civil Aviation Authority (ICAO), UN’s civil aviation body, did not issue a warning about the potential dangers of flying over Ukraine.

The International Federation of Air Line Pilot’s Associations (IFALPA), a global pilots’ association, has advised its members: “If unsure or uncomfortable, pilots should not overfly or operate into potentially hostile

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areas.” The MH17 crash has highlighted the fragmented nature of global aviation regulations, which are chaotic and indecisive about aviation routes and war zones.

FANGLESS ICAO? Some have lambasted Montreal-based ICAO, too. An article, The Dangerous Skies: Aviation Responsibility in times of War in International Policy Digest, said: “ICAO is an organization that does take interest in aviation safety, but it is one without fangs. ICAO tends to come across as a bit rarefied, distant from the actual play of flight travel. Safety advisories do not fall into its remit, the feeling being that such statements should come from another source.”

What led to the furore was an ICAO statement on July 24 that it was not its job to warn nations about the dangers of missiles. Its spokesman Anthony Philbin said it was the responsibility of its sovereign member states to advise other states of potential safety hazards.

There is an increasing demand that the UN body ICAO takes up the larger role of alerting airlines about route safety in the wake of the Malaysian Airlines disaster. the blame. Each is responsible for the safety of aircraft operations,” clarifies Lumba.

ROLE CONFUSION Just like the UN cannot be a super cop, explains Lumba, the ICAO cannot be a super regulator. Its role is purely recommendatory in nature and acts, at best, as a facilitator, he says.

“Each nation is responsible for the airspace over it. Ukraine restricted airspace to 32,000 feet, based on threat perception. If individual nations perceive a greater threat perception, they are to take appropriate action.”

ICAO’s principal function, says Mark D THREAT PERCEPTION The shooting down of MH17 in Ukraine has raised concerns on airlines flying over conflict zones UNI

But in a belated somersault, on July 29, after an “extraordinary meeting” with four international civil aviation organizations, ICAO said it would set up a task force to address “gaps in the system” and said more needed to be done to ensure that all member states provide accurate and timely intelligence when it comes to potential risks to passenger planes in their airspaces.

To understand ICAO’s reluctance to even issue warnings, one must understand what its mandate is. It is a UN body with 191 signatory states. Its advisories are based on decisions taken by delegates. Captain Shakti Lumba, the chief of operations of Dubai-based Nashwan Aviation Szc and former vice-president, flight operations, of Indigo Airlines says that ICAO’s statement of not wanting to interfere is in keeping with its obligations.

“ICAO’s role is misunderstood. If one is to find fault for the downing of the Malaysian jet, then it is Ukraine, national civil aviation regulators and individual airlines who should take

Ukraine’s crisis June 14, 2014: An Air Force Ilyushin Il-76 aircraft was shot down on approach to Luhansk International Airport; all 49 dead July 14, 2014: A Ukrainian Air Force AN-26 transport plane flying at 21,000 feet was shot down. Militia reportedly claimed a Buk missile launcher was used to bring it down July 16, 2014: A Sukhoi Su-25 close air support aircraft shot down

INDIA LEGAL August 31, 2014

29

AVIATION/ conflict zones

provider of the contracting state. Legally, it is their sole responsibility to release such a circular, says Martin.

“ICAO’s role is misunderstood. If one is to find fault for the downing of MH17, it is Ukraine, national civil aviation regulators and individual airlines who should take the blame.”

“There are 17 ICAO annexures that deal with airport operations, air navigation services, accident investigation, aviation law-making, etc.

Contracting states should release these.”

Captain Shakti Lumba, operations head, Nashwan Aviation Szc

Mark D Martin, CEO, Martin Consulting

Safe Skies Whose job is it to give advisories on air space?

The job of issuing NOTAMs (Notice to Airmen) falls on the authority which operates or manages air navigation services. In India, this falls on the Airports Authority of India and in some areas, on the IAF, Navy and the Army. The Directorate General of Civil Aviation has the mandate to issue circulars that ensure that airlines, state governments and civilian operators of aircraft comply with safety standards and requirements, says Mark Martin.

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Martin, CEO of Martin Consulting, an aviation consulting firm, is to ensure that the contracting states and airlines comply with its standards and requirements, as defined by its annexures and conventions. “There are 17 ICAO annexures that deal with airport operations, air navigation services, accident investigation, aviation law-making, etc. It is the responsibility of contracting states to release these. ICAO’s core function can be seen in the Global Safety Audit Ratings, which it releases.”

However, pilot associations are saying ICAO should lead from the front and have the tools to do so. “The absence of a clear international coordination to avoid operations above eastern Ukraine has now become tragically obvious. To avoid a repeat, ICAO should be better resourced and enabled to declare airspace unsafe,” says Jim McAuslan, general secretary of the British Airline Pilots’ Association, to Air Traffic Management, a magazine.

What ICAO does is provide a minimum level of protection against human error, says Lumba; individual nations are to provide an additional layer if they so desire.

The most common directives are called “no-fly-zones”. These are released by both the military as well as the air navigation service

CASE OF DISPUTED ZONES But conflict zones are an altogether different ball game. The area of jurisdiction can sometimes be nebulous.

Disputed territories the world over, stresses Martin, are not formally recognized by ICAO, though it does strive to extend support and compliance. “In the Ukraine case, the disputed territory is controlled by rebels and not formally recognized as a state by the UN, any country or ICAO,” he says.

So it is up to each airline to access where it should fly. But with the reduced clout of pilot associations, the last safeguard has been lost.

“For example, the Indian Commercial Pilots’ Association, the union of the erstwhile Indian Airlines, used this criterion in 1992 to stop pilots from flying into J&K when insurgency was at its peak and there was intelligence information that militants had missiles. The chief labor commissioner upheld this decision,” says Lumba.

Even pilots can put their foot down if they feel an area is unsafe. But very few exercise such authority due to management pressures.

Though ILO resolutions prohibit placing workmen in areas of danger, most airlines and countries do not follow it, says Lumba.

While the Ukraine scenario was not expected, as the plane was flying over the danger limit at 33,000 feet, sometimes cost considerations can make airlines turn a blind eye to safety. Longer routes mean more fuel and more expenses.

Ukraine, for example, is in the middle of a common direct route between Europe and south-east Asia. Further, countries receive over-flight fees from commercial flights above their territory, often giving safety the go-by. In such cases, domestic aviation authorities should exercise their powers, stress experts.

For example, the US Federal Aviation Administration recently issued an order allowing its airlines to fly over Israel.

Caution more than commerce should be the byword in the aviation industry. And if international laws need to be changed, they must be done. It could make the difference between life and death. IL

GLOBAL TRENDS/ terrorism

HAFIZ SAEED’S MODERATE MAKEOVER

why is the mastermind behind the 2008 mumbai terror attack denouncing acts of extremism from pakistan’s soil?

By Vishwas Kumar

I

N a bizarre and seemingly sudden change of heart, the 2008 Mumbai attack mastermind Hafiz Muhammad Saeed has denounced “acts of terrorism” in an interview to a Pakistani newspaper. He was quoted in the interview as saying: “We were the first organisation, which declared long ago that suicide bombings and all acts of terrorism within Pakistan remain against the tenets of Islam. Shariat forbids such acts. Those who are destroying peace in Pakistan are directly or indirectly working on foreign agenda.”

Saeed was speaking as the head of the Jamaatud Dawa (JuD), which is the charitable arm of the banned terror group Lashkar-e-Toiba (LeT). He made this statement in the context of Pakistan Taliban (Tehreek-e-Taliban Pakistan, TTP) stepping up suicide attacks on Pakistan’s armed forces and civilian targets inside Pakistan.

Saeed’s sermon has security analysts wondering what his new gameplan is. Is he feeling shaky that the new organisation, TTP, is emerging as the more popular and powerful voice for Islamic causes among Pakistani jehadists? And to think that all this is happening beyond the Pakistan’s army patronage and control could be disconcerting for Saeed, the founder of LeT. That Saeed’s mentor, protector and financer remains Pakistan’s ISI (Inter-Services Intelligence) is the worst-kept secret. But this could change quickly, as Saeed is cornered through the rise in terrorist attacks within Pakistan.

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GLOBAL TRENDS/ terrorism

BLOOD ON HIS HANDS The ghastly November 2008 killings in Mumbai were masterminded by Hafiz Saeed

His position of authority among jehadists is being challenged by the TTP, which doesn’t believe in the concept of Pakistan as a nation.

For the TTP, the Islamic cause is bigger than the unity and integrity of Pakistan. And that has brought the TTP in direct confrontation with the Pakistan army.

Saeed’s only option now is to become the Pakistan army’s “unofficial spokesperson”, giving lectures and sermons to “educate” the jehadists against “suicide bombings” and “terrorism” against Pakistan.

That is his opinion on attacks within Pakistan. He remains quiet on whether his lec-

Saeed can’t condemn terrorism because he would then become a target of terror groups.

But if he doesn’t talk against terrorism, his benefactors would go against him.

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tures apply to non-Islamic nations as well.

Basically, Saeed seems to be a man riding a tiger—doomed any which way. That’s what his recent tweets indicate. He cannot criticize terrorism, because he would then become a legitimate target of terror organizations like the TTP. And if he doesn’t talk against terrorism, his current benefactors would go against him.

Saeed is, thus, using the reach of social media to deliver his new approach strategies, to re-orient and to remain relevant.

His actions were well calibrated to project this new image. In July, he gave his first interview to the BBC, and later he talked to India’s freelance journalist Ved Pratap Vaidik.

The timing of the BBC interview showed his urgency to get back on track—it was a week after the US declared JuD a “foreign terrorist organization”. This move freezes any assets it has under US jurisdiction. The US had earlier put the LeT in a similar category.

The LeT founder’s actions were well calibrated to project a new image. In July, he gave his first interview to the BBC, and later spoke to Ved Pratap Vaidik.

In the interview, Saeed lamented that US was targeting his organization simply to please India. “America always takes decisions based on Indian dictation. Now it’s imposing this new ban because it needs India’s help in Afghanistan,” he said.

And the choice of BBC was because the news channel has a huge reach within the Indian sub-continent. Then he met Vaidik, just to prove his credentials as a “moderate” jehadi leader. The BBC journalist Andrew North, who interviewed Saeed, later said that he had tried earlier to speak to him but was never granted permission. Vaidik also made a similar comment.

Saeed’s residence is heavily guarded by the ISI and his actions are closely monitored. So it can be assumed that the meeting with foreign journalists was facilitated by the ISI. But why would the ISI allow this?

T

herein lies the bigger picture. Most analysts agree that the Pakistan’s army has started fine-tuning and implementing its strategy in preparation for the US forces’ full withdrawal from Afghanistan at the end of this year. Since Saeed and his terror outfits are fully embedded within the Pakistan army’s strategic vision, all his moves needs to be read and understood in this context.

One indication was the recent launch of Operation Zarb-e-Azb by the Pakistan army to flush out terrorists from their hideouts in North Waziristan. This has been a long-standing demand of the Americans.

The idea, it seems, is to push all the militants, including the most dreaded ones, such as TTP, Haqqani network, Al Qaeda and the Islamic Movement of Uzbekistan into Afghan

territory. With the US army already in drawdown mode and the Afghan military mainly focused on protecting big cities, the Waziristan terrorists are easily slipping into unmanned areas of Afghanistan.

AN AFFAIR TO REMEMBER Saeed’s meeting with Vaidik led to a bushfire in the Indian media and political corridors

S

ameer Saran, a noted defence analyst in his recent column in the think-tank, Institute for Defence Studies and Analyses (IDSA) said: “...many of the jihadists who are being ‘expelled’ or ‘pushed out’ of Pakistan are not going to face any real problem in Afghanistan. In the process, the Pakistanis are hoping to win brownie points for having launched this much awaited operation and at the same time keep their larger gameplan of keeping their ‘strategic assets’ intact.”

The analyst further observed that “the jihad factory will continue to operate, but without the jihadists enjoying any of the autonomy of action that they had started taking for granted.”

No wonder, Saeed is the most enthusiastic supporter of Operation Zarb-e-Azb (literally, ‘Sword of Prophet Muhammad’). In a series of tweets lasting several days, he complimented the army for the operations and also took great pains in explaining why they were forced to act against their own “brothers”.

Using the hashtag #ZarbeAzb, he said in his tweet: “US direly wanted an army operation in NW upon its dictation. However, Pak Army has launched #ZarbeAzb keeping own security interests in focus.”

It remains to be seen if the ‘new-improved’ Saeed can survive this critical phase. IL INDIA LEGAL August 31, 2014

33

CONTROVERSY/ national herald /opinion

CONVOLUTED

CRIMINALIZATION much is being made out of the means for acquiring ownership of the daily. it is nothing but plain business restructuring

By Ranjeev C Dubey

T

he awareness that our judiciary has time and again rescued the nation from impending doom clouds our vision when it comes to gross miscarriages of the due process that routinely litter its path. The much reported National Herald case, in which Congress President Sonia Gandhi, Rahul Gandhi and several others are being prosecuted for conspiracy, criminal breach of trust, misappropriation and cheating is one of the latest examples of a criminal prosecution launched on the flimsiest of basis.

The Gandhis have been accused of offenses that attract a seven-year jail sentence but the underlying facts only reveal, what appears to me, an unexceptional case of business restructuring. This is how it goes.

Three years back, the Congress had decided that they wanted to revive a newspaper deeply loved by Jawaharlal Nehru. National Herald was bankrupt despite large loans, and the party didn’t think that the revival plan was best executed riding on the back of a political platform. That’s a fair assumption with which at least the income tax department agrees—it has issued notice to the Congress threatening to take away its charitable status because the party gave away money (as a loan) to a newspaper airing its political views.

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The magistrate thought that political donations are public money “entrusted” to political parties and using it to publish its political view through a “not for profit” company is a criminal breach of trust. That is indeed a strange notion. Political donation comes without strings and there is no “entrustment”. Besides, I will take any politician’s invitation to jump the “public money” hoop only after these righteous rhetorical raconteurs have opened their accounts to the Right to Information Act. Next, the Congress assigned the loan at a cut price to a purpose-registered not-forprofit company and squared the accounts. If you have ever restructured a sick company, I am sure you have sold a bad debt for a song too. The magistrate is displeased that the debt was sold to a company of which the Gandhis are shareholders. It escapes me how anyone is better qualified than Nehru’s descendants to pursue his ideals. The magistrate’s chief apprehension lay in the ostensible value of these properties regardless that the company was “not for profit”. She assumes that the accused will convert the company back to a normal “for profit” one and misappropriate the money. That, I believe, is akin to prosecuting someone for purchasing a car because it could kill someone on the road someday.

S

o what about criminal misappropriation? In the magistrate’s view: if company A acquires a debt from the creditor of company B and converts it into equity, then the directors of the holding company A have acquired the properties of the subsidiary company B. This automatically means that the subsidiary’s properties have been misappropriated by the directors of the holding company whose ‘personal kitties’ are thus filled. Thus, at a stroke, the magistrate has lifted the corporate veil without legal reason, obliterated the distinction between shareholder and professional non-shareholder director, assumed the assets of a subsidiary company are the personal property of the directors of a holding company, and launched a prosecution based on an apprehension of misappropriation that may occur at some time in the uncertain future.

Anil Shakya

Finally, the magistrate believes this ‘misappropriation’ is dishonest because the conversion of debt to equity caused a wrongful loss to National Herald’s shareholders.

National Herald is a registered company. If you get shareholders’ approval, company law allows you can convert debt into equity.

Lawyers restructuring businesses commonly render such advice. I have heard of minority shareholders approaching the Company Law Board against dilution, but a third party politician approaching a criminal court?

As a lawyer, I am alarmed at the lack of gravitas and deliberation with which summons have been issued in this case, as I am with so many others. I am even more alarmed when jabbering TV heads talk trash and air prejudice in the name of considered opinion till I, like Jim Morrison, am ready to cancel my subscription to India’s resurrection.

In the main, I am overwhelmed by the idea that some of my hard earned tax payers money will be used to adjudicate on this baseless prosecution that will doubtless end in a whimper of a discharge. IL

—The author is managing partner of the Gurgaon-based corporate law firm N South INDIA LEGAL August 31, 2014

35

ENVIRONMENT/ mining in odisha

F

OR years, central and state governments, led by the Congress and its allies or BJP and its partners, did little to curb illegal mining.

The judiciary and executive gave conflicting signals or took decisions that curbed the symptoms but not the malaise. In the chaos, the demand for a CBI probe by the MB Shah Commission became muted. Although PIL activist and member of the Aam Admi Party, Prashant Bhushan, filed a case in Supreme Court this January, there was little movement.

The fact is that the Congress and BJP, their coalition partners, and even the unallied political parties have vested interests that make them shy away from a CBI investigation. For example, the BJP’s Odisha unit put the state’s

mining companies brazenly operate illegally, with central and state governments being too willing to leave the field open to them

By Vishwas Kumar

THE BLACK TRUTH

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August 31, 2014

chief minister, Naveen Patnaik, in the dock for abetting illegal mining. It latched on to the Shah Commission recommendation for a CBI probe. Later, its demand became muted, as Narendra Modi’s blueprint is to accelerate infrastructure projects, including in the mining sector.

Says the BJP Odisha state president, KV Singh Deo: “We have repeatedly demanded a CBI probe but the state has been reluctant. We have written to the governor, requesting him to order the same.” But when quizzed why he didn’t up the ante after his party came to power at the center, Deo’s reply was that “the matter is in the court and sub-judice.”

Although the Congress set up the Shah

gg2.net

Commission, it had little interest in pursuing the latter’s recommendations. The reason: one of the culprits behind illegal mining was none other than A Raja, the main accused in the 2G scam, who was the environment minister (independent charge) between May 2004 and May 2007. Obviously, political parties like Odisha’s BJD would wish to have the investigations under its jurisdiction—state’s chief vigilance office—rather than by center’s CBI. The judiciary imposed a ban on mining in several states and regions and, later, removed some of them. In April 2014, the Supreme Court lifted the ban on iron ore mining in Goa, but capped annual production at 20 million tons a year. The apex court imposed other

conditions, which included that the state will not give mining leases to companies that were given extension after 2007 despite the completion of the 20-year renewal periods. It upheld the earlier decisions by the center and Goa government.

The business community reacted against the bans. It said the judicial and other curbs impacted growth. In his budget speech, Arun Jaitley agreed: “It is my government’s intention to encourage investment in mining sector…. The current impasse in mining sector… will be resolved expeditiously. Changes, if necessary, in the MMDR (mining) Act would be introduced to facilitate this.”

Meanwhile, illegal mining continues.

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37

ENVIRONMENT/ mining in odisha

Mining companies have been operating for decades without proper clearances. In Odisha alone, of the 192 mining leases 94 did not possess the required clearances.

The Shah Commission pegged losses from it at around `100,000 crore in two states, Odisha and Goa. According to the report, the reasons that facilitated illegal mining, apart from the “China factor”—prices of iron ore shot up 20 times in 2008-11 due to demand in China— included “lack of effective enforcement”, and “absence on the part of the concerned officers to effectively curb the menace of illegal mining”. It added that there was a nexus between mining mafias, and central and state governments. There were “systemic failures” too.

S

o, what is the modus operandi of the illegal miners? How do the ministers and bureaucrats abet their activities? How is it that India reached a state where, as Shah Commission noted, “there is enormous and large-scale multi-state illegal mining… having several pernicious evil effects on the national economy, good governance, public functionaries, bureaucracy, public order, and law and order”? How did these activities encourage corruption, mafia and money power?

One of the routes to “legally” continue illegal mining was through temporary working

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permissions (TWPs). In July 2005, environment minister Raja passed an order that several mining projects, which had expanded their operations without the requisite “green” clearances, could be granted TWPs and a twoyear grace period to get them. This proved to be a loophole in the existing policy, which stated that miners had to get the environment clearances before expanding their capacities.

As international prices of iron ore zoomed between 2008 and 2011, thanks to huge demand from China, Indian exporters earned “super normal profits” of 100 percent and above. Miners went ahead with expansion even after the two-year grace period. The Shah Commission found that of the 192 mining leases in Odisha, 94 did not possess the required environment clearances. Of the latter, 55 leases had not got them for almost a decade. The commission estimated illegal mining of over 50 million (5 crore) tons of iron and over 42,000 tons of manganese, which resulted in a loss of `60,000 crore.

In November 1994, just after it announced the new environment policy, the ministry issued guidelines to the chief secretaries of the states and union territories, which stated that if mining projects were located in forest areas, or forest area was diverted for non-forest uses, they required two separate clearances under the Forests Conservation Act (FCA) and Environment Protection Act. The rules added that a project “would be deemed to be cleared only after clearance(s) from both angles”.

Later, in May 1998, TN Seshan, the environment secretary, who went on to become the chief election commissioner, asked NK Panda, chief secretary, Odisha, to investigate miners, who had violated FCA requirements, “so as to fix the responsibility on the persons responsible and that such violations are not continuing any further.” However, as the Shah Commission noted: “In Odisha, no such directions were followed for years together in almost all the leases and hence, large-scale illegalities have been committed by non-compliance of the provisions of existing statutes.”

For instance, between 2004 and 2012, mining lessee BK Mohanty, power of attorney holder Deepak Gupta, and directors of Deepak Steel and Power carried out “illegal mining” in Barbil’s Uliburu forest in Odisha in

connivance with local authorities. During this period, the company extracted over 40 lakh tons of iron ore and 610 tons of manganese ore, estimated at `2,000 crore.

T

here were other ways in which the state and central agencies encouraged illegal mining. These included the practises of “deemed extensions” and “deemed refusals”. The former allowed miners to continue mining after the end of their lease periods. The deemed extension clause was meant to deal with contingencies; it kicked in only if there were genuine administrative delays in lease renewals. However, the exception was turned into a rule. The miners wished to avoid a complex process to seek fresh clearances and no-objection certificates. In collusion with the state and local authorities, they operated on deemed extension basis for years and decades.

The Shah Commission found that of the 341 operational mines in Odisha, 215 worked under deemed extension clauses. The leases had expired more than two decades ago in the case of 15 mines, 15-20 years ago in the case of 17, 10-15 years ago in 38, 5-10 years ago in 69 mines, and less than 5 years ago in the remaining ones. “After examination of about 375 mining leases in States of Odisha, Goa and Jharkhand, it is observed that in very few mines, leases have been renewed after the 1994 policy…,” stated the commission’s report.

Like the deemed extension clause, state governments misused the deemed refusal one.

Yet again, the latter was for contingencies; the state could give TWPs to miners in case their clearances from the environment and mining ministries were delayed for no fault of the operators. Worse, the two ministries condoned “illegal mining extractions” under the deemed refusal clause by waiving off criminal prosecutions, recoveries and seizures against the illegal miners.

The Indian Bureau of Mines, a department under the mining ministry, allowed modifications in the original mining plans in the case of 85 leases of iron and manganese ores. Of these, the plans were changed several times for 30 companies. In 53 cases, the mining plans were modified with retrospective effect. “This would mean that without a prior approval, the lessee increased the production of iron ore for

some purpose, may be, export and that has been tried to be legalized by IBM,” said the commission.

Essel Mining and Industries’ annual production was changed retrospectively from 2004–05, although it did not have an environment clearance. “It would be in the right context to state here that the excess production has been post–facto rectified by the Controller (IBM)…. This post-facto approval is also an illegal ratification of the illegalities committed by lessee…. Such types of retrospective approvals have aggravated the illegal mining which was rampant during that period,” stated the commission.

In his budget speech, Jaitley asserted that apart from encouraging mining, the government will “promote sustainable mining practices… without sacrificing environmental concerns”. If the finance minister has to achieve these twin objectives—find a balance between development and environment—he does not need to change the existing laws. His government has to only follow them stringently. IL

THE KING IN CAHOOTS Former Environment Minister A Raja (2004-2007), who helped corporates win mining contracts in violation of norms; (facing page) the mining ban in Goa has upset the mining lobby

INDIA LEGAL August 31, 2014

39

RIGHTS/ death sentence

LORD, HAVE MERCY a debate has been raging over the inordinate delay in deciding cases of death penalty. is it fair for a convict languishing in jail for years?

By Rakesh Bhatnagar

J

ustice delayed is justice denied.

This was all too evident on January 21, 2014, when the Supreme Court (SC) in the Shatrughan Chauhan vs Union of India case commuted the death sentence of 15 convicts on the sole ground that their mercy pleas were rejected by President Pranab Mukherjee after an unacceptable, inordinate delay, ranging from five to 15 years. Surprisingly, the verdict evoked serious debate on “what is inordinate delay” and whether a death row convict should suffer incarceration while waiting for a decision from the president. It was also a severe

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indictment of the home ministry which handles mercy petitions and forwards them to the president for his approval or rejection. In yet another case of delay, in February, the SC commuted the death sentence awarded to the three assassins of Rajiv Gandhi.

MAMMOTH EXERCISE Seeing the increasing number of such cases, a concerned Law Commission in May called for a reassessment of the death penalty and initiated a mammoth exercise to ascertain the views of all the stakeholders on the efficacy and justifiability of the death sentence, which is termed by some as ‘blood for blood’ jurisprudence, and

ignore it,” he had told this correspondent then.

Justice Bhagwati had observed in 1980 that “judges can’t be blood-thirsty”. “…Death sentence has a certain class complexion or class bias inasmuch as it is largely the poor and the downtrodden who are the victims of this extreme penalty…. We would hardly find a rich or affluent person going to the gallows. Capital punishment is a privilege of the poor…it is the poor, the sick, the ignorant, the powerless and the hated who are executed,” he stated.

Earlier in 1979, Justice VR Krishna Iyer in had also observed, “....Who, by and large, are the men whom the gallows swallow? The white-collar criminals and corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control? Rarely.”

Anthony Lawrence

by others as the only ‘deterrence’.

While the death sentence has been abolished in 140 countries, its constitutional validity in India has always been under contention.

This was evident in 1980 when Justice PN Bhagwati registered a strong protest against it.

Judicial imbalance is also evident when some gruesome cases are left out of the “rarest of rare” cases which call for death sentence.

Former Chief Justice of India (CJI) AM Ahmadi had called for a stay on capital punishment until finality was arrived as to “what constitutes the rarest of rare” cases. In fact, between 2008 and 2013, there was an unwritten moratorium on the death sentence.

Later, another CJI, YK Sabharwal, who, in 2004 had awarded death sentence to a Kolkata security guard, Dhananjoy Chatterjee, for raping and murdering a Gujarati teenager, Hetal Parekh, in the housing society where he worked, strongly felt that capital punishment must be abolished. “So long as it exists on the statute as an alternate sentence, the court can’t

SERIOUS DELIBERATION In May this year, when Law Commission chairman AP Shah issued a detailed questionnaire, he sought the views of the legal fraternity, students, academicians, NGOs and individuals for a possible legislative deliberation on retaining or deleting capital sentence from the statute. (lawcommissionofindia.nic.in).

The foremost query of the commission was: “Are you in favour of retaining capital punishment on the statute book?” If yes, is it because it acts as a “deterrent” for future crimes, because “retribution” is the most effective means of achieving justice or so that convicts are never released back into society as they “may pose a threat in future”. Other reasons include lessening the burden on jail and an accused not deserving reform.

The commission further asked that in case a respondent is opposed to death penalty and wants its abolition, is it because he feels that “there is no conclusive proof that capital punishment acts as a deterrent for future crimes”.

Or is it because the sentence “imposes hardship and trauma for the convict’s family, who may have had no role in the crime”? The commission also asked whether capital punishment “deprives people of the opportunity to reform” or its imposition “is not free from risk as there is a chance of innocent people being sentenced to death”. It inquired if another reason to terminate death sentence was because it was

WATCH OUT! Section 303 of the Code of Criminal Procedure provides death sentence for the following offences: Treason (Section 121) Abetment of mutiny (Section 132) Perjury resulting in the conviction and death of an innocent person (Section 194) Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (Section 195A) Murder (Section 302) Kidnapping for ransom (Section 364A) Dacoity with murder (Section 396)

INDIA LEGAL August 31, 2014

41

RIGHTS/ death sentence

AP Shah Chairman, Law Commission

Justice PN Bhagwati Former chief justice of India

Justice VR Krishna Iyer Former Supreme Court judge

Shah’s questionnaire on the death penalty has sought views of lawyers, students, NGOs, academicians and individuals for a debate.

As a Supreme Court judge, Bhagwati had registered a strong protest against the death penalty and said that it had a strong class bias.

Iyer had observed in 1979 that death sentences hardly applied to corporate and white-collar criminals or those who hired murderers.

too judge-centric and depended on a judge’s personal belief against or in favour of this harsh punishment. The commission raised another query based on what Justice Bhagwati and Justice Iyer had thought, and said: “Economically and socially backward groups will always have a greater chance of being subjected to capital punishment than the rich.” Further, it asked: “Is capital punishment a form of state-sponsored violence?”

REPEAT RAPISTS The commission expanded the discussion by referring to the Criminal Law (Amendment) Act, 2013, which introduced capital punishment for the repeat offence of rape (Section 376E IPC). It asked respondents: “Should capital punishment extend to non-homicide offences?” It may be inferred that the commission wanted to know whether the extreme penalty could be awarded to a rapist who was not involved in a similar offence in the past.

It asked questions on different classifications of murder. “Is the crime of murder as severe and abhorring as an act of terrorism?”

“Is it possible to divide murders into different categories for the purpose of sentencing, such as murders punishable with death and murders punishable with life imprisonment?”

“What sort of murders would you include in the category of punishable with death?”

The commission also sought views on

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circumstances, where life imprisonment was adequate punishment for murder, but under aggravating circumstances, could be awarded death penalty. It was also anxious to know if offences punishable with death sentence could be divided into different categories, such as terror and non-terror offences. If the answer was in the affirmative, should capital punishment be retained only for terror offences? It also had queries about the current mode of execution— hanging until death. If there was no serious problem with this mode, please indicate why, the commission asked. And, could there be any other “preferable mode of execution?”

It also raised a politically sensitive issue: “Should mandatory guidelines be laid down for the governor and president to exercise powers of granting mercy in death penalty cases?”

While the center strongly contests fixing a time limit for disposal of a mercy petition by the president or the governor, the SC has ruled that inordinate delay violates a convict’s right to life and equality, besides subjecting him to double jeopardy—undergoing imprisonment while waiting for execution. It had further said that it expects constitutional authorities to decide a mercy plea “within reasonable time”. Right to seek mercy is a “constitutional right and not at the discretion or whims of the executive,” it observed and ruled “every constitutional duty must be fulfilled with due care and diligence.”

The lives of others depend on it, after all. IL

CRIME/ phoolan murder/conviction

HIRTEEN years after Sher Singh Rana, 38, pumped five bullets into Phoolan Devi’s head and stomach on a balmy afternoon outside her official residence on Ashoka Road in Delhi on July 25, 2001, he has been found guilty of murder by a trial court. Hearing the verdict in a packed courtroom, Rana demanded to know why he was convicted, while the other 10 accused were let off.

The judge told him that his conviction was on

13 years after phoolan devi was shot dead in the heart of delhi, her killer is convicted, bringing to a closure yet another case arising from caste animosity

By Ramesh Menon INDIA LEGAL August 31, 2014

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CRIME/ phoolan murder/conviction

IMMORTALIZED ON SCREEN Poster of Shekhar Kapur-directed movie, based on Phoolan’s life

PAGE OUT OF THE PAST The moment of Phoolan’s surrender in 1980

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the basis of evidence and he was free to appeal in the high court.

Ostensibly, he had taken revenge for the killing of 22 high-caste Thakurs by Phoolan in Behmai in 1981. Phoolan, dressed in her fatigues, had led other dacoits there in search of the Thakur duo of Lala Ram and Sri Ram who had led her gangrape after she resisted their advances. She got the Thakurs lined up and shot them at point-blank range. This massacre by Phoolan, who belonged to the lower Mallah caste, sent waves of shock and outrage. There was also silent admiration of her revenge, as lower castes singed under oppression. Many saw her as a revolutionary out to avenge the atrocities against the lower castes. At that time, Phoolan would hardly have imagined how this caste angularity would define her life in the decades to come.

FIGHT FOR JUSTICE Rewind to the past and you will see why a shy, uneducated Phoolan took to arms. It started in the hamlets of Sheikhpur Gurha in Jalaun on the banks of the Yamuna river.

Phoolan was a little girl protesting against cousin Maiyyadeen who was eyeing their land. She found that the cops were not on her side. Taking up arms to fight for justice seemed the only recourse left to her. In 1979, she was among the dacoits in the dreaded Chambal ravines with a rifle slung over her shoulder. She had also deserted the husband she had acquired as a child. In the ravines,

Vikram Mallah became her new lover.

Legends swirled around their romance and their fight against the upper castes.

In mid-February 1983, she publicly surrendered to the government in a high-voltage ceremony, making it to the cover of print media all over the world. It was NK Singh, the superintendent of police in Bhind, who had protracted negotiations with her to give up arms. Dressed in a khaki shirt and trousers, Phoolan, who was less than five feet tall, marched to the ceremony with a .302 caliber rifle slung across her shoulders, while a dagger hung at her waist. A red bandana tried to hold her disheveled hair in place. She surrendered her rifle to Madhya Pradesh chief minister Arjun Singh, while hundreds of flashbulbs popped. She marched to jail proudly to spend 11 long years behind bars.

She had set conditions for her surrender: her family had to be taken care of by the government and none of the dacoits who surrendered would be sentenced to death.

CATAPULTED AS MP And in a calculated move, Uttar Pradesh chief minister Mulayam Singh Yadav decided to capitalize on the euphoria raised by the Mandal Commission empowering the lower castes. He withdrew all 55 charges against Phoolan, which included 22 of murder. She was released from jail and made the Samajwadi Party Lok Sabha candidate from Mirzapur in 1996. She won. And won again

There was also silent admiration of her revenge, as lower castes cowered under oppression. Many saw her as a revolutionary out to avenge the atrocities against the lower castes. in 1999. She was the new face of empowerment of the lower castes. They forgave her for all that she had done.

And as she started living on upmarket Ashoka Road as a member of parliament, a far cry from the tumultuous days she had spent in the dry ravines, dodging police encounters, her influence grew.

DEVIOUS MIND According to the police, Rana was hatching a plot to kill her for a long time. He had checked into a guesthouse near Chittaranjan Park, close to where Phoolan lived in 2000.

He supposedly did a recce, tracing her movements in an attempt to kill her, but failed. A year later, he charted a systematic plan by getting close to Uma Kashyap, a close associate of Phoolan, so that he could get access to her residence. A few days before the murder, in a carefully crafted move to ensure that Rana had an alibi, his father withdrew his surety in a case involving his liquor shop, leading to a court ordering Rana’s arrest.

Rana sent his friend, Shravan, to impersonate him and go to jail.

On July 25, 2001, Rana and three of his aides, reached Phoolan’s house around 10.30 am when she was getting ready to go to parliament. Rana offered to drop her and she agreed. After doing so, he came back to her residence and waited for her. When she returned home for lunch, he shot her with his country weapon in the head. His accomplices, meanwhile, shot and injured her personal security officer and escaped to Hardiwar. Two days later, Rana confessed, saying he killed Phoolan to avenge the Behmai massacre and surrendered. Ironically, he became a legend among the high castes in Uttar Pradesh, who have since campaigned for his release.

The police soon figured out that Rana was no ordinary criminal. On the morning of February 17, 2004, Rana, along with Sandeep Rana, an imposter, walked out of the jail posing as a handcuffed criminal and cop respectively being taken to court. Sandeep charged Rana Rs 6 lakh to work out the escape.

First, Sandeep entered jail posing as Rana’s advocate under the name Pradeep Thakur. Then, on the fateful day of the sensational jailbreak, Pradeep came into Tihar Jail dressed as a cop impersonating Arvind, a constable from the Delhi Armed Police, as Rana was to be taken to a Haridwar court.

He did the necessary formalities like filling in a form, submitted a fake warrant, collected a diet allowance of `40, handcuffed Rana and led him to a waiting autorickshaw outside the jail. It dropped him at a bus terminal, from where Rana went to Ghaziabad and then, Ranchi. He managed to secure a passport in the name of an assistant commissioner of police from Delhi and flew to Bangladesh. From there, he went to Dubai, Iran and Afghanistan.

Meanwhile, the special cell of the police kept looking for him and waited for him to come to Kolkata to renew his passport. When he did, they nabbed him. He was back in Tihar where he was closely guarded, as the police knew he would try to escape again.

What eventually nailed Rana was the testimony of Balinder Singh, Phoolan’s personal security officer, along with forensic reports of Rana’s fingerprints on the pistol used to murder Phoolan. The court also relied on the testimony of Rana’s friends to establish that the Maruti car used in the crime was registered in his name. Strong forensic and circumstantial evidence ensured Rana did not get away.

And so, the enduring legend of the Bandit Queen lives on. IL

JUSTICE DELAYED, NOT DENIED (Above) Sher Singh Rana, convicted in the murder of Phoolan Devi

INDIA LEGAL August 31, 2014

45

COURTS/ sexual harassment

Her Cry for Justice SANGEETA MADAN, an additional judge from Gwalior in Madhya Pradesh rocked the judiciary when she recently quit saying she could no more tolerate the continuing sexual harassment by a high court judge. India Legal has the letter she wrote to the Chief Justice of India RM Lodha which we have put on our website: www.indialegalonline.com as the country needs to know. Ironically, Madan was heading the Vishaka Committee against sexual harassment. But she could not protect herself and found it best to resign from the judiciary as the only way of escape.

The Supreme Court Bar Association passed a resolution demanding that the issue be thoroughly investigated. Its president Pravin H Parekh forwarded the resolution to the CJI asking for immediate action.

By India Legal Bureau MISPLACED SENSE OF JUSTICE Madhya Pradesh High Court Bench in Gwalior, which is witness to the unfortunate turn of incidents involving a senior judge

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A WOMAN’S PLIGHT Sangeeta Madan, in her letter to the chief justice of India, describes the circumstances that forced her to resign to escape sexual harassment. Excerpts: The constitution of India gives us equal rights and the democracy in this country is upheld by its institutions, with judiciary being the prime. The citizens have faith in our judicial system and therefore seek legal redressal when anything goes wrong. However, what happens when one of the members of the judiciary itself becomes a victim of legal excesses and is summarily disposed off without any hearing, reason, chance to represent or be granted a right to be heard. We hear a lot of debates and discussions on gender neutrality and that merit being the sole criteria for career advancement and the system being sensitive and responsive to the needs of women. While in theory these platitudes does make interesting and disarming debating points, the reality is much stark, ugly and is extremely challenging for a woman to break the glass ceiling in pursuit of her career‌ I practised law for fifteen years at Delhi Courts and got selected at 2nd position in the competitive examination of Madhya Pradesh higher judicial services at district entry level in 2001 (direct recruitment from bar) with the great support and encouragement of my family and loving husband, Mr Sanjay Madan. I was posted at Gwalior. My husband, a successful professional in his own right, is one of the leading architects of Delhi and is working in a well-established corporate house. To be with us, he used to regularly commute from Delhi to Gwalior on every Friday and stayed till Monday and at times beyond. He sacrificed his own comforts so that I could pursue my career, which was also his dream. God had given me an ideal family and I was the happiest person on earth.

I took training under the guidance of Justice DK Paliwal, the then district judge.

After analyzing my performance and dedication during my training period, the Honorable Justice DK Paliwal recommended me for the regular posting. I was posted as the VIIIth additional district and session judge at Gwalior in October 2012...

INDIA LEGAL August 31, 2014

47

COURTS/ sexual harassment

Anthony Lawrence

Madan, in her letter to the CJI, claims that Justice Gangele on one occasion sent a request that he wanted to see her perform a dance on an item song.

Update to the case MADAN had tried to approach the offices of both Chief Justice of India RM Lodha and Justice AM Khanwilkar, chief justice of the Madhya Pradesh High Court to report of the misconduct of Justice Gangele but could not meet them. But after the media outburst, Justice Lodha forwarded the complaint to Justice Khanwilkar.

Thereafter, a committee of two judges comprising Justice AK Singh and Justice SR Waghmare was formed and asked to submit a report on their findings. The question being asked is whether a judge could be held culpable for his criminal acts as a private individual or whether he can claim privileges.

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Then, in the month of April 2013, I was appointed as the chairperson of District Vishaka Committee and further analyzing my excellent performance, sincerity, honesty, integrity, the Honorable High Court of Madhya Pradesh on the report of the then district judge (vigilance & inspection) assigned me additional charge of special judge under MP Dacoity Vyaparan Prabhavit Kshetra Adhiniyam in the same year, in May 2013... I understand that possibly my annual confidential report of January 2014 was excellent and outstanding.

Thereafter, in the end of March 2014, new district judge Kamal Singh Thakur was transferred to Gwalior. By this time I had completed approximately two years and eight months in the judiciary. During this period, the administrative judge, Justice S Gangele met me at various seminars and meetings and like my other subordinate colleagues I also showed equal courtesy. Suddenly he started showing more than normal interest in my work and gradually started passing colored

remarks on me. One of such incident is that on the occasion of marriage ceremony of a judicial officer on 22.2.2014, Justice Gangele passed a remark on me in the presence of my 16 year old daughter. “Sangeeta, you have an excellent work performance but you are more beautiful than your work. I do not even want to blink my eyes” as he stared at me from top to bottom and then put his hands on my back.

My 16-year-old daughter was shocked by this strange gesture. I expressed by all possible means that this gesture was unwelcome and with tears in my eyes I immediately left the party as I felt that his conduct was most shocking and disgraceful. I just wanted to avoid making a scene at that time and wanted to retrieve myself from the troublesome and awkward situation.

Thereafter, Justice Gangele sent many messages to me through district registrar, Naveen Sharma JMFC for meeting him at his bungalow. Given the previous incident, and since I learnt that Justice Gangele used to live all alone in his house, I made excuses to avoid meeting him at his bungalow.

Before this, on 8.12.2013 or 9.12.2013, the wife of CJM Gwalior, Rajendra Chaurasia called me on my landline telephone and told me that Justice Gangele is eager to see me perform dance on an item song at ladies sangeet on 10.12.2013 on his 25th marriage anniversary. I was bewildered at such a preposterous request but keeping in mind the hierarchy and situation at hand, I politely avoided the same on the pretext that I had already organized a children’s party on 10th December at my residence, on the occasion of birthday of my younger daughter.

I could smell and sense foul and malicious intentions of Justice Gangele. Call it a woman’s intuition but I was very cautious and disturbed. But with several changes in the working environment and enormous judicial work, I decided to keep my attention solely towards my work to help me get over this bad phase of life, and thus, I ignored him and kept doing my work.

Thereafter, on 11th December 2013 under obligations of official protocol I went to the 25th marriage anniversary party, but given his past conduct, I did not wish to go alone, so I decided to go along with my daughters. There

Justice Gangele found an opportunity to come close and whispered to me that “he missed the opportunity of viewing a sexy and beautiful figure dancing on the floor and that he is desperate to see the same.” ...I felt ashamed of such minds reaching positions of authority.

But to avoid any controversy, I immediately left the party with my daughters.

In April, 2014, the farewell party of Honourable Justice Saxena was organized by district judiciary, Gwalior, and all the honorable justices were invited. At dinner Justice Gangele was continuously staring at me; however much I avoided, I always found myself under his constant gaze, and thus, before he could make any advances, I left the party with my children.

On not paying any heed to the... advances and for not fulfilling the illegal and malicious aspirations of Justice Gangele, it appears that he got agitated. Thereafter, as soon as new district judge Kamal Singh Thakur and new district judge (inspection) Rajeev Sharma joined Gwalior in the month of April 2014 after their transfers, Justice Gangele started harassing me through both of above... district judges including district registrar Naveen Sharma, JMFC. Not only this, on the instructions of Justice Gangele, the inspecting district judge (inspection) Rajeev Sharma and district judge Kamal Singh Thakur started visiting my court with an unusual frequency regularly—hourly, and at times within a span of minutes, after starting of court, even before 2 minutes of lunch time, 1 minute after lunch time, 5 minutes before rising of the court but at all instances no fault could be found, rather I was on the chair doing judicial work...

Thus it became apparent that the reason for all this unnecessary harassment being inflicted by my own senior on me, was to somehow break my resolve, and make me succumb…

PAREKH URGES FIRM ACTION A letter from Pravin Parekh, president, Supreme Court Bar Association, to Chief Justice of India RM Lodha, contained the resolution that the executive committee of the Bar Association passed in its meeting on August 5:

I) The Executive Committee has perused the letter dated 5th August, 2014 addressed by former ADJ, Gwalior, and the resolution-cumproposal of the Ladies Bar Room/Welfare & Grievance of Women Lawyers Sub-Committee meeting dated 5.8.2014. The Executive Committee of the SCBA is prima facie of the view that this amounts to sexual harassment and needs to be thoroughly and efficaciously probed. The Committee is very much disturbed and anguished by the statements contained in her representation. The Executive Committee resolves to recommend to the Hon’ble Chief justice of India requesting him to take immediate action both departmental as well as directing filing of FIR. A proper and effective action ought to be taken.

II) The SCBA will render all assistance which she requires to pursue her representation or follow up action before the Court or before any other authority. IL INDIA LEGAL August 31, 2014

49

SOCIETY/ sc/st atrocities

Cast away crimes against marginalized sections have only spiked over the years, but laws to protect them are still inadequate

By Vishwas Kumar

In May this year, Nitin Aage, a 17-year-old Dalit boy, was brutally killed and hanged from a tree, allegedly by three men of the Maratha community in Kharda village of Ahmednagar district, Maharashtra. His crime?

He had dared to fall in love with an upper caste girl in his school. This dusty village, located 330 km from Mumbai, had no previous history of caste violence, but the divide between the upper and lower castes was rigidly enforced here.

Anthony Lawrence

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A

AGE’S case is not an isolated one. It is part of spiralling violence against the Dalit community. The figures bear this out.

National Crime Records Bureau (NCRB) statistics reveal that in 2011, crimes reported against Scheduled Castes (SCs) numbered 33,719, in comparison to 32,712 in 2010, a 3 percent increase.

Similarly, there were 673 cases of murder of SCs in 2011, as compared to 570 in 2010, an increase of 18.1 percent. Uttar Pradesh (UP) leads with 42.5 percent here, followed by Madhya Pradesh at 14.7 percent. Dalit women were especially vulnerable. In 2011, 1,557 cases of rape of SC women were reported, as compared to 1,349 cases in 2010, an increase of 15.4 percent. UP again led, with 25.5 percent of the total number of rape cases, followed by Madhya Pradesh (MP) with 21 percent. And how can one forget the recent rapes and hangings of two dalit cousins in Badaun district of UP? Fortunately, Scheduled Tribes (STs), another vulnerable community, fared better. A total of 5,756 criminal cases were reported against them in 2011, as compared to 5,885 in 2010, a decrease of 2.19 percent.

These statistics clearly establish that existing legal provisions to protect and stop atrocities against dalits and tribals have failed. The SCs and STs Prevention of Atrocities (POA) Act, 1989, has proved to be ineffective even 20 years after it came into existence. In a bid to get the government to amend this act in view of its ineffectiveness, around 400 dalit, tribal and human rights organizations joined hands in 2009 to form the National Coalition for Strengthening the POA Act (NCSPA).

Its efforts led to the UPA-II government introducing a bill to amend the POA Act in the Lok Sabha at the fag-end of its tenure on December 6, 2013. However, the government failed to build a consensus in parliament to pass the bill. So, it promulgated an ordinance in March 2014 to bring in new amendments.

ABORTED AGAIN Under the new Modi government, Thaawar Chand Gehlot, minister for social justice and empowerment, reintroduced the bill in

While the upper castes still control land, they need the lower castes to work there. Any refusal to do so or a demand for fair remuneration leads to clashes and violence. parliament on July 16, but unfortunately, it was referred to a standing committee.

NCSPA members ,feel that the government is adopting delaying tactics. They have appealed to Prime Minister Narendra Modi to show his trademark “decisiveness” and act on the promises made during his election campaign to “accord the highest priority for ensuring their security, especially prevention of atrocities against SCs & STs.” NCSPA’s national convener and exbureaucrat PS Krishnan, says: “We are confident that the bill will be passed in both houses of parliament once it is introduced, discussed and voted. We fail to understand why the bill was sent to the standing committee. Already, enough discussions have taken place on it by all concerned stake-holders.”

Krishnan’s confidence may not be misplaced. SCs and STs comprise a big chunk of the vote bank—25 percent—and it is highly unlikely that politicians would want to antagonize them.

But why have atrocities against Dalit continued even into the 21st century? Krishnan says that the violence is rooted in economic factors. “Caste violence has increased due to a clash of economic interests. While the upper castes still control land, they need the lower castes to work there. Any refusal to do so or a demand for fair remuneration leads to clashes and violence. A survey of a village in Haryana revealed that land holdings had not changed in the past 20 years. Lower castes there control just 2 percent of land,” he says.

It’s obvious that till mindset of the upper classes changes, no real change will take place despite legislation. IL

A fair deal The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014, seeks the following: To amend the SC & ST (POA) Act, 1989 To prohibit the commission of offences against SCs/STs and establish special courts for trial of such offenses and rehabilitation of victims To amend certain existing categories and add new categories of actions to be treated as offenses. These include: (a) Forcing an SC/ST person to vote/ not vote for a candidate in a manner that is against the law (b) Wrongfully occupying land belonging to an SC/ST person (c) Assaulting or sexually exploiting an SC/ST woman.

This includes intentionally touching her in a sexual manner without her consent, using words, acts or gestures of a sexual nature or dedicating her as a devadasi to a temple, or any similar practise. Consent is defined as a voluntary agreement through verbal or non-verbal communication (d) Garlanding with footwear, compelling to dispose or carry human or animal carcasses or do manual scavenging, abusing them by caste name in public, promoting feelings of ill-will against them or disrespecting any deceased person held in high esteem and imposing or threatening a social or economic boycott (e) Preventing them from undertaking the following activities: Using common property resources and entering a place of worship/education/health institution INDIA LEGAL August 31, 2014

51

TECH/ email investigation

CYBERMENTARY! MY DEAR WATSON

legal experts face a new challenge of unraveling critical information from emails to track down law evaders. a new software tool makes the task a cinch

By Debasish Pramanik

T

ODAY, most professional communication happens through emails. For several organizations, email is the primary method of contact between employees and the outside world. In the emerging world of knowledgedriven enterprises, wrongdoing also occurs through emails. While emails are an efficient carrier of useful messages, sometimes they hold clues to many sinister events. These include data theft, dishonoring agreements, failing on commitments, leaking confidential information, fraud, mismanagement, victimization, harassment, coercion, cheating, deception, and even infidelity.

As email becomes the ubiquitous carrier of messages, law firms while investigating will increasingly have to examine large amounts of data that may contain evidence. Advocates will have to progressively build water-tight cases based on facts extracted from emails, while using legally tenable processes. The legal fra-

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ternity will have to utilize their own resources rather than always depend on external data security consultants for the extraction of evidence from emails.

A law firm has numerous advantages in doing email forensics on their own. Selfreliance in email forensics helps law firms expand their work domain, attain flexibility of operation, deliver conclusions with accuracy and speed, retain a high level of confidentiality and achieve huge savings. Results of email forensics have shown that it is reliable, and stands examination in a court of law through a scientific process.

Niranjan Reddy, a cyber crime expert, works closely with the Pune police in their fight against cyber criminals and other crimes like uploading morphed images on the social networking sites. He says that emails open a new window in investigations, as these could be used as evidence.

However, it is essential to determine ownership of the email accounts. This could

become crucial when investigating personal email accounts. Most corporate email IDs are regarded as company’s property and the company has the power to scan incoming and outgoing emails.

If employees are explicitly informed that email searches will happen in the company, it is considered valid and does not affect privacy.

The information technology department is then entitled to search corporate emails and all that data goes through corporate proxy servers, says Reddy.

According to the Information Technology Act, this legal provision can also be used when scanning computers at cyber cafes. If the email in question is found to be sending out false or misleading information or is being sent with malicious intent or is defamatory in nature, it can attract Section 66A under the Information Technology Act. Data thefts and related incidents through email can attract Section 43 and Section 66.

Reddy says digital forensics investigation is

Systools MailXaminer sifts through email data with speed, precision and delivers explicit reports that can withstand scrutiny in courts. It is easy to intall and use. essential, along with other forms of e-discovery technology, to aid speedy investigations.

While carrying relevant messages, emails also contain bits of information that normally are not visible to the user. An informed analysis of these messages and bits of information can help unearth evidence of certain activities and behavior patterns. This in-depth search calls for a sophisticated software tool (Systools MailXaminer) that sifts through humongous amounts of data with speed and precision to find an activity or pattern of behavior by an email user. To be admissible in a court of law, the search process has to be logical and unambiguous. Apart from deciphering hidden INDIA LEGAL August 31, 2014

53

TECH/ email investigation

When MailXaminer did a Sherlock Homes DATA THEFT A telecom company was facing issues related to data theft from its premises. It found that the marketing campaigns and tariff plans were already being adopted by its competitors, who had regular access to some vital piece of confidential information.

Since the use of personal email accounts was prohibited inside the company, an internal audit was carried out to check the official email accounts of all the employees in the marketing department to ascertain if emails had been exchanged with any outsider. However, nothing was found amiss.

Systools MailXaminer helped the lawyer to rapidly search large data sets for important documents which were critical for litigation while culling large volumes of irrelevant data. The software tool recovered permanently deleted and damaged emails.

The analysis of these emails proved that confidential information was indeed getting leaked from one of the email accounts.

MailXaminer also enabled the lawyer to zero down to the source of origination of the email and the IP addresses of the machines where the email had traversed.

Further investigation revealed that the account belonged to a disgruntled employee, who used to share information on campaigns and tariff plans with his counterpart in the competitor organization. He used to delete the mails from the “sent items” folder and then clear them from the “deleted folder”. That’s why nothing could be found at the company’s internal audit.

Based on the evidences found in the recovered deleted emails, the culprit

employee was prosecuted and convicted for the misuse of confidential and copyrighted information.

INFORMATION LEAK A multinational pharmaceutical organization had to find out a possible data leak from its research and development (R&D) department. The management suspected that a 50-plus employee in the department was giving away the information, and this was possible only through emails.

To scrutinize the emails of all 50-plus employees meant surfing through hundreds of GBs of data contained in various email file formats like PST, OST, EDB, NSF, Mbox, webmail (Gmail, yahoo), etc. Going through all of them one by one and trying to discover “smoking guns” was next to impossible. And, outsourcing the digital forensic investigation to a eDiscovery service provider was not only costly but timeconsuming as well.

The lawyer collected the email archives of all suspects and used MailXaminer to dig down deeper. He performed an “Advanced Search” searching for words like the competitor company’s name in the body of the mails/attachments or for the domain name of the competitor in the recipient email address (“To” field).

He also searched for “Bank Accounts Numbers” using the “Regular expressions” based search, to find out if there was any financial transaction.

The outcome of the searches showed that a few emails which were exchanged with an employee of the competitor compa-

agenda in professional messages, email forensics is also extremely useful in certain cases of marital infidelity.

The email forensics uses a sophisticated, yet easy-to-use software tool. The design of this tool ensures swift, in-depth searches across emails in a variety of formats, within password protected, encrypted or damaged files, even if the client software is not installed on the computer used to search. The graphical dashboard interface is logical and intuitive, and the user need not have technical/programming knowledge.

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ny contained information about a copyright chemical composition. The email evidences gathered by the lawyer formed the basis of litigation when he lodged a formal complaint against the culprit.

The lawyer presented all the evidences in the court on behalf of his client and was able to prove that the accused was intentionally leaking confidential chemical compositions and formulae to a competitor, violating the company’s code of conduct and breaching the data protection protocols.

The accused was convicted of data theft and was sentenced to imprisonment under the data protection laws.

BREACH OF TRUST A boyfriend had a sneaking suspicion that his girlfriend was cheating on him. The couple was sharing a computer for many of their activities. The boyfriend had seen what he thought was an e-mail from another man in his girlfriend’s in-box. When he accessed the account, there was no such message, but he was sure his eyes did not play tricks on him. The boyfriend contacted a lawyer to find out the truth.

The web-based e-mail system was making it difficult for forensic investigators to recover deleted messages. Using MailXaminer, the lawyer discovered a series of unmarked archived files left by the e-mail program, even though they were deleted.

All these e-mails were created under a dummy account.

The compressed files revealed that there were multiple conversations, thus pointing to betrayal by the girlfriend.

The tool delivers clear, unambiguous reports of the conducted search. The results provide evidence of an event, activity or pattern of behavior from within the emails. The foolproof logic behind evidence gathering removes all subjectivity and conjecture and the results withstand the scrutiny of processes in courts.

Systools MailXaminer is easy to install and use. Anticipating that the user may not be an expert computer user, the tool is backed by a friendly and comprehensive customer support, available anytime and anywhere. IL

RIGHTS/ water supply/pune

High and Dry Pune corporation makes builders sign water affidavits, passing on the responsibility of water supply to them. flat buyers are left in the lurch

By Ritu Goyal Harish

I

t was the mid 90s and Pune was changing. Nestled in the rolling Sahyadris in Maharashtra and long known as “pensioner’s paradise” and “Oxford of the East”, this sleepy town was in a hurry to shed these sobriquets. Thus began large-scale industrialization and the ingress of IT companies that were shifting out of Bengaluru due to infrastructure exhaustion.

It was perfect. Or so it seemed, until buyers, many of them who “returned” to Pune to “settle down” woke up to a horror that they had never imagined. Despite the rivers, dams and rainfall they had no water. The PMC had either not laid water pipelines at all or had provided inadequate pipelines. Many of the fringe areas fell under “water scarcity” zones and borewells yielded nothing.

Harried residents began supplementing water by tankers, many of them private. For a few months, no one realized how much water was being purchased, but soon annual audits began throwing up astounding figures. Some large housing complexes were coughing up to `1-2 lakh a month only on water. The quality of the water was suspicious, as the PMC had no control over these private entities.

Aruna

INDIA LEGAL August 31, 2014

55

RIGHTS/ water supply/pune

What the Law (BPMC Act, 1949) says Sec 63 - Matters to be provided for by the corporation: (20) The Management and maintenance of all municipal water works and the construction and acquisition of new works necessary for a sufficient supply of water for public and private purpose

Citizens rushed to the PMC, filing applications to increase water supply and lay more pipelines. These were ignored and no reason was assigned for a very long time. Finally in 2009, the residents of a sprawling housing complex, with 55 apartments, unearthed a shocking document.

Now known as the “water affidavit”, this document was an undertaking given by the builder to the PMC that since he was aware of water scarcity in the area where he sought to construct houses, he would be liable to provide water to the complex, at his own cost. The document further stated that the builder would never ask the PMC for water and would inform the prospective buyer of the existence of this affidavit. Citing this document, the PMC began turning citizens away.

Sudhakar Velankar, consumer activist and founder of Grahak Hitavardhini, a consumer organization clarifies: “It is the statutory responsibility of the PMC to provide water to the citizens. The provision is mentioned under section 63 (20) of the BPMC, 1949 (The Bombay Provincial Municipal Corporations Act). How can they shirk their responsibility?

The affidavit is completely illegal.”

According to Shirin Merchant, advocate

and resident of a complex that has its own “water affidavit”, the PMC is on legal quicksand by entering into an agreement with the builder.

“The PMC is charging water tax without giving us water. How can they put the onus of water on the builder and take taxes?” she asks.

THE LURE Professionals with sizable incomes (especially in the IT sector) thronged to Pune, attracted by its salubrious weather and peaceful life. The demand for housing grew and the civic body, Pune Municipal Corporation (PMC) rose to the occasion. City limits began expanding, as the PMC roped in villages and gram panchayats into its fold, giving permission to ambitious builders to construct homes for the burgeoning population and an ever-rising realty demand.

There was only one problem. The PMC, in its rush to sanction plans and give building permissions realized that it did not have the funds to expand its existing infrastructure and provide utilities such as water through its existing network of pipelines. As a matter of fact, several areas, where residential complexes sprung up in 2001-2002, still do not have adequate infrastructure. But home buyers were blinded by what they saw.

WHERE BASICS GO WRONG The mindless growth of high rises in Pune ignored the fact that the city was a rainshadow area and as such deprived of water

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Pune was a land of surpluses— seven rivers, seven dams (this number has gone up since then) and 770 mm of annual rainfall (this figure has dipped since then) meant surplus water. Land was surplus and therefore cheap.

Builders offered economical, large-sized apartments, in large projects (with swimming pools, gyms etc) to starry-eyed buyers. Proximity to Mumbai made buyers compare the exorbitant realty prices in India’s commercial capital just 180 kilometres away and soon Pune became the Utopia they sought.

According to dnaindia.com report in 2009, a locality in the eastern suburb of Pune with 110 housing complexes generated an annual business of `4.5 crore for water tankers.

It is alleged that most private tankers are owned by elected representatives of the civic body who earn huge amounts through the sale of water. “The stakes are high and perhaps that is why the PMC doesn’t want to empower the buyers,” says Merchant. Her observation is not far from truth, since the PMC has failed to ensure compliance of the terms therein.

According to Merchant, there are over 4,000 – 5,000 housing complexes in Pune that have such affidavits and are suffering due to the apathy of the PMC. Yet there is no uproar or agitation or even awareness-building. Citizens afflicted by such water affidavits (procured through RTI applications) have approached the district consumer court in Pune. In most cases they have been given relief.

But most efforts are ad-hoc. Merchant had filed a PIL in the Bombay HC in 2012, challenging the water affidavits, but it was dismissed on superficial technical grounds. “The consumer court supports the residents who are suffering but these are isolated. I wanted to challenge the whole practise of taking a water affidavit,” she adds.

WHY CLASS ACTION IS NEEDED The civic body has been partisan and fraudulent in its mandatory duty to provide water to those it collects taxes from. The only way it can be put in the dock and made answerable is by collective action by citizens.

But this is easier said than done. Both Merchant and Velankar concur that Pune’s citizens lack the fervor needed to pull up the PMC as well as the builders.

Spurred by a furore created in the local media in 2009, Velankar had conducted several public meetings to apprize citizens of their rights. But his efforts did not yield any result.

Merchant also faces outright dissonance when she mentions collective legal action. “‘It’s too expensive,’ ‘the builder is very powerful’… residents give ridiculous excuses.

They’d rather pay for water than fight for their rights,” she adds.

Shyam Kuddyady is a resident of Konark Campus that was in the eye of the storm in 2009. After five years he says they are still struggling with water. “Our annual water tanker bill is more than `36 lakh.”

“There is a lack of enthusiasm and energy among citizens to take on the builder for many reasons, some of them vested,” he adds.

In his complex, a two-bedroom, lawn-facing apartment will fetch `9,000 a square foot, a whopping `1 crore for a house that has no water. Welcome to the high and dry life of high-rises in Pune. IL

Protest, key to solutions?

In a landmark case in 2005 the Bombay HC ordered the PMC to provide water to the tax-paying citizens in Bhusari Colony, Pune, for free, following an agitation spearheaded by resident Bandu Khemse.

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PHOTO ESSAY/ visually challenged

H

MIND’S

ow many of us bless ourselves for the gift of sight? We take it for granted. The 2011 Census shows that 10,634,881 people suffer from visual disabilities in India. It is a daily battle for them to live as normal a life as they can, as the world around them is not sensitive, public spaces are not disabled-friendly and there is discrimination in jobs. It is as if we just do not care. But many fight adversity to emerge triumphant and show us that there is much more to life than we think. They show us how narrow our vision is and how large theirs can be.

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EYE

the life of the blind is not as hopeless as we imagine. close your eyes and you will see their dark world. but, they manage to see light even in the darkness

By Ramesh Menon Photos by Sipra Das Inner Beauty

I

N her Mumbai home that doubles up as a beauty parlor, Reshmi Sonawave, 33, spreads a face pack on a client with care, while others wait expectantly for her attention. One of them quips that Reshmi is lucky she does not need any beauty treatment as she is stunning. When she clips the hair of another girl, she does it with precision and soon, it bounces into shape.

Later, when she boards a bus to go shopping, she demands a seat reserved for the physically challenged. The conductor turns to her rudely saying that he is no fool.

Reshmi is often misunderstood, as she has such pretty eyes. But all she sees is darkness. When she was in the XIIth standard, she suddenly saw alphabets merging as she read. And in the worst nightmare of her life, she slowly saw her sight fade away.

Genetic blindness had robbed her of sight and her world suddenly went dark.

When she wanted to get married, her parents opposed the match, as the man she loved was from a lower caste. They severed relations with her when she insisted on the wedding. It is one decision she has never regretted. Her blindness does not stop her from being a good wife and mother, she says smiling.

All the World’s a Stage

T

HEIR lives are entwined, not only on stage, but in real life. Jharna and Shamim Akhtar are members of the Blind Opera in Kolkata.

Theatre has given them a sense of freedom, identity and dignity. A thick rope on stage is a signal about how far they can go. Jharna was born blind, while Shamim, who is also a singer, lost his sight when he was three. Their marriage attracted stiff opposition, as Jharna was a Hindu and Shamim, a Muslim. But they wanted love to triumph. It did. Life is beautiful with two children and the joy that comes after their stage shows every day. Nothing ever goes wrong.

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PHOTO ESSAY/ visually challenged

Marvel Mechanic

W

HEN Riyazuddin was in his twenties, he was bitten by an insect on one eyelid.

The doctor put a medicine in his eye that was past expiry date. He lost vision in that eye. Strangely, after some time, he lost vision in the other eye too. Then started a saga of struggle.

As a very highly regarded motor-

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cycle mechanic in Bhopal, today, Riyazuddin boasts a legendary fan following, as he is sharp with his diagnosis of mechanical faults.

Once, he got a call from a client who said his motorcycle wasn’t running well. Riyazuddin asked him to kick-start it. By just hearing the sound of the engine, he knew what was wrong. Engineers from Enfield have also visited him, as he is a whiz-kid with motorcycles.

Since he is blind, people try to

The Law of Things

A

FTER a long and painful struggle with retinal degeneration, Kanchan Pamnani, has learnt to live a life the way she had dreamt. As a child, she used to have problems with sight, which got worse in spite of good treatment.

Fortunately, her parents were supportive and encouraged her. She

completed her law degree and now does her practice in Mumbai, advising clients on litigation, intellectual property rights as well as consumer issues. Pamnani enjoys life as a successful lawyer and says: “Life is meant to be enjoyed as it is. I am very positive and believe that fortune favors the brave.”

take him for a ride. Once, when Riyazuddin went to buy tyres, the shopkeeper gave him a retreated one thinking he would never know.

Riyazuddin just ran his hands over to feel the tyre and rejected it. One after the other, three more retreated tyres were rejected. When the shopkeeper finally gave him a new one, Riyazuddin knew with one touch that he had got what he wanted. It’s a cruel world, but those who are visually impaired try not to focus on it.

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That’s the Spirit

P

RAKASH Sharma was a 15-year-old bouncy girl in Pathankot; in love with life. As it was customary in those areas in the sixties to get married early, she was already engaged. An irritating eye infection took her to a doctor. The compounder mistook acid for eye drops and poured it into her eyes. She lost her sight. But her fiancée stood by her and told his distraught family that he would not break off the engagement as she could have been blinded even after marriage. He worked hard to become a doctor and then married her. Their life revolved around their two children. As he wanted to set an example to others, Prakash’s husband went in for a vasectomy. Another tragedy struck when a doctor mistakenly cut the tract that carried urine. After the botched operation, he walked around with a urine bag and battled numerous health complications. One of them was cancer and it proved fatal.

If that wasn’t enough of a blow to Prakash, her son got married and after that, did not want to look after her.

Prakash did not want to live with her daughter as she was living with her in-laws. It was tragedy after tragedy, but that did not break her spirit. Wanting to stand on her feet, she now works at a small rehabilitation center, stitching clothes. With just a meager income of `2,500 a month, she manages to chug along. All she wants in life now is not to become a burden.

Waves of Joy

I

T was joy personified when six visually challenged boys decided to visit the Digha beach in West Bengal. Well-known for its lovely golden beaches, Digha is a favourite tourist spot. They had heard accounts from those who had been there and decided it was time they sampled it for themselves. Once they got their feet into the water they were exhilarated with the experience.

When Sipra Das patiently stood in the shallow water trying to capture their playfulness, she was scared for them as the weather was rough.

They had a great vacation for four full days. It is something they will always remember. Actually, it is so easy to be happy.

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Standing on her Feet

E

LEVEN-YEAR-OLD Bitasta cannot see, hear or speak. Her supple body movements help her easily teach yoga to other children. Bitasta was found in a dustbin in the Manicktala area of Kolkata. When the police arrived to rescue her, they found three dogs guarding her. They followed the policemen all the way to the police station and left only when they found that she was being taken care of. The policemen were amazed.

She was then entrusted by the state to a railway employee who adopted her. Bitasta loves performing yoga and realizes that there are many children who follow her asanas as she performs on a manicured lawn.

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Visionary Teacher

S

MALL-POX deprived Jawaharlal Kaul of his eyesight at five. He wanted to be a teacher and worked towards it, finally setting up a school for the visually challenged in Amritsar. When he met Usha, also blind, he knew he was in love and married her. When he tried to set up a school in Gurgaon, a government official demanded speed money. Jawaharlal secretly videotaped him and used it as evidence. He is determined to fight corruption, no matter what it takes

Children of Joy

O

NE day while watching a film, Neela Dave felt her eyesight fading away. The shock came when the doctor said that she would eventually go blind due to retina pigmentation. Transporter Deepak Dave married her despite opposition from both families.

After she became completely blind, she started a nursery school in Mumbai. She finds great joy being with the children who also adore her. She counts her blessings everyday and feels the world is so beautiful. It is something that most of us never see in our lifetime.

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Numero Uno

D

ILIP Loyalka’s life begins every morning with his wife, who is a company secretary, reading out the newspaper to him. Being blind has not handicapped him in any way. Early in the morning, he starts meeting his clients in Kolkata, as he is a much-sought-after chartered accountant. He also runs a consultancy firm that his father set up, apart from owning an Indian Oil outlet in the metro. He has also authored a book on income tax that has become popular. He never complains about the increasing workload. “Knowledge never gets used up, it multiplies each time you apply it to a situation,” he says. Dilip has shown what heights one can reach even when the world you virtually see is a patch of darkness.

PHOTO ESSAY/ visually challenged

Shepherd of his Flock

B

HAGWATSINH DHABHI may be blind, but he is a perfect shepherd in Navi Aral village in Kheda district of Gujarat.

Not once has a single sheep gone missing from his flock. They always stay around him.

He listens to the sound of their movements and flowlessly directs them every day.

Music Therapy

M

USIC soothes Vishal Rao as it inspires him to look beyond his blindness. He feels his powers of concentration helps him pick up musical notes faster than others.

He loves the violin and the flute.

As he plays, he often thinks of Maya, his love, whom he plans to marry soon.

Love Blossoms

P

HYSIOTHERAPHY students Chirag and Mamta spend some moments alone away from their campus at the Blind People’s Association at Ahmedabad Love is many splendored thing...

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Special Rights

Rights of the Disabled

Education: Give free education to disabled children up to 18 years, integrate them in normal schools and set up special schools. Besides, provide informal education, vocational and life skills.

Remove architectural impediments in schools, provide suitable transport, books and scholarships. All educational institutions are to reserve at least 3 percent seats for the disabled.

Employment: The act provides for a minimum of 3 percent reservation for the disabled in government jobs.

Non-Discrimination: The transport sector should provide easy access to the disabled. Toilets and other facilities are to be modified, elevators should have Braille symbols on the buttons, zebra crossings should have engraved surfaces and red lights should auditory signals for the blind. A government servant who becomes disabled in the course of employment cannot be demoted, and must be transferred with the same pay scale and perks if the current job is not possible due to the disability

The United Nations Convention on the Rights of Persons with Disabilities is based on equality. Its core principles are: 1. Respect for human dignity and the freedom to make one’s own choices.

2. Non-discrimination.

3. Full inclusion in society.

4. Respect and acceptance of persons with disabilities.

5. Equality of opportunity 6. Disabled-friendly public buildings.

7. Respect for the right of children with disabilities to preserve their identities.

Sipra Das has been a leading photojournalist for over 27 years. She found her life change as she shot the visually challenged over a period of a decade. It is one assignment she will never forget.

Poet Gulzar said that Sipra had a heart in place of the lenses on her camera. “The blind taught me to see better, she says.

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DIPLOMACY/ indo-us ties

AFTER THE LONG WINTER

U

S Secretary of State John Kerry’s twoday visit to India for the fifth round of strategic dialogue did not result in any big bang announcement. But nobody expected it, considering that the relations between the oldest and largest democracies in the world were in the doldrums all through the second term of the Manmohan Singh-led UPA government.

This was Kerry’s first engagement with the new establishment in India. It was more in the nature of both sides sounding out each other on where they want the relationship to head. By all accounts, Kerry’s meeting with Prime Minister Narendra Modi was excellent. Modi’s emphasis on opening up of the economy to generate jobs and his talk of improving the infrastructure was exactly what the US wanted to hear. The upbeat mood was somewhat dampened by India scuttling the WTO agreement in Geneva, but otherwise the message from New Delhi was positive.

Commenting on the first encounter between the Obama administration and the new Modi government, Naresh Chandra, former ambassador to the US, said: “There was not much substance in the Kerry visit, apart from setting the stage for much more productive relations in future. The two coun-

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india’s relations with america, which were on the downturn during upa-2, witness a thaw with secretary of state john kerry’s visit, but much ground remains to be covered

By Seema Guha

tries observed the necessary formalities and the US reiterated its commitment to forging strong economic and political ties with India.

But both sides will have to work hard to get things in place ahead of Narendra Modi’s September visit to Washington.�

ALL ABOUT ARMS The US is obviously doing its bit to revive the relationship, which floundered in the last couple of years. Close on the heels of Kerry, came Defense Secretary Chuck Hagel. This turned out to be a much more substantive visit. Hagel pushed for reviving the moribund

Defence Trade and Technology Initiative (DTTI), which would result in joint production of military hardware and joint research for new technology. The Americans are keen to sell Javelin anti-tank guided missiles to India. The anti tank missile deal, if it comes through, will be worth around $2.5 billion.

But India remains skeptical about the promise of technology transfer. There will be hard negotiations on the table before any defence deal is wrapped up.

Joint defense production went nowhere when the ever-reluctant AK Antony was defense minister. Arun Jaitley, defense

ICE-BREAKER Prime Minister Narendra Modi and External Affairs Minister Sushma Swaraj with US Secretary of State John Kerry PIB

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DIPLOMACY/ indo-us ties

it will make little difference, whether it is 21 or 49 percent, unless FDI is raised to 51 percent.

The government has also set a quota for local procurement. Indian private players, however, are not really experienced in this business. It would take time for Indian companies to pick up the threads so it may be a good idea to be a little flexible here. Though the US keeps grumbling abo-ut India not buying enough from American companies, in the last 10 years, New Delhi has bought over $10 billion worth of military ware from the US.

THE BONHOMIE YEARS US President George Bush and former prime Minister Manmohan Singh, when Indo-US relations were at their best

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and finance minister in the NDA government, has already indicated that FDI in defense procurement will be raised to 49 per cent, to allow foreign companies collaborate with their Indian counterparts and set up units in India. But according to Naresh Chandra, this is not enough. He says that unless FDI is raised to 51 percent, and the foreign vendor has controlling rights, no company will be willing to sell high-end technology to India.

He explains that for any American company,

PAST BAGGAGE “John Kerry’s visit helped to repair the damage of the past and focused attention on the future, where some important forward looking deals will be announced following the ModiObama summit in September,” says Lalit Mansingh, former foreign secretary, who tracks India-US ties closely.

How much ground was covered will be evident during Prime Minister Narendra Modi’s first official visit to Washington for a summit with President Barak Obama this September. All of this is still work in progress, as the two sides begin nego-tiations on defense, nuclear power, clean energy and defense off-set. More trade and American investments will be an important component of the ties.

Much will depend on how much political baggage the BJP is able to shed from its days in the opposition and how far America is willing to accommodate India’s concerns. Ironically, the BJP-led NDA government of former prime minister Atal Bihari Vajpayee was responsible for a paradigm shift in ties with the US. The UPA took forward what the NDA had begun and transformed relations with the signing of the India-US civil nuclear deal.

The BJP, while in opposition, took a decidedly anti-American posture and was one of the main sponsors of the tough new Nuclear Liability Law, which has prevented US nuclear vendors from setting up plants in

India. So focused was the BJP then in scuttling every move of the Congress, that the party forgot that it could one day be in the treasury benches.

The US will certainly want the Modi government to amend the Liability Law, so that American companies can benefit. After all, if it were not for George Bush, India would have remained a nuclear pariah. But amending the law will open the BJP up for criticism, considering the party was vehement in its opposition to the nuclear deal signed by the UPA. Perhaps Modi will go for reinterpretation of the law, get the attorney general to look into it and give a verdict which will allow US nuclear companies to do business with India.

The law will have to be made investor friendly. That might take time.

NUCLEAR RELATIONS India will be pushing for its promised entry to the Nuclear Suppliers Group (NSG), the Missile Technology Control Regime (MTCR), the Wassenaar Arrangement and the Australia Group. All of this was part of the promise made when the nuclear deal was signed, but considering that India did little to promote American nuclear vendors, there was not much enthusiasm in Washington to bring India on board. Besides, unlike the neoconservatives who filled the Bush administration, there was much disquiet among Obama’s Democrats on India getting into the non-proliferation regimes without signing either the Nuclear Non Proliferation Treaty or the Comprehensive Test Ban Treaty. With better political relations between Obama and the new Modi dispensation, all this may gradually fall into place. In the joint statement released at the end of the strategic dialogue, the two sides noted: “Secretary Kerry reaffirmed the United States’ support for India’s membership in these groups and welcomed India’s recent decision to ratify its Additional Protocol with the IAEA. The two leaders supported an early conclusion to these efforts.”

VISA TANGLE The visa issue is high on India’s list of priorities. If changes are made to accommodate India’s IT professionals, it will go a long way in reassuring New Delhi that the US is serious

When it was in the opposition, the BJP had been rigidly opposed the nuclear deal. Now, the Modi regime will have to rework its stand on nuclear liability. about improving ties with India.

Speaking of visas, it is now evident that as prime minister, Narendra Modi will not let the fact that he was not allowed entry to the US after the 2002 Gujarat riots affect ties. He cannot afford to let the past haunt his vision for the future. Modi, like other senior leaders of the BJP, realizes the importance of improving ties with the US, which, despite talk of its waning powers, remains the world’s only super power.

“India needs to get its relations with the US right. Once this is done, the rest will follow,” says former Indian ambassador to Washington Ronen Sen. “It gives us leverage and elbow room at the global stage,” he explains. Whether it is China, Pakistan, the neighbors or the EU, the signal goes out from the US, which still remains the world’s super power. It is therefore important for New Delhi to put all its efforts to get things working with the US. The hope that India’s economy is turning around and may in the next few years accelerate to at least seven to eight percent, is reviving American business interests. “The US business is again seeing India as a trillion dollar economy and is eyeing the huge market India provides,” Mansingh says.

“Prime Minister Modi wants to kick-start growth; he knows that without foreign investments jobs cannot be created. He understands the imperatives perfectly and with a brute majority in Lok Sabha he may be able to do much more without being hampered by criticism of coalition partners,” the former foreign secretary explains.

The Americans are looking to invest in India’s infrastructure and speed up defense ties. The mood on both sides is optimistic, but India will have to show flexibility. As Naresh Chandra advises: “The important thing is for India to realize that the US likes to cut deals; we have to give some to get some.” IL INDIA LEGAL August 31, 2014

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AND THE STRUGGLE BEGINS Palestinians leaving their home in the aftermath of the 1948 war between Israel and Palestine

a book that describes how the zionists beat their ploughshares into swords

By Jagdish Sagar

THE INVISIBLE I n April, 1897, Herbert Bentwich, a successful, prosperous and very British solicitor (and the author’s great-grandfather) arrives in Palestine, one of a group of wellheeled British Zionists on a luxurious exploratory visit. They are taken ashore by Arab stevedores, attended to

by Arab staff, guides, horsemen, servants, travel (in great comfort) through Arab towns and villages, but the Palestinians are invisible to them. Says Shavit of his ancestor: “…I understand him perfectly…he is motivated by the need not to see. He does not see

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because if he does see, he will have to turn back.”

Shavit does see. His account of Lydda (now Lod) is impossible to forget.

This little Arab town with its two mosques and cathedral prospers in proximity to friendly Jewish settlers. Dr Lehmann, an idealistic German Jew, builds the Lydda Valley youth village as “an example of what Zionism should be: a salvation project ‘providing roots to the uprooted’ but untainted by colonialism.” He befriends the gentry of Lydda, attends to the survivors of an earthquake, opens his dispensary to Arabs, inoculates

Another future prime minister, Yitzhak Rabin, issues the written order: “The inhabitants of Lydda must be expelled quickly, without regard to age.”

Jewish soldiers make eight Palestinians bury seventy bodies, then shoot them too.

Tens of thousands of Palestinians, not allowed to take their motor vehicles, agree to leave, walking in a long column with what they can carry. Women are searched and humiliated, Jewish soldiers fill jute sacks with their necklaces, earrings, silver and gold.

And now Shavit surprises us: “… the choice is stark” he says: “either reject Zionism because of Lydda, or accept Zionism along with Lydda.” He chooses the latter: “They did the dirty, filthy work that enables my people, myself, my daughter and my sons to live.” (Live, that is, as Israelis.) He approves Moshe Dayan’s speech at the funeral of an assassinated Jewish officer in 1956: “Let us not cast blame today on the murderers…they have sat in the refugee camps of Gaza and have watched how, before their very eyes, we have turned their land and villages, where they and their forefathers dwelled, into our home…We are a generation

PALESTINIAN Arab children, teaches his students to respect the Arabs and their culture and invites Arab performers to his youth village’s festivals.

In 1948, Lydda suspects nothing. It does not see that Zionism has become, in Shavit’s words, “a movement of cruel resolve, determined to take the land by force”. Even as war breaks out, Lydda remains untouched.

Then it happens. Dr Lehmann disappears from the narrative, but those participating in what follows include his students. As the Jewish army takes the town, civilians are massacred. Asked what to do with the Arabs, “Ben Gurion waves his hand: Deport them.”

of settlement, and without the steel helmet and the gun’s muzzle we will not be able to plant a tree and build a house… Let us not drop our gaze…or else the sword shall fall from our hands and our lives will be cut short.”

Shavit revels in a heroic side to Israel that was, before its later military successes, exemplified in the early Kibbutzes: “And as the plows begin to do their work, the Jews return to history and regain their masculinity…they transform themselves from object to subject, from passive to active, from victims to sovereigns.” That is what Israel was and is all

My Promised Land: The Triumph and Tragedy of Israel

By Ari Shavit Scribe Publications, 2014

Price: $28

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Syria BOOKS/ ari shavit

West Bank

Volatile Coexistence

Saudi Arab

Israel Israel

Jordan

Egypt

about (but note the paean to “masculinity”, odd in this day and age but with a chilling resonance from the first half of the twentieth century.) The driving force of Zionism was the desire felt by European, secular and usually atheistic Jews—people like Bentwich— for a sense of secular Jewish nationhood, to feel pride in a perceived identity. Shavit sees absorption in a secular West, what his ancestor declined, as a threat to this (purely secular) identity. Intermarriage with non-Jews he views with concern as “rampant”: had Bentwich stayed in Britain, his descendants might have been happier, but they wouldn’t have been as Jewish.

T

o be sure, a genuine need for refuge from persecution had a legitimate place in the Zionist project. The Palestinian “Homeland” did indeed accommodate refugees; many came escaping persecution and the holocaust that followed, and they did heroically build a new life for themselves, something impossible not to applaud. But they were a drop in the bucket and could not have been much more: as Shavit tells us, Palestine/Israel was hardpressed to take in just 750.000 immigrants between 1945 and 1951.

Today Israel’s population includes over six million Jews and over two million others, mostly ill-treated Arabs. But over half that Jewish population is from the Middle East, Asia and Africa; those from West Asia and North Africa would not have had to flee their homes if Israel had never been created; indeed, with their Arabic culture many did not initially feel at home in Israel. Others came, and come, for reasons of identity or

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economic opportunity: like Indian Jews. A nation, after all, is an imagined community.

Israel has built a dynamic, entrepreneurial, creative and in some degree hedonistic society far removed from the life and ideology of the kibbutzim. “As Jews, we never had it so good.” But, says Shavit, Athens must keep something in it of Sparta. A liberal Zionist, he disapproves of the post-1967 settlements driven by religious fanatics claiming the rest of Palestine on the strength of the Bible; he believes the settlements must be vacated, yet cannot believe that doing so could help to bring about peace. Israel, for him, is surrounded by implacable enemies, and must face them down for all time to come. He vocally supports Netanyahu on Iran: but would anyone expect, in the face of Israel’s own nuclear weaponry, that others would not follow? Shavit himself does not seem to think so, only that the dreadful moment must be put off.

There is something missing here. Must everyone around Israel—even the Palestinians—really be an enemy forever, for all time to come? Does even a balance of nuclear weapons necessarily lead—contrary to all experience—to war? Or do even liberal Zionists cling, somewhere deep inside, to a paranoid glory of permanent struggle? Why is there no thought of healing wounds, any kind of magnanimity? Has Israel, in the longer perspective of history, any future without reconciliation? To me the most revealing passage in this book is the experience of an Arab-Israeli lawyer—a friend whom Shavit characterizes without embarrassment as “so Israeli”—in back-channel talks between senior Palestinians and Israeli peaceniks. The Palestinians wanted Israel to pay reparations to build the future Palestinian state “just as the reparations paid by Germany to Israel were utilized for national projects”. At which “the peaceniks went berserk” and the talks collapsed.

Shavit starts his book: “For as long as I can remember, I remember fear, existential fear.” He is reasonable enough to place the blame for that where it belongs. But not once does it occur to him to apply that Israeli shibboleth, “existential threat”, to the Palestinian condition: that remains invisible. IL

BRIEFS

Yelp for weed

Poster blues for Aamir

THE New York Times (NYT) became the first major mainline newspaper to run its first ever fullpage marijuana ad, just weeks after it called for legalization of the drug in the US. The “Just Say Know” ad in the Sunday edition of the NYT, taken out by Leafy, a legally operating Seattle-based Cannabis company, is a pun on the popular 1980s anti-drug slogan. The ad reviews a website for cannabis strains. It

refers to the recently introduced Compassionate Care Act, a bill that allows New York residents with certain medical conditions to use medical marijuana under supervision.

As one of the most authoritative media outlets in the US, NYT’s support for the legalization of marijuana is a huge boost to campaigners.

Sexual harassment at work THE first woman chief justice of the Delhi high court has issued guidelines for dealing with sexual harassment complaints at the workplace.

The guidelines, endorsed by Chief Justice G Rohini, were recommended by the Court’s Committee Against Sexual Harassment Of Women At Workplace. The chief justice has also appointed DS Bhandari as nodal officer for dealing with sexual harassment complaints. The high court has also assured that all proceedings emanating from the complaints made under Sexual Harassment of Women at Workplace Act, 2013, shall be dealt with confidentially. The guidelines, however, are categorical about not entertaining “anonymous” complaints leveling allegations of sexual harassment.

Dearth of judges THE higher judiciary in India is plagued by a unique crisis. High courts across the country are finding it hard to get credible lawyers for the elevation as high court judges, if vacancies in the high courts are any indicators. There are very few recommendations from the Supreme

HC VACANCIES Allahabad PUNJAB & HARYANA KARNATAKA MADRAS CALCUTTA ANDHRA PRADESH BOMBAY RAJASTHAN

70 21 17 16 16 15 10 12

Court collegiums on appointing judges.

There are at least 270 vacancies across 24 high courts. The situation is worse in the subordinate judiciary, where there are more than 4,300 vacancies.

The problem faced by the SC collegiums in recommending names for judgeship was the lack of availability of senior advocates with integrity!

BOLLYWOOD actor Aamir Khan has landed in a legal tangle. The star has been booked for obscenity for posing almost nude for publicity of his forthcoming film PK. Bollywood’s Mr “Perfectionist” poses in the buff in the poster, with an old tape-recorder as a prop covering his front. Manoj Kumar, a lawyer, has moved the court against the star, charging that the “obscene” poster would incite “sexual violence and encourage “obscenity”.

Bonded by love, hounded by law

IT is a case of love-turned-sour and a knotty re-union. The case underscores the legal perils shadowing teenage consensual sex. A girl from Mumbai recently filed a case of rape against her boyfriend of teen years when she felt cheated by him.

The girl, a Gujarati, then had a change of heart and married the Marathi boy, saying that she still loved him. But now the married couple is finding it hard to get the case quashed.

The couple has realized that a rape charge is not easy to shake off and cannot be settled out of court, with or without the court’s consent. Nor can courts quash it simply at their urging.

A bench of Justices VM Kanade and PD Kode, hearing the case, expressed concern at the young couple’s fate and said it wished to look at the larger picture instead of just quashing the case.

INDIA LEGAL August 31, 2014

75

CONSUMER WATCH

How can buyers enforce their rights and seek remedial measures Food for thought OVERCROWDED compartments and inferior quality of food come to mind when we think of Indian railways. But have you had an experience of the rudeness of the staff?

Amlan Rakshit, who was travelling from Chennai to Howrah on the Corromandal Express, found that the pantry staff was overcharging for the food and not abiding by the menu and price list. Moreover, the travelling ticket examiner (TTE), mentally harassed the passengers by making them sit with unreserved passengers.

Rakshit then filed a complaint with pgportal.gov.in/grievance.aspx, the government’s public grievance portal. The forum ruled in favor of Rakshit by directing the railways to pay a compensation of `50,000 with an additional `400 per day in case of delay.

Illustrations: Udayshankar

Claim your rights INSURANCE companies are often persistent in getting potential customers to buy insurance policies from them.

But the very same people turn a deaf ear to their customers when the time comes to settle their claims.

Harpreet Singh Oberoi, who was working with Mirasu Marketing, was covered under a personal accident policy by Oriental Insurance Co. When Singh met with an accident, he suffered 50 percent disability, following which he lodged a claim of

76

August 31, 2014

`1,85,000 along with bills, prescriptions, slips, payment receipts etc.

However, when the insurance company failed to respond to his claim due to lack of documents and his employer refused to be part of the contract, Singh filed a complaint in the Jalandar District Forum.

The forum directed the insurance company to pay `1,85,000 and his employer to pay 9 percent interest, `5,000 as compensation and `3,000 as costs.

Delayed dues ALL is not well with SpiceJet Airlines.

Its flight SG 419 plying from Mumbai to Delhi was delayed by almost five hours owing to a cockpit signal, which warned that the AC would not work. The delay meant that besides the long wait, passengers also bought food and drinks which fetched SpiceJet `15,000 while airlines are required to serve the refreshments free if the flight gets

delayed by over two hours. Harsh Surana, one of the passengers, complained about the delay and lack of its intimation by the crew.

The Directorate General of Civil Aviation (DGCA) directed the airlines to refund the full fare to all its passengers and ordered a “special engineering audit of SpiceJet” to be completed within 15 days by the DGCA’s technical team.

In-flight shopping says no to `

Consumer debate THE National Consumer Disputes Rederssal Commission in its recent judgment said that between trading in shares and purchase of shares as an investment are different and ruled that those who invest in shares are consumers.

Arpita Reddy paid `1 lakh by cheque and `1.40 lakh in cash for buying the shares of Venve Light Metal Ltd. The company acknowledged her receipt for the money but did not furnish the shares or the money. Reddy lodged a complaint in the Hyderabad district forum,

seeking a claim of `2.40 lakh, but it got dismissed. She appealed to the Andhra Pradesh Commission, which however, directed the company to pay `2.40 lakh along with 9 percent interest from date of payment and `2,000 as costs.

It also imposed a fine of `10,000 on the company.

The company moved the national commission on the grounds that buying of shares is a commercial transaction and therefore outside the ambit of Consumer Protection Act. But the commission upheld Arpita’s right as a consumer.

MANOJ K Mishra was travelling to Bangkok from Delhi with his family on IndiGo on June 5, 2014.

On board, he bought masala tea and snacks and offered to pay them in Indian rupees.

However, the cabin crew refused, saying they only accepted US dollars or Thai baht. Mishra filed a complaint with IndiGo, saying that such behavior amounted to disrespect of the Indian currency.

IndiGo responded that as per the provisions of the Foreign Exchange Management Act (FEMA), 1999, and Regulation 3 of the same act, a person cannot take or send out of India, Indian currency notes beyond `10,000. Therefore, even if one is travelling on a domestic airline which operates on international routes, he has to pay for the in-board services in US dollars or in the currency of the destination country only.

INDIA LEGAL August 31, 2014

77

IS THAT LEGAL?

A TO Z OF LAW legal terminology made easy for you. concluding part of the series

N

egligence: It is the failure to exercise care towards another person, which a reasonable person is expected to exercise. It can be through an act or an omission: either by doing something that one is not supposed to, or by failing to do something that one is duty-bound to, and thus causing damage.

For example, Thomas is a contractor, who doesn’t take the requisite safeguards while constructing a playground. Upon completion, some of the swings

78

August 31, 2014

collapse due to shoddy construction and two children sustain minor injuries. Thomas has been negligent and is liable to legal action.

O

biter Dicta: Latin for something which is said “by the way” or “in passing”. It is any judicial statement which does not refer to or hold relevance for the question of law being decided. It has no binding value as precedent and may only be used as

persuasive in future cases. Any comment made by the judge, not directly relevant to the question of law at hand, are obiter dicta.

P

rima Facie: A Latin term meaning “at first sight”. It refers to anything which is apparent from the face of the matter, i.e. from the first examination or presentation of facts. For example, prima facie evidence against a person in a criminal case would lead to conviction unless rebutted.

Q

uasi: Latin for “as if ”. A prefix that refers to something that is not fully as it appears to be, but might exercise some functions “as if ” they were the actual thing.

Examples include quasi-judicial, quasi-criminal and quasi-contract.

R

es Ipsa Loquitur: A Latin phrase which means a thing that “speaks for itself ”. It refers to a set of facts that do not require further proof or corroboration to lead to a particular judgment or result. For example, a load of heavy bricks has been placed on the roof of an underconstruction building in Noida. Kunal, a pedestrian walking by, is injured when a few bricks that falls due to not being secured properly.

Even though no witnesses saw the load of bricks falling, it can be satisfactorily established from the circumstances that the builder is responsible for Kunal’s injury.

S

pecial Leave Petition: A residual power of the judiciary, which allows the Supreme Court to grant special leave to appeal against any judgment of any court or tribunal. It is to be used as a discretionary power, in cases where a significant question of law is involved or gross injustice is being done.

means that any judgment on a case involving a larger sum of money is outside its jurisdiction and therefore ultra vires.

V

icarious Liability: A principle which holds the master responsible for any acts of the servant or employee, which are carried out in the course of employment. For example, in an operation gone wrong at Varun Med Hospital, the hospital is vicariously liable for the negligence of the surgeon, and must compensate the victim.

W

rit Petition: A petition to the high court or the Supreme Court seeking the issuance of one of the five writs that such a court is capable of issuing. For example, if your family member is arrested arbitrarily by the police, you may file a petition to the high court for a writ of Habeas Corpus.

X Y

: A form of signature on a contract by an illiterate person.

T

ort: Derived from the French for “wrong”, a tort is any civil wrong or wrongful act which results in harm to anyone. It is distinct from criminal wrongs and includes such things as negligence, trespass and defamation.

outhful Offender: A term used in American courts for juvenile offenders: offenders who are below the age of majority and thus must be treated differently by the courts and often have separate facilities and prisons.

U

Z

ltra Vires: Beyond the power or jurisdiction of a particular authority. If an authority oversteps its boundaries, such action would be illegitimate by virtue of being ultra vires. For example, the district consumer forum has a pecuniary jurisdiction of `20 lakh. This

ealous Witness: A witness who is clearly biased towards the party that calls him or her on for evidence and gives a very enthusiastic testimony against the other party involved. IL —Compiled by Akshat Agarwal INDIA LEGAL August 31, 2014

79

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1. Born and bred, hale and hearty, but home and ......

A: safe B: happy C: dry D: easy 2. His boss is as greedy as a ......

A: pig B: dog C: grocer D: policeman 3. You do NOT sleep like a. ....

A: baby B: top C: log D: rhino 4. NOT said when drinking.

A: Cheers!

B: Down the hatch!

C: Bottoms up!

D: Breathe again!

5. What does French expression “au fait” mean?

A: Ill-fated B: Fully informed C: Goodbye D: Already done 6. What's the meaning of “ignominious”?

A: Shameful B: Glorious C: Inflammable D: Ignorant 7. A “drifter” is an ....... person.

A: aimless

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

By Mahesh Trivedi

B: overzealous C: ambitious D: avaricious 8. If you have a purple heart, you are ......

A: kind B: jovial C: brave D: timid 9. “Painted woman” is a euphemism for a ........

A: danseuse B: prostitute C: poetess D: wife

14. Opposite of zenith.

A: Peak B: Nadir C: Hell D: Earth 15. Express ignorance by exclaiming this.

A: Bag that!

B: Holy smoke!

C: Big deal!

D: Search me!

16. An old car A: Hatchback B: Sin-bin C: Banger D: Pussy-wagon

10. One who is fond of eating is a .......

A: glutton B: gourmet C: gourmand D: greedy gut

17. Proverb: Marry in haste and repent.

A: at leisure B: soon after C: too soon D: for ever

11. Have you heard of internet slang ‘TBH’?

A: To Be Honest B: Travelling Back Home C: Think Beyond Home D: Thighs Bosom Hips

18. Diamond anniversary is completion of ..... years.

A. 60 B. 15 C. 75 D. 125

12. Tick the mis-spelt word.

A: Accidently B: Plaintiff C: Receipt D: Superintendent

19. Which body part is affected in otitis?

A: eye B: ear C: throat D: nose

13. A Sisyphean task is .........

A: enjoyable B: easy C: great D: endless

20. To acquiesce is to...

A: pressurize B: accept C: implement D: conceal

ANSWERS

1. Dry 2. pig 3. rhino 4. Breathe again!

5.Fully informed 6. Shameful 7. aimless 8. brave 9. prostitute 10.gourmand 11. To Be Honest 12. Accidently 13. endless 14.Nadir 15.Search me!

16.Banger 17. at leisure 18. 75 19.ear 20.accept

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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 August 31, 2014

81

Photos: UNI

PEOPLE / shades of happiness

POSING WITH JAWS This 3D painting at HK 3D Museum in Hong Kong helps many carry home pictures that amuses their dear ones.

BUNDLE OF JOY It is happiness personified when a beaming father holds up his overjoyed toddler in New York.

CELEBRATIONS GALORE More than 4,000 students took their graduation parade to the streets in Ljubljana breaking into a mass dance and then freezing the memory with selfies.

GAY AND HAPPY Lesbian motorcycle Club “Dykes on Bikes� painted the town red by kick-starting the San Francisco Gay Pride Festival in California

CHINESE DDLJ? The breath-taking view of the canola flower field in Kuandian county, located near the China-North Korea border, inspires some to capture that moment of sheer happiness.

ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU ice n Pr atio 0 nI vit `5

INDIA L EGAL Markandey Katju: The story behind the accusation

Why Ukraine and Gaza matter to you

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August 15, 2014

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