Final india legal 31 august 2015 double spread smallest

TEESTA’S BAIL:

What’s the political significance?

16

ABORTION AFTER 20 WEEKS: Is it ethical?

10

NDIA EGAL I L

www.indialegalonline.com `100

August 31, 2015

INDEPENDENCE DAY SPECIAL

FREEDOM Can we keep it?

Legal luminaries including Chief Justice HL Dattu and Law Minister Sadananda Gowda speak out 20

HL Dattu

Sadananda Gowda

HR Bhardwaj on injustice; Pravin Parekh on law and common sense 24

Delhi High Court Bar Association vs district bar associations: Why the barricades? 18

Politics: Who paralyzed parliament? 34

INDEPENDENCE

SPECIAL

LETTER FROM THE EDITOR

INDERJIT BADHWAR

THE REAL INDEPENDENCE DAY MESSAGE OU do not—if you pride yourself as a Republic and a democracy—take lightly an online petition drive signed in less than a week by 15,000 voters, including the nation’s top industrialists and opinion-makers exhorting lawmakers to allow parliament to function.

What has created this outpouring of public sentiment—the paralysis of parliament caused by an ungainly display of partisan political one-upmanship characterized by filibustering, abusive accusations, unsubstantiated ad hominem attacks on the floor of the House and in full public view, thanks to a wise decision by the Speaker to allow a public telecast of the proceedings—is also the subject of a serious analytical report by Political Editor Bhavdeep Kang in this issue.

To dismiss this reaction, as some opposition leaders have done, as a creation of “capitalist leaders” out to shove anti-labor and anti-working class laws down the throats of an unsuspecting public, is ideological hogwash that the man on the street can no longer be fooled into accepting blindly.

Believe me, in today’s India even taxi and autorickshawallahs and small shopkeepers understand what “GST” is.

Small wonder, then, that on the eve of Independence Day so many people have disparaged the blocking of parliament through the rowdy tactics of MPs. Debate on matters like GST has given way to disruption. Change.org, which pro-

Y

motes social reform and transformation of attitudes through online petitions is mostly non-partisan. This time, thousands have responded to Change’s internet appeal to free our prime legislative body from the shackles of partisanship over an issue demanding decisive action, using GST as an example.

This editorial is neither for nor against GST. That’s another issue. And it was predictable that the Rajya Sabha would end the monsoon session sine die without passing the GST bill. But the online petition—even though it supports GST and argues forcefully in its favor—is worth quoting, not necessarily because I am in agreement with its provisions but because of the larger sentiment it provokes on the need for informed debate and discussion and the responsibility of parliamentarians to their constituents and to the nation.

Petitioner Sunanda Mehta, a citizen, who promoted the petition on the web, says that as a taxpayer “my hard-earned income is funding these parliament sessions. In the fortnight since the session has started, not one law has been passed.

“I recently read this in an article that over `260 crore of our money will be lost to the disruptions!

This is shocking.

“When the BJP was in Opposition there was a logjam and now that the Congress is in opposition, there is another logjam. The common man is the one suffering and our hard-earned money is being wasted by our parliamentarians.

INDIA LEGAL August 31, 2015

3

INDEPENDENCE

SPECIAL

LETTER FROM THE EDITOR

People want their democracy to function, fairly, without fear or favor, and institutions to run within the parameters of civility and public accountability.

“The GST is one of the most critical reforms for India. The bill will not only create an efficient market and lower costs but help generate lakhs of new jobs.

“It will also introduce a simpler and a much more transparent system of paying taxes by reducing scope of manipulation by tax authorities. This in turn will boost revenue collection and help bring down the prices of goods.”

RECKLESS LAWMAKERS? The monsoon session of parliament was paralyzed by an ungainly display of political oneupmanship

4

August 31, 2015

W

hether GST would achieve these goals is a matter of debate. My grouse is that thanks to the disruption we never got to hear that debate. It is for this reason and not because of any “capitalist conspiracy” that so many eminent personalities joined in the signature campaign and not all of them are BJP or even Modi followers. They include Anu Aga of Thermax, herself an elected member and, according to The Times of India, “a known critic of Modi in the post-

2002 riots”.

The list included notables like Dr Naresh Trehan, and Dr Ashok Seth, and academicians, such as Ashok Jhunhunwala of IIT, Madras and IIM Ahmedabad’s Piyush Kumar Sinha. The industrialists are an eclectic lot: Rahul Bajaj, Infosys founder Kris Gopalakrishnan, Pawan Munjal of Hero Honda, Adi Godrej, Kiran Majumdar-Shaw, GVK’s GV Sanjaya Reddy and GE’s India chief Banmali Agrawala.

Their plaintive cry for action may have fallen on deaf ears this monsoon session, but it is a public signal that people want their democracy to function, fairly, without fear or favor, and their institutions to function within the parameters of civility and, most of all, public accountability.

I think this is the real Independence Day message from the people to their government and politicians will ignore this at their own peril. The message also implies that talking of “change” and garnering votes as was the case in the last election will no longer be the barometer for voting.

“Change” must actually happen rather than evanescing as an electoral slogan along with other promises once the balloting is over.

The current crisis in our nationhood, as I contemplate on our history this Independence Day, is that we have stuck to tired dogmas, shibboleths, hand-medown British institutions and a hopelessly flawed law-andorder approach to nation-building. Our democracy appears in bursts—during elections and balloting, when people really feel a sense of empowerment— and then, slumbers until the next burst of voting. In the interregnum, we are ruled either by the executive’s dictatorial behavior or by the legislature’s paralysis. Meanwhile, the Rule of Law is maintained by an overburdened and imperfect judiciary.

Thomas Jefferson was an American founding father, the principal author of the Declaration of Independence, and the third president of the United States. He was hugely admired by our own founding

fathers, particularly Nehru and Ambedkar.

Jefferson is quoted as having said: “The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”

H

erein lies the key to freedom, good governance and liberty. Tie down your government—particularly the executive—with the chains of the constitution so it cannot behave with caprice and malice towards its citizen.

This is more feasible in countries where there are countervailing checks and balances through a true separation of powers between the executive, the legislature and the Judiciary. It was this concept that ended the monarchical style of governance in the US after her independence.

But in India, under our parliamentary system, the whole power structure is weighted towards the executive. The legislature is a slavish extension of the executive. A minister who heads a ministry and thereby, the executive functions of the bureaucracy, is also an MP or MLA. When the executive and legislature fuse in this fashion, how can accountability be enforced? How can a minister sit in judgment of himself if he is

involved (in his executive capacity) in corruption that arises from his simultaneously functioning as the chief executive of his department and controlling the bureaucrats under him?

Even at the lower levels, our executive fuses with the judiciary as well: members of the executive (the Indian Administrative Service) perform both administrative as well as magisterial functions, ruling not only the districts but also the lower courts as district magistrates.

It’s a convenient system. It suits all. It allows for cozy relationships to develop. It weighs the Indian democratic system down in favor of an executive dictatorship where babus interpret and enforce and adjudicate the law while legislators—who control the babus—enjoy the power of parliament.

When we contemplate the petitions and the logjam in parliament with which I began this essay, we must think of a serious national conclave in which reform touches every aspect of national life—including a serious restructuring of our Republic.

IDEA OF GOVERNANCE (From above left) Thomas Jefferson’s views on how executive should be treated was admired

by Ambedkar and Nehru

editor@indialegalonline.com INDIA LEGAL August 31, 2015

5

AUGUST 31, 2015

VOLUME. VIII

ISSUE. 24

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Business Editor Shantanu Guha Ray

INDEPENDENCE SPECIAL

My idea of India

20

Legal luminaries speak about their dreams for India. Also, India Legal’s tribute to lawyer-leaders of the freedom struggle

Political Editor Bhavdeep Kang Associate Editor Meha Mathur Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar

Safe & sound

STATES

To vote is our right…

40

…but Gujarat makes it mandatory, sparking a debate on how far a government should go, reports KAUSHIK JOSHI

In whose interest?

MP has brought in a new bill to curb PILs at a time when the chief minister is facing heat over the Vyapam scam. RAKESH DIXIT probes SUPREME COURT

New lease of life By allowing a 14-year-old girl to abort her fetus in the 24th week despite the MTP Act not allowing it, the apex court has shown its humane side, says SHOBHA JOHN

OWNED BY E. N. COMMUNICATIONS PVT. LTD.

August 31, 2015

38

Delhi has become the first state to notify the Delhi Witness Protection Scheme 2015. But how will it be implemented when the police comes under the center, asks AJITH PILLAI

For advertising & subscription queries sales@indialegalonline.com

6

34

As settling scores became the priority for political parties during the monsoon session of parliament, no worthwhile business or debate could be conducted, says BHAVDEEP KANG LEGAL EYE

Vice-President (Ad-Sales) Vivek Mittal-09810265619

A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi834002.

LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001.

PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023.

ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001.

Washed out

Plot thickens Gujarat judiciary is in the midst of a controversy as two retired judges write to acting chief justice of the high court against a scam in plots allotment. A report by RK MISRA

COURTS

A rap for CBI The intelligence agency draws flak from Bombay High Court and Supreme Court for the way it’s hounding Teesta Setalvad and Dayanidhi Maran. A report by AJITH PILLAI

Territorial wars Delhi High Court and district court lawyers spar over pecuniary jurisdiction, reports BHAVDEEP KANG

10

Who gets the lion share?

Despite court rulings, Gujarat refuses to transfer Gir lions to MP’s Kuno Palpur. This has led to increased incidences of man-animal conflict, reports RK MISRA

16

44

Death penalty In the wake of Yakub Memon’s hanging, ABHAY VAIDYA takes a look at how Israel has realized the futility of capital punishment, while SRIVIDHYA expresses anguish at media sympathy for him ENVIRONMENT

Vulnerable Indians

HUMAN INTEREST

64

A Meerut teacher creates a welcoming environment for HIV+ children, investing all his savings on them. DEEPA GUPTA takes you on a “campus visit”.

CASE STUDY

The power of literacy

68

A charitable trust brings new light into the lives of a marginalized section in Gujarat by setting up a well-equipped school in a remote village. A report by KAUSHIK JOSHI HEALTH

Body, mind and soul

18

60

RAKESH BHATNAGAR reports on a worrying study that says Indians are more prone to mobile radiation than westerners because of their low body-mass index

A home with positivity

50

48 54

FOCUS

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd and printed at Amar Ujala Publications Ltd., C-21&22, Sector-59, Noida. All rights reserved. Reproduction or translation in any language in whole or in part without permission is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd . Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd . The Publisher assumes no responsibility for the return of unsolicited material or for material lost or damaged in transit.

All correspondence should be addressed to E N Communications Pvt Ltd .

POLITICS

74

DEEPA GUPTA explores different types of spiritual healing that complement modern medicines to cure chronic ailments Cover Design: ANTHONY LAWRENCE Cover Photos: UNI/JS STUDIO

INDIA LEGAL August 31, 2015

7

INDEPENDENCE

SPECIAL QUOTE-UNQUOTE

“This is also a recognition of those things considered non-issues that we had been trying to convert into issues.”

—Anshu Gupta, the founder of NGO Goonj and one of the winners of Ramon Magsaysay Award 2015, in The Times of India

“The promise in the Preamble to the Constitution of India, even after 68 years of Independence, has remained only as a hope and a dream. We have to strive hard, to make the promise in the Preamble a reality.”

— Justice K Sreedhar Rao, Chief Justice (Acting), Gauhati High Court, speaking to India Legal on the occasion of the Independence Day

“I mentioned the ‘Hindu militants’ term in my report. Even if I change my view, I can’t rub it off. I am not a politician.”

—Justice (retd) Manmohan Singh Liberhan, the head of the committee that submitted the report on the Babri Masjid demolition in 1992, in The Indian Express

“We had an emperor on 27th of May 2014.... But the fact does remain, the shine seems to be wearing off.”

Aruna

— Industrialist and Rajya Sabha member Rahul Bajaj on the performance of the Modi government, to NDTV

"Gajendra Chauhan is Satyajit Ray of BJP! He deserves his Pather Panchali in FTII !"

—AAP leader Ashutosh, on Twitter

“If he can stay indefinitely, why do I need to apply for permission [to stay] every year.”

—Bangladeshi writer Taslima Nasreen, on Pakistani artist Adnan Sami, permitted to stay indefinitely in India, in The Hindu

“We should not punch below our weight or over our weight. We must punch proportionately.”

—National Security Advisor Ajit Doval, on the deterrence policy followed by India, vis-à-vis Pakistan, in The Times of India

VERDICT “Laws are spider webs through which the big flies pass and the little ones get caught.”

— Honore de Balzac, French novelist and playwright

8

August 31, 2015

“The Gandhi family is an exception. They don’t toil in the sun to earn their bread....

What do they know about khoon pasiney ki kamai (hard-earned money)?”

—HRD Minister Smriti Irani, reacting to Rahul Gandhi’s charge that Sushma Swaraj’s family received money from Lalit Modi to keep him out of jail, to NDTV

INDIA LEGAL August 31, 2015

9

INDEPENDENCE

SPECIAL

SUPREME COURT/ Abortion Ruling

Humane option A recent judgment which allowed a raped girl to abort her 24-week fetus is being lauded for its sensitivity. What are the medical and psychological reasons for allowing this termination?

By Shobha John

I

T was a heart-rending case evoking horror and sympathy. But it terminated in a landmark judgment which showed the humane side of the legal system and should be emulated by courts elsewhere in India.

It dealt with a 14-year-old girl in Gujarat, raped by a doctor who was treating her for typhoid. He allegedly sedated her and committed the heinous act. But she kept quiet about it till it was legally too late for an abortion. The doctor was later arrested. Though the parents approached a sessions court and later, the Gujarat High Court, pleading for abortion, both rejected it, saying the law had to be obeyed. The matter finally reached the Supreme Court, where a two-judge bench allowed her to terminate her ill-timed pregnancy despite the fetus being 24 weeks old.

Anthony Lawrence

10

August 31, 2015

MANY CHOICES The case riveted the nation and set the ball rolling for future judgments of this nature. In this case, abortion was untenable as the Medical Termination of Pregnancy (MTP) Act, 1971, allows it only up to 20 weeks. The Supreme Court bench of Justices Kurian Joseph and Anil R Dave had to decide whether to take a humanitarian view or a legal one. Should they be pro-life or pro-choice?

What about the girl’s right to personal liberty as guaranteed under Article 21 of the constitution? As the debates went on, the baby reached 24 weeks even as the distraught young mother refused the option of giving

the baby up for adoption. Torn between these two choices, the court asked a team of doctors, including a psychologist, whether MTP was the best answer. Thankfully, the doctors said yes and the baby was aborted.

So how did the girl’s lawyers manage to work around the MTP Act? By stressing on the “mental health” of the mother and the grave injury caused to it by the rape. While the physical well-being of the mother is important, so is her mental state to bear and look after the baby, which, in this case, was absent. Her father, a cycle mechanic, was reported as saying: “She would keep crying. I couldn’t console her….When I saw her situation, I felt like committing suicide.”

Pulkit Sharma, a clinical psychologist who has worked at VIMHANS and Swanchetan, an NGO which deals with rape victims, explains the trauma faced by a young girl who becomes a mother out of rape.

“In such cases, the mother will be mentally fragile and feel no bond with the child.

Instead, there’ll be feelings of revulsion and hate, and these will have a fallout on the child too as he/she battles feelings of rejection and anger and becomes anti-social,” he says.

“The mother will see the child as an extension of the rapist. Even if she gets married later, the husband and his family may not want the child. The Indian social milieu is such that the mother often has no say in such situations,” he adds.

SAFER OPTION Dr Duru Shah, director of Mumbai-based Gynaecworld, a fertility clinic, and part of the ethics committee of the International Federation of Gynecology and Obstetrics (FIGO), says the Supreme Court took the right decision as this was a safer option, medically.

Shah explains that a 14-year-old girl is not a complete adult and is unfit for childbirth.

“She is still getting taller, the pelvic bone structure is still getting formed and the hips are getting wider. If she delivers a child at 14 years, there will be damage to tissues in the pelvic and vaginal region and chances of the baby also getting distressed. Allowing her to abort the child now was definitely a safer option as later on, she would have had to opt for a Caesarian delivery,” she says.

NEEDLESS DEATH (Left) Savita Halappanavar, 31, died of pregnancy-related complications in Ireland in 2012 as Irish law prohibited abortion under any circumstance

Incidentally, Shah is also the Chair of the Anti-violence against Women Cell of the Federation of Obstetric & Gynecological Societies of India.

Explaining the medical reasons for the legal framework of the MTP bill, Shah says that till 12 weeks, it is easy to remove a fetus through vacuum aspiration. “But after 12 weeks, the skeleton of the fetus starts growing and vacuum aspiration can be traumatic, causing a lot of bleeding. So if an abortion has to be done between 13-20 weeks, it is like a mini-delivery. The gynecologist gives the woman medications which make the uterus contract and she delivers. As there is pain, she is given painkillers,” says Shah.

While in India, the legal limit for abortion is 20 weeks, other countries have varied time limits (See Box “World at Large”). While in the UK, abortion is legal up to 24 weeks of pregnancy, the UK Abortion Act also prescribes specific situations, including mental health of the pregnant woman, to allow abortions after this time.

Even the US and China allow termination after 20 weeks in case of severe fetal

Doctors say that in some cases, pregnancies have even been terminated at 33 weeks when the baby is severely malformed or some infections have reached the fetus from the mother.

Such terminations should be done ethically.

INDIA LEGAL August 31, 2015

11

INDEPENDENCE

SPECIAL

SUPREME COURT/ Abortion Ruling

PRO-LIFE BRIGADE (Left) An anti-abortion rally in Washington in June 2014

“We have the interest of the girl in our mind. But we also know there is a life inside her.

We want to do something for her and that is why we are contemplating a way out.”

World at Large

—The Supreme Court bench of Justices Kurian Joseph (L) and Anil R Dave (R) JS Studio

abnormalities or to protect the mental or physical health of the mother.

NEEDLESS DEATH On the other hand, there is Ireland, a Catholic country, where abortion is illegal unless it is to save the life of the mother.

Ireland’s abortion laws came in for criticism with the death of Savita Halappanavar on October 28, 2012. Savita, an Indian dentist, suffered a miscarriage when she was some 17 weeks pregnant. She sought medical attention and treatment, but her requests for an

Time Factor Some of the circumstances under which medical termination of pregnancy is allowed: Where the length of the pregnancy

does not exceed 12 weeks Where the length exceeds 12

weeks but not 20 weeks Where the continuance of the preg-

nancy would involve a risk to the life of the pregnant woman, cause grave

12

August 31, 2015

injury or affect mental health Where there is substantial risk that if the child is born, it would suffer from such abnormalities as to be seriously handicapped Where any pregnancy is alleged by the pregnant woman to have been caused by rape, and therefore, can constitute grave injury to her mental health If the women is below 18 years or is mentally ill, then with the consent of a guardian

abortion were refused. Instead, she was told that because the fetus had a heartbeat and her life did not appear to be in danger, it was not legal. On October 23, she collapsed and eventually died on October 28, 2012, due to septicemia.

Halappanavar’s death led to numerous protests and finally, Ireland passed the Protection of Life during Pregnancy Act 2013, which provides for a woman’s right to an abortion if her life is at risk.

Shah says that in some cases, pregnancies have even been terminated at 33 weeks when the baby is severely malformed or some infections have reached the fetus from the mother. “Such terminations can be done as long as they are done ethically without causing pain to the fetus and there is a solid reason to do so,” she says.

ETHICAL GUIDELINES In fact, the International Federation of Gynecology and Obstetrics (FIGO), has laid down ethical guidelines for induced abortion for non-medical reasons. These, it said, can be ethically justified in cases of incest or rape or when the mother’s life is threatened by a serious disease. When properly performed, it is, in fact, safer than term deliveries.

FIGO’s ethical guidelines say that:

UNI

Governments and other concerned organizations should make every effort to improve women’s rights, status, and health, and should try to prevent unintended pregnancies by education, by counseling, etc.

A woman’s right to autonomy, combined with the need to prevent unsafe abortion, justifies the provision of safe abortion.

Most people, including physicians, prefer to avoid termination of pregnancy. Such a doctor has an obligation to refer the woman to a colleague who is not opposed to inducing termination.

Very careful counseling is required for minors. When competent to give informed consent, their wishes should be respected.

Otherwise, the advice of the parents or guardians and when appropriate, the courts, should be considered.

After appropriate counseling, a woman has the right to have access to medical or surgical induced abortion, and the health care service has an obligation to provide such services as safely as possible.

LANDMARK JUDGMENT Dr Ranjana Kumari, a women’s rights activist and director of the Delhi-based Center for Social Research, too lauds the Supreme Court judgment. “This is a land-

mark judgment and all courts in India should take cognizance of it. After all, a woman has a right over her body. Plus, in this case, the girl was violated, so there is all the more reason to allow this abortion,” she says. Each case should be taken on its merit and as long as it is medically safe, such abortions should be allowed.

However, she does not support late termination of a pregnancy just because it is being done in other countries. “Our health delivery systems and medical technology are not so robust and there could be chances of mishaps. The present MTP law of abortion till 20 weeks is good enough,” she stressed.

Meanwhile, the MTP (Amendment) Bill, which has provisions for extension of the legal limit for abortion from 20 weeks to 24 weeks, is still being formulated. Many doctors feel that if certain abnormalities are found in the fetus even after 20 weeks, MTP should be allowed till 24 weeks because by then, these abnormalities (eg cardiac problems) can be clearly seen.

While this case of the 14-year-old rape victim may be an open-and-shut case for most of us, the law of the land has the final say. But rare and uplifting judgments such as this one show that, at times, humaneness takes precedence over everything else. IL

According to the Center for Reproductive Rights, more than 60 percent of the world’s population lives in countries where induced abortion is permitted. The situation in various countries: Where abortion to save a woman’s life is prohibited (25.64% of population): Afghanistan, Bangladesh, Brazil, Egypt, Iran, Sri Lanka Abortion done to save a woman’s life (13.75%): Argentina, Israel, Jordan, Malaysia, Pakistan, Saudi Arabia Abortion done on socio-economic grounds (21.58%): Barbados, Finland, the UK, India, Japan Without Restriction (39.22%): Australia, China, France, Norway, Singapore, the US

INDIA LEGAL August 31, 2015

13

INDEPENDENCE

SPECIAL SUPREME COURT

Exam under a cloud

Powers of remission misused

ITHOUT disrupting the ongoing selection process, the Supreme Court put on hold the final result of the Delhi Judicial Services (DJS) Examination 2014. It ruled that the result would depend on the decision arrived at by the court on a PIL. The PIL, while citing irregularities in the checking of answer sheets in the DJS (main) examination, wanted it to be annulled by the court. The petition was filed by the Center for Public Interest Litigation.

The court also asked the Delhi High Court Registrar General to respond to

HE apex court felt that the time had arrived to curb the absolute power of remission under CrPC, enjoyed by states and UTs for lifers who had spent more than 14 years in jail. It made the observation in the light of the Tamil Nadu government’s decision to release seven convicts in the Rajiv Gandhi assassination case.

The court felt the power was being used injudiciously to free a death-row convict whose sentence had been commuted to life imprisonment.

The court felt that states and UTs should be

W

the allegations made in the PIL. The results of the DJS (main) examination, declared in May this year, were startling. For example, only 15 candidates emerged successful out of the 659 who appeared; some successful candidates were said to be family members of judges of the high court; and there was an insinuation that judges of the high court took part in deciding the question papers and checking answers sheets, etc.

Even the Union law minister wanted the matter probed by the chief justice of the Delhi High Court.

T

approached the apex court complaining that parliament ignored natural justice by not giving him a chance to explain his point of view. But the court was not convinced that the resolutions, passed in March, had violated his rights, as he was free to speak out his mind again. It pointed out that Katju’s uninhibited comments against national leaders on a public platform had invited the resolutions and parliament was well within its rights to criticize them formally.

No relief for Chautala T was the end of the road for former Haryana chief minister Om Prakash Chautala as far as getting legal relief against his conviction and prison term in the teacher recruitment scam was concerned. The apex court saw no reason to question the verdict given by the Delhi High Court in the case and dismissed Chautala’s petition.

The high court had, in March, supported the 2013 trial court order, holding

I

14

August 31, 2015

Benefit of age HE existing provisions of the Juvenile Justice Act stood in good stead for a 55-year-old murder convict who was serving life imprisonment in Agra jail.

Ram Narain was released from prison after he was able to convince the Supreme Court that he was still a minor at the time of committing the offense.

Narain had already spent 10 years in jail before he was set free. He had been convicted and awarded a life term for shooting dead a person almost 40 years back.

His fervent appeals for leniency on the ground that he was then a minor, were earlier quashed by the trial court as he could not produce proper evidence. Later, the Allahabad High Court and the Supreme Court also did not entertain his pleas. The apex court even struck down his review petition in 2004.

However, Narain did not lose heart and managed to gathered proper documentary evidence to prove that he was not even 16 years at the time of the murder.

His latest plea before the Supreme Court earned a positive response. It accepted his age certificate as proof of his claim.

The court also took cognizance of the fact that the Juvenile Justice Board had also ruled him as a “minor” in 2013.

According to the Juvenile Justice Act, cases involving minors are tried by the Juvenile Justice Board.

T

Katju snubbed for comments HE apex court didn’t buy the argument of Justice Markandey Katju that parliament had not followed the principles of natural justice while passing two resolutions denouncing his “objectionable” comments against Mahatma Gandhi and Subhash Bose. It also expressed displeasure over his comments.

Katju had called Gandhi a “British agent” and Bose “a Japanese agent” on his Facebook page in March.

The former Supreme Court judge had

T

Chautala, his son Ajay Singh and 53 others guilty in the scam. It had also upheld the 10-year jail term awarded by the trial court to Chautala, Ajay and three others.

Chautala and Ajay had appealed against the orders of the Delhi High Court. All of them are serving the jail term as per the high court’s order.

The apex court, however, allowed them to seek parole from Delhi High Court on medical grounds.

barred from using the power in the “rarest of rare” cases, where the higher court or constitutional authority had converted a death penalty into life sentence. It mulled over a law wherein states and UTs must approach the judge of the trial court, who delivered the death sentence, for permission to set free the concerned convict. In case the request was turned down, the matter of remission would be decided by the apex court.

However, the Tamil Nadu government felt that SC was encroaching upon the executive’s right.

Need to curb social media

Misleading figures on children AKING exception to disparity in figures related to missing children presented in parliament and the apex court, a bench slapped a fine of `25,000 on the Ministry of Women and Child Development.

The court was made aware about the glaring inconsistency through a PIL from NGO Bachpan Bachao Andolan, which pointed out that the minister of women and child development had earlier claimed in the Rajya Sabha that around 80,000 children could not be found from 2013 onwards, whereas the latest affidavit submitted by the ministry in the court said that only around 25,000 children had gone missing since 2013.

The court also took the center to task for shoddy implementation of Juvenile Justice (Care and Protection of Children Act, 2000).

T

HILE justifying its order to annul the draconian Section 66A of the Information Technology Act, the Supreme Court observed that the parliament needed to enact a law so that social media and the internet is not misused to malign people.

The court was hearing a clutch of complaints from senior advocates who cited instances of baseless information being circulated on social media to defame them.

Section 66A was annulled by the apex court in March after it found that the law was “vague” and “unconstitutional” and was being used by the government to crush dissent, even if it was constructive.

The court was looking into the issue whether criminal defamation law needed to be upheld in the light of false and malicious campaigns being run on social media.

W

— Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL August 31, 2015

15

INDEPENDENCE

SPECIAL

COURTS/ CBI

Rapped Twice Within a week, the CBI has been pulled up twice, once by Bombay High Court and then, by Supreme Court. This has put a question mark on its partisan role when handling politically motivated cases

By Ajith Pillai EASY TARGETS (Above) Activist couple Teesta Setalvad and Javed Anand have been hounded for their role in bringing the perpetrators of the Gujarat riots to book

16

August 31, 2015

I

t was indeed a harrowing Independence Day week for the CBI when its lack of autonomy came into focus. First, on August 11, the Bombay High Court rejected its plea for custodial interrogation of activist couple Teesta Setalvad and Javed Anand, in a Foreign Contribution Regulation Act (FCRA) violation case.

While granting anticipatory bail to them, Justice Mridula Bhatkar made some critical observations on a citizen’s right to dissent in a democracy and why it should not be held against him.

“A citizen may conduct social activities and may have a different point of view, which may not be liked by the government.

However, in a democratic state, a citizen may have his or her point of view,” the judge

said, puncturing the CBI plea and underlining the fact that it is the duty of the state to protect the democratic right to dissent.

The CBI had argued that custodial interrogation was necessary because of the serious nature of the charges against SetalvadAnand. The CBI’s case was that Sabrang Communications and Publishing Pvt Ltd (SCPPL), run by the activist couple, received funds to the tune of $ 2,90,000 from the US-based Ford Foundation in violation of FCRA to carry out anti-national activities and for fomenting communal tension.

But lawyers representing the couple alleged that they were being targeted because several convictions following the 2002 Gujarat riots were made with the assistance of documents made available to the courts by the Sabrang Trust. They argued that the probe against the couple,

initiated after the NDA came to power, was instituted for that reason and was politically motivated.

T

he case against Teesta and Anand is far from over. The CBI in its plea had said that allowing the couple to be free during the investigation would constitute a security risk. Additional Solicitor-General Anil Singh, who appeared for the agency, cited a letter of the Gujarat government, which said that SCPPL was a “proxy organization” cultivated by Ford Foundation with “some longterm plan”. He contended that the Foundation was “stoking religious tensions” and keeping the “2002 riot incidents alive”.

The court’s observations on whether activism of this kind, which fails to find favor with the government of the day, impinges on the sovereignty of the nation were revealing.

“Prima facie, I am unable to find any threat to the sovereignty and integrity of the state or a threat to its security or economic interest,” Justice Bhatkar noted, while rejecting CBI’s plea that the couple were “agents” working at the behest of vested foreign interests.

The court also observed that it had to study the prosecution’s plea in an objective and dispassionate manner. “If the prosecution says it is a snake, the court has to distinguish if it is a snake or a rope. Even if it is a snake, the court has to further see if it is a poisonous or a nonpoisonous snake. And even then if it is a poisonous snake, the court has to decide if it can be fatal,” Justice Bhatkar said in her order.

A

day after the Bombay High Court rejection, the CBI received another rap on its knuckles; this time from the Supreme Court. A three-judge bench questioned the CBI’s motives for contesting the anticipatory bail of former telecom minister Dayanidhi Maran. “Political vendetta and other things should not come in. There may be

people who want to fix him (Maran). There are all sorts of things going on in politics,” the bench reportedly observed.

Maran is being investigated for telephone misuse when he was a minister. An FIR registered in 2013 alleged that he installed 300 high speed BSNL lines in his house in Chennai, which were used commercially by the family-owned Sun TV network. The telephone misuse amounted to a loss of `1.70 crore to the exchequer. “It is a case of telephone misuse. Why do you want to arrest him? Why do you want him in jail.... Is there some other purpose to arrest him? The CBI should not arrest people for political vendetta,” the bench observed and stayed Maran’s arrest till the case was disposed off.

The bench also had some tough posers for the CBI. “In the NRHM (National Rural Health Mission) scam in Uttar Pradesh, `8,000 crore of public money has been siphoned off. But not a single arrest. And here you want to arrest for `1 crore in phone bills.

Are you trying to get him?” it asked.

These observations put a question mark on the CBI’s partisan role when handling politically motivated cases. Does the agency, as has been alleged in the past, selectively act at the bidding of its political masters or does it really assess a case on its merits alone? IL

CBI FACES HEAT (Above L-R) Justice Mridula Bhatkar of Bombay High Court took the agency to task on Teesta Setalvad issue; The Supreme Court said Dayanidhi Maran should not be victimized for political vendetta

INDIA LEGAL August 31, 2015

17

INDEPENDENCE

SPECIAL

COURTS/ Pecuniary Jurisdiction

For and against What the DDCBA and DHCBA have to say about the Delhi High Court Amendment Bill (2015), which increases the pecuniary jurisdiction of district courts from `20 lakh to `2 crore.

Winning Move

Anthony Lawrence

With the Lok Sabha passing the Delhi High Court Amendment Bill (2015), the pecuniary jurisdiction of district courts has gone up from `20 lakh to `2 crore, giving litigants easier justice

By Bhavdeep Kang

T

HE standoff between the treasury and opposition in the monsoon session of parliament notwithstanding, a critical piece of legislation found its way through the Lok Sabha and on to the statute books. The Delhi High Court Amendment Bill (2015), which increases the pecuniary jurisdiction of district courts from `20 lakh to `2 crore, was a small step for parliament, but (potentially) a giant one for litigants.

Justice, famously laggard in a country which boasts some three crore pending suits, might just pick up her pace a trifle, at least in Delhi.

Delhi’s district bar associations celebrated the move by calling off their hunger strike (to demand enactment of the Bill), but they aren’t quite home and dry yet. The Delhi High Court Bar Association (DHCBA),

18

August 31, 2015

which has fought against the Bill for three years, is by no means ready to throw in the towel. And what happens when the Commercial Courts Bill, 2009–which gives the Delhi High Court pecuniary jurisdiction of `1 crore plus and is pending in the Rajya Sabha— becomes law?

ADVANTAGE LITIGANTS Prima facie, the legislation is a win-win for litigants. Some 12,000 pending cases, being heard by just five benches in the Delhi High Court, will now be distributed between 11 district courts. The distribution will be geographical, with cases pertaining to a particular locality being transferred to the district court there. This should whittle down travel time considerably.

“Delhi’s district courts are equipped with the infrastructure to handle these cases. For

litigants, it will be a big saving of time, money and energy,” observed Saket District Bar Association president Vinod Sharma. The jubilation in the district courts was in stark contrast to the gloom in the high court.

DHCBA secretary Abhijat Bal said: “The lives of tens of lakhs of litigants will be in a state of utter chaos if this Bill is given effect before the Commercial Courts Bill is enacted.” All avenues, including challenging the Bill as being ultra vires of existing laws, were open to the DHCBA, he observed, adding “The struggle will go on.”

Certainly, the two Bills must be reconciled. If the Delhi High Court now no longer has original civil jurisdiction up to `2 crore, then the Commercial Courts Bill must be suitably re-drafted. The Bombay and Calcutta civil courts already have original jurisdiction of up to `1 crore.

ARBITRARY MOVE The DHCBA has questioned the passage of the Bill on the grounds that a Delhi High Court committee recommended revising the original pecuniary jurisdiction of the district courts to `50 lakh in 2011. A year later, a full court of the high court decided to make it `2 crore. “The Bar was not consulted or taken into confidence. Nor was the logic or reasoning behind the move made clear to us. It was arbitrary,” argued Bal. The DHCBA pointed to statistics clearly showing that more than 85 per cent of the civil cases in the high court were valued at less than `2 crore. In effect, this means that

Delhi District Court Bar Association (DDCBA) “Will make justice more accessible”

Delhi High Court Bar Association (DHCBA) “Defeat of rationale, rank populism”

District courts in most states have unlimited original pecuniary jurisdiction

High Courts in Chennai, Delhi, Mumbai and Kolkata have original pecuniary jurisdiction

Disposal of cases expedited, as they will be distributed among the 11 district courts

Disposal of current cases will be delayed, as fresh notices will have to be served after transfer

Pendency of cases in Delhi High court: more than 60,000

This pendency is due to Delhi High Court operating at 60 percent of its sanctioned strength

Litigants will get door-step justice

Geography does not matter in a city-state; easier to get to the high court than say, Rohini district court

Cost of litigation will come down with more competition among lawyers for clients

Costs will go up as new advocates will have to be hired

Increase in pecuniary jurisdiction merely reflects the successive hikes in circle rates

Cannot be reconciled with the Commercial Courts Bill, 2009, which gives the high courts original jurisdiction in commercial cases of `1 crore and more

the original civil jurisdiction of the high court would be severely limited. It would become primarily an appellate court, adding one more step in the judicial process, clogging the system with appeals and costing the litigants time and money. “I cannot understand the locus standi of the DHCBA in this matter,” said Sharma. “What is the problem?

Regardless of enhancement of original civil jurisdiction of district courts, the Delhi is the appellate court.”

Enhancement of the pecuniary jurisdiction of the Bombay civil courts is believed to have had a positive impact in terms of speedy listing, hearing and disposal of cases. On the other hand, in Uttar Pradesh, it took a Ballia civil court 77 years to dispose off a land dispute. And the very oldest pending suit is said to be a Shia-Sunni dispute in Varanasi going back to 1878! IL

“Delhi’s district courts are equipped with the infrastructure to handle these cases. For litigants, it will be a big saving of time, money and energy.”

—Vinod Sharma, president, Saket District Bar Association

INDIA LEGAL August 31, 2015

19

INDEPENDENCE

SPECIAL

GUEST COLUMN/ HL Dattu

“The Individual Makes the Nation Shine and Helps Maintain Constitutional Ideals” W

oodroo Wilson, the 28th President of the United States of America, reflecting on law’s role and purpose in a society said:

20

August 31, 2015

JS Studio

“The life of a society is a struggle for law.

Where life is fixed in unalterable grooves, where it moves from day to day without change or thought of change, law is also, of course, stationary, permanent, graven upon the face of affairs as if upon tables of stone.

But where life changes law changes, changes under the impulse and fingering of life itself. For it records life; it does not contain it; it does not originate it. It is subsequent to fact; it takes its origin and energy from the actual circumstances of social experience.

Law is an effort to fix in definite practice what has been found to be convenient, expedient, adapted to the circumstances of the actual world. Law in a moving, vital society grows old, obsolete, impossible, item by item. It is not necessary to repeal it or to set it formally aside. It will die of itself,—for lack of breath,—because it is no longer sustained by the facts or by the moral or practical judgments of the community whose life it has attempted to embody.”

India, at 68, is a Socialist, Secular, Democratic Republic, where we cherish our national goals as individual responsibility. Today, no group has a greater responsibility. It is but the individual who pours in his tireless efforts to make the nation shine and in helping maintain the Constitutional ideals which we have revered.

shaping the road to development of our nation. The story runs as follows:

“A king arranged for the marriage of his daughter with the prince of a neighboring kingdom. He required large quantities of milk for the marriage. Hence he appealed to his people to contribute their day’s production of milk into a huge vess we celebrate Independence Day, it is heartsel with a narrow opening for pouring ening to see a culture of constitutionalism the milk. After sometime, the vessel was take firm roots in the country. True the “basic brought to the kitchen and the contents structure doctrine”, which began with the Kesavapoured in another vessel to cook necesnanda Bharati case, is a clear instance of reinstatesary edibles to feed the royal wedding ment of rule of law by protection of the inviolable valguests of the prince. To the shock of the ues inscribed in the Constitution. The right to life (Article 21), the anti-arbitrary king, it was found that there imperative binding on the ExeFor a legal order to was only water and no milk. cutive and the Legislature (Mathought that the flourish, it requires Everyone neka Gandhi’s case), the right to other person would have free legal services while a person not only the poured the milk, so his water is in custody (Hoskote case), the will get unnoticed. leadership of access to justice by way of judicial Consequently, the royal wedreview of the Executive and lawmen and ding guests, who could not be Legislative excesses (Article 13 administrators, but treated with proper food, got and 141), the hermeneutic jurisalso the responsive insulted and infuriated, prudence of reading into the which resulted in the disrupnational laws the great principles participation of tion of the royal wedding. A of International instruments, the the citizenry. innovation and expansion of war broke out, in which the Public Interest Litigation vesting kingdom of princes and its people were in the court the authority of a sentinel on the qui vive defeated and destroyed. Likewise, we the and other paramount principles have become integral citizens think individual misdeeds may to the Basic Structure Doctrine as also to the basic not affect the nation, it shall in the long fabric of our national sentiment. It gives me immense run prove to be fatal. Therefore, it is the joy and satisfaction that in our country, constitutional duty of every citizen to address himself theory and practice is not restricted to be produced as to how and what he could contribute to and consumed by the constitutional haves. Since the the efficient and improved working of beginning, we are steadily gravitating towards bringour constitution and the institutions creing it to the tasks of caring for the constitutional ated under the sacred document.” have-nots (in Babasaheb Ambedkar’s idiom the

A

atisudras).

For a legal order to flourish, it requires not only the leadership of lawmen and administrators, but also the responsive participation of the citizenry. At this moment, I am reminded of a perfect story to illustrate the contribution of citizens and how they can aid in

Rule of law does not remain a sovereign prerogative anymore and we must pledge today to utilize the vehicle of rule of law to make justice a viable dream for each one of us. IL

—The writer is chief justice of India

INDIA LEGAL August 31, 2015

21

INDEPENDENCE

SPECIAL

GUEST COLUMN/DV Sadananda Gowda

“My Vision is of an Equal-Opportunity India”

Anil Shakya

I

N 1947, people questioned the very champion of non-violence and “Ahimsa”, at the existence of a nation called India. same time, it would not shy away from standWinston Churchill remarked, ing up for what is right and just even if it has to “India is a geographical term. It is use force. This can happen only when we are no more a united nation than the self-sufficient in the defense sphere and when Equator”. But today we flourish. My our armed forces are proud of the technology vision is of an equal-opportunity of scientists.

India, an India where everybody regardless of In my India, there would be no room for religion, caste or creed gets equal opportuni- gender discrimination and both the genders ties to grow, prosper and develop themselves. would be made partners in the growth of the My vision is of an India where there is no country. Everybody would be accorded the divide between people; most importantly, I same respect and be provided with the same dream of an India where opportunities for growth there is no urban-rural I want an India with and well-being. divide, where there are as I want an India which is equal facilities for many opportunities in the as proud of its daughters as rural sector as there are in it is of its sons. The India of all, without any the urban sector. dreams would invest urban-rural divide, my I dream of an India where special effort in the educaa balance between tion of its daughters as there is a balance between agriculture and industry, an investing in the education agriculture and India where there is a fair of a girl child means eduindustry, distribution of land between cating the whole family. these two spheres, an India My India would be a self-sufficiency in where farmers are not nation of healthy people. defense, no gender While a disease-free councoerced to give away their lands against their wishes, discrimination and try might be a utopian conbut also an India which facilcept, efforts have to be excellent health itates the setting up of indusmade to provide medical facilities for all. tries for growth. facilities to everyone in the My vision for India is one country. My India would in which it is capable of defending itself, both have primary health centers, hospitals, specialagainst external threats as well as internal dis- ty hospitals and super-specialty hospitals disturbances. An India where everybody is made a tributed in all parts of the country so that partner in the growth story, an India where people can find a cure to their problems everybody feels proud of its heritage and its closer home. diversity. My India is one which stands up as a My cherished dream is that India should be united entity, an India where there are no mur- a nation of unity and prosperity. I wish my murs of secession from any part of the country. nation to be digitally transformed with faciliIL It would be able to defend itself against any ties of E-governance in all sectors of life. form of external threats. While it would be the same benevolent India which has been the — The writer is union law minister INDIA LEGAL August 31, 2015

23

INDEPENDENCE

GUEST COLUMN

HR Bhardwaj

SPECIAL

“Nothing rankles more than a brooding sense of injustice”

I

NDIA’S independence was secured by leading freedom fighters under the guidance of Mahatma Gandhi. People sacrificed everything during the freedom struggle. Gandhiji said that we will secure independence only through truth and non-violence. He had followers who were very bright and did not work against each other.

Whatever they did was with full dedication. That is why India achieved independence on the midnight of August 14, 1947. This is when Jawaharlal Nehru made his famous “Tryst with Destiny” speech. Sardar Patel was the iron man who integrated India by merging the princely states into the union territory.

Maulana Azad was the education minister who laid the foundation of Indian education.

India is celebrating its 68th year of Independence. It has become one of the most powerful democracies in the world. Elections are taking place regularly. It is time we take stock of our achievements and pay a rich tribute to our founding fathers.

The Indian judiciary has also grown.

Look at India’s politics and the power of judicial review. It is the rule of law that fertilizes democracy. To uphold the rule of law, people must have access to justice. Nothing rankles more in the human heart than a brooding sense of injustice.

Judicial independence is the foundation of administration of justice. The doctrine that no man shall be a judge of his own cause or a cause in which he has interest implies that even the small-

24

August 31, 2015

est interest or bias of a judge disqualifies him to be the judge in that case.

Judges have to conduct themselves in full public gaze. Any conduct that tends to undermine public confidence in the character, integrity or impartiality of a judge must be eschewed.

The principle that judges should stand fair between parties who appear before them is as old as the history of courts and edicts designed to ensure judicial impartiality.

The primary task of the judiciary is to ensure enforcement of the rule of

Judges are always in public gaze.

Any conduct that erodes public confidence in the character, integrity or impartiality of a judge must be eschewed. law. In order to achieve this, the state appoints judges who have professional ability, integrity and a sound temperament. In the US, judicial independence has developed into a set of institutions that assure that judges decide according to law.

The five components of judicial independence comprise the constitutional protections that judges in the US have—the independent administration of the judiciary, by the judiciary, judicial disciplinary authority over the misconduct of judges, the

manner in which conflict of interest is addressed and the assurance of effective judicial decisions. These five components combine to ensure an independent judiciary and the basis of a society in which people and the government behave according to law.

Provisions in the US ensure that the Congress or the president cannot remove judges or reduce their perks on account of an adverse verdict.

Judges can only be removed from office on impeachment or conviction of an offence or treason, bribery or other high crimes and misdemeanors.

The interests of society demand that judges should do nothing to shake the confidence of the people. Lawyers and judges are meant to uphold the rule of law and serve the litigants. The three separate organs of state must respect the boundaries assigned and not leap into that of others.

Winston Churchill said: “The principle of complete independence of the judiciary from the executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the world. The judge has not only to do justice between man and man but also between the citizen and the state.

He has to ensure that the administration conforms to law and to adjudicate upon the legality of the exercise by the executive of its powers. The service rendered by judges demands the highest of learning, training and character.” IL — The author is a former union law minister

INDEPENDENCE

GUEST COLUMN/

SPECIAL

Pravin Parekh

INDEPENDENCE

I-DAY FEATURE/ Lawyers

as Leaders

SPECIAL

“Lack of Integrity Troubling”

W

E owe a lot to our freedom fighters, known and unknown, big and small, working in large cities and tiny villages, young and old, educated and not so educated, rich and poor. An atmosphere was created by our founding fathers that forced the Britishers to quit. Various pressures were brought in from leaders like Subhash Chandra Bose and Mahatma Gandhi who taught us the power of non-violence. Mahatma Gandhi said that after getting Swaraj we were to get “Suraj”, which means the well-being of citizens.

Our founding fathers gave us a great constitution, conferring and protecting both fundamental and non-fundamental rights. The electoral process was laid down for free and fair elections and an independent judiciary was created keeping in view the division of powers between the legislature, executive and judiciary.

Many powers were given to the judiciary to check the executive from trespassing on the freedoms guaranteed to citizens as well as non-citizens.

It goes to the credit of our politicians that they accepted the results at the ballot and handed over power to newly elected governments at the center, state and local bodies.

It also goes to the credit of our

26

August 31, 2015

armed forces that they never thought of taking over control from the elected representatives.

Our Supreme Court, too, has expanded the meaning and content of substantive and procedural laws.

However, on the economic front, the rich have become richer and the poor have become poorer. Similarly, on the educational front, we are not as

I am troubled by complaints on lack of integrity in all organs of society. Those in public service must serve, not indulge in corruption. successful as we would have wanted to be. We have also not been able to provide medical facilities to our citizens. A lot needs to be done.

I believe that on Independence Day, it is the duty of each one of us, the people of India, to take stock, make a big balance sheet of our country’s gains and misses and also of themselves to see what is on the credit side and what is on the debit side.

The time has come when each one of us must dedicate ourselves to the country. A famous quote of President John F Kennedy comes to my mind:

“Ask not what your country can do for you, ask what you can do for your country.”

One big black spot in our governance is that there are many complaints about lack of integrity among all organs of society. This is what troubles me the most. Those who hold public service are supposed to serve the people of India. They are not expected to indulge in corruption or bad governance.

The nation can see them indulging in corruption. Let us rededicate ourselves to the nation and take an oath not to support or participate in corruption either in public or private life.

Unless this is achieved, we will not be able to fulfill the dreams of our founding fathers when we achieved independence on August 15, 1947.

We saw those dreams again on November 26, 1949, when we gave to ourselves the constitution and again on January 26, 1950, when the Indian republic was born.

We are being watched not only by our citizens but the rest of the world.

We are also being watched by the Almighty. We can cheat others but we won’t be able to cheat Him.” IL — The writer is the president, Supreme Court Bar Association, and was awarded the Padma Shri for his sterling work in law

Courting Freedom W

hat draws lawyers to political and social movements and why do they emerge as driving forces or find themselves catapulted to positions where they are called to play the leadership role? Is it because the profession imparts them with the ability to see things in a broader perspective while still being able to minutely analyze governance.

And they do all this within the framework of what is right and wrong, just and unjust and at the same time promoting basic human values like freedom, equality and dignity. Or does an education in law provide the basic tools to become a politician by honing oratory skills and sharpening the ability to articulate an argument and debate? All lawyers—it must be said—do not make good politicians. But many great politicians happen to be lawyers.

The history of India’s Independence struggle is embellished with a long list of those from the legal profession who participated in the movement and contributed to it. These include Mahadev Govind

Ranade and Ferozeshah Mehta who laid the groundwork of a free nation by bringing into focus the ills that British rule imposed on India. Then, there were CR Das, Saifuddin Kitchlew and Asaf Ali, who donned their lawyers robes to fight the cases of fellow freedom fighters. Mahatma Gandhi, Sardar Patel, Rajendra Prasad and Bhimrao Ambedkar meanwhile, steered the movement and laid the constitutional framework of a free India. It can thus be seen that an impressive legal brigade led us to freedom. And they did so by selflessly dedicating themselves to the struggle without thinking twice about making sacrifices. It was sustained dedication of this kind that led to a national awakening which eventually won us our Independence and made August 15, a reality.

On the 68th anniversary of that historic day, India Legal pauses to look back at the Freedom Movement and profile those from the legal profession who played a crucial role in our Independence and left an indelible imprint on modern Indian history: INDIA LEGAL August 31, 2015

27

INDEPENDENCE

I-DAY FEATURE/ Lawyers

SPECIAL

as Leaders Bal Gangadhar Tilak (1856-1920)

Vallabhbhai Patel (1875-1950)

He was a proponent of Poorna Swaraj and part of the Home Rule League

He is known for the instrumental role he played in the integration of over 500 princely states into the Indian Union

A

maths teacher by profession, Tilak was also a qualified lawyer from the University of Bombay. He was the first to popularize the idea of boycotting British goods and passive resistance in 1905, 15 years before Mahatma Gandhi made use of these tools of protest in the Non-Cooperation Movement. Also, like Gandhi, he was keen that the freedom struggle be mass-led, but to do so, he adopted religious festivals like Ganesh Chaturthi, for which he has earned a lot of criticism. Swaraj was his major plank and he spread his ideas through his two daily newspapers—The Marathi Kesari and the Maharatta. He was twice imprisoned, including a six-year exile in Mandalay, Myanmar. Later years saw him devote energy to the Home Rule League and touring the country to propagate Swaraj. His call:“Swaraj is my birth right and I shall have it”, still resonates with us.

S

MK Gandhi (1869-1948) A struggling lawyer, Gandhi’s case for a free India was lapped up by the entire country and applauded by the world

T

hough a barrister-at-law, Gandhi wasn’t a successful lawyer. In fact, it was his early career struggles in Bombay and Rajkot that led to his decision to take up employment in South Africa. Once there, the starkness of racism and apartheid, his understanding of law, his persistence and the zeal to secure justice for the Indians settled there, all combined to make him perhaps the greatest champion of freedom. In fact, much of his philosophy of Satyagraha or passive resistance evolved in South Africa.

Back in India in 1915, he soon took center-stage of the freedom struggle, capturing the imagination of the entire nation with his clarity of thought and simple-yeteffective communication of ideas. The struggle against British rule, he articulated, would be through non-cooperation, non-violence and peaceful resistance.

Gandhi launched the non-cooperation movement in 1920 which saw the boycott of British institutions. Soon followed the civil disobedience movement and the historic Dandi Salt March of 1930 and finally, the Quit India Movement in 1942 which paved the way for the British to give India its independence. In doing so, it carved out the subcontinent into two nations—India and Pakistan. Partition saw a saddened, disillusioned and anguished Mahatma who saw the human toll of the Hindu-Muslim divide. He died on January 30, 1948, at the hands of an assassin who shot him at point blank range.

Gandhi’s legacy of non-violent resistance will live on forever. The fact that he inspired, among countless others, leaders like Martin Luther King and Nelson Mandela, is truly a testimony and tribute to his greatness.

28

August 31, 2015

ardar Patel, as he is commonly remembered, was the first deputy prime minister and home minister of independent India. Born in 1875 in Nadiad, Gujarat, he decided to study law at the age of 22 and set up his practice in Godhra. After his wife’s death in 1909, he enrolled in Middle Temple Inn in London and later set up practice in Ahmedabad as a barrister.

Patel came to be known as the Iron Man of India for persuading almost every princely state to accede to India. He was an ardent supporter of Gandhi and fervently supported the Quit India Movement. He also toured Gujarat and recruited over 3,00,000 members and raised more than `15 lakh in support of the Non-Cooperation Movement.

With his “no tax campaign”, he encouraged farmers to support a state-wide revolt by refusing to pay taxes. He was also a part of the Swadeshi movement and organized bonfires of British goods in Ahmedabad. He worked relentlessly against alcoholism, untouchability, caste discrimination and for the empowerment of women.

He was honored with the Bharat Ratna in 1991.

His birthday, October 31, was declared Rashtriya Ekta Divas (National Unity Day) by the government in 2014.

Dr BR Ambedkar (1891-1956) A man much ahead of his times in espousing an egalitarian casteless society with gender equality and religious freedom

O

vercoming deprivation and poverty, Dr Ambedkar went on to achieve great heights, pursuing higher studies at London School of Economics and Columbia University and was called to the Bar at Gray’s Inn. Despite his brilliant record, he faced humiliation at all levels on account of being a Dalit and hence, an untouchable. Some of the incidents from his early life left a lasting impression on him. He made access to drinking water sources and entry to temples for untouchables a key plank of his life-long campaign. As a lawyer in the Bombay High Court, and during his political life, he pushed the concept of separate electorates for untouchables.

His views brought him into conflict with Gandhi. In 1932, when the British announced the Communal Award for separate electorates for “depressed classes”, Gandhi went on fast in Yerwada Jail. Finally, a compromise solution was reached in the form of the Poona Pact, wherein Dalits were given 148 reserved seats within the general electorate, instead of 71, as promised in the Communal Award. Converting to Buddhism, Ambedkar wrote The Annihilation of Caste, a scathing critique of Brahmanism. Despite the differences, the Congress invited him to be India’s first law minister. He was also appointed chairman of the Constitution Drafting Committee. It was not just affirmative action for SCs and STs, but civil liberties of individuals, socio-economic rights for women and religious freedom that he emphasized. He was awarded the Bharat Ratna posthumously in 1990.

INDIA LEGAL August 31, 2015

29

INDEPENDENCE

I-DAY FEATURE/ Lawyers

SPECIAL

as Leaders C Rajagopalachari (1878-1972)

CR Das (1870-1925)

The first governor-general of Independent India, Rajaji greatly contributed to organizing the freedom movement in the southern states

A successful lawyer, he took up agrarian and labor causes besides being at the forefront of the freedom movement

A

1893 law graduate from Inner Temple in London, Das entered the freedom movement when he defended Aurobindo Ghosh in the Alipore Bomb Conspiracy case (1908-09) free of cost, and managed to get him acquitted. He followed it up by defending several other freedom fighters.

Though initially differing with Gandhi on non-cooperation, he was finally convinced about the cause and gave up his flourishing practice in 1920 to join the movement. He was also the President of the Congress Session in 1922. But when the Non-Cooperation Movement floundered, he pressed for a Council Entry Programme. When faced with opposition, he resigned from its presidentship. He, along with Motilal Nehru, formed the Swarajya Party within the Congress. During his short political career—he died in 1925—he espoused agrarian and labor causes, especially village panchayats. Presiding over the 1923 Lahore session of the All India Trade Union Congress, he also expressed support for factory legislation and organization of factory workers into unions.

H

aving studied law at Presidency College, Madras, Rajaji developed a flourishing legal practice in Salem. From the beginning of his career, he was drawn to the political ferment in the country, and especially to Tilak. He joined the Indian National Congress and attended its Calcutta session in 1906. He used his legal skills to defend P Varadarajulu Naidu, an activist, facing sedition charges.

He came in touch with Gandhi in 1919 and left his practice during the Non-Cooperation Movement. He rose as a leading figure in the Tamil Nadu Congress in the 1930s. During the Dandi March, Rajaji was at the forefront of breaking salt laws in Vedaranyam, Tamil Nadu, for which he was imprisoned by the British.

When the Congress came to power in Madras Presidency in the 1937 elections, Rajaji was elected as the premier. He enabled the entry of Dalits into temples by clearing the Temple Entry Authorization and Indemnity Act, 1939. On the flip side, his opposition to Quit India Movement didn’t go down well with senior Congress leaders. Nor did his insistence on Hindi learning endear him to people in the south. Despite his close relations with Gandhi (his daughter was married to Gandhi’s son Devdas Gandhi), he resigned from the Congress and started the Swatantra Party in 1952, over differences with Nehru. He was awarded the Bharat Ratna in 1954.

Motilal Nehru (1861-1931) Father of Jawaharlal, Motilal Nehru was the cofounder of Swarajya Party, champion of dominion status and author of the Nehru Report

Rajendra Prasad (1884-1963) He is best remembered as the first president of independent India and the only one to have held the office for two consecutive terms

B

orn in Ziradei, Bihar, in 1884, Rajendra Prasad attained his masters in law at Calcutta City College in 1915 and went on to finish his Doctorate at Allahabad University. He first came into contact with Gandhi when he joined a fact-finding mission in Champaran district of Bihar to address the grievances of Indian peasants forced to grow indigo on their fields.

He later gave up his legal career as well as academics to devote all his time to the Non-Cooperation Movement in 1920.

Despite his initial differences with Gandhian ideology, he adopted the Mahatma as his mentor, practicing self-discipline and working relentlessly in the Non-Cooperation Movement.

Rajendra Babu, as he was commonly known, headed the Indian National Congress thrice. He served as a cabinet minister of the interim government and was also elected as the president of the Constituent Assembly which was formed to frame the constitution of India. He campaigned to establish Hindi as the national language of India and edited a Hindi weekly Desh in the early 1920s. He was awarded the Bharat Ratna in 1962, the same year that his second term as president ended.

30

August 31, 2015

A

fter securing a law degree from Cambridge University, Nehru established a flourishing practice in Allahabad until he got drawn to political developments and presided over the provincial conference of the Indian National Congress.

The atrocities committed by the British, especially in Amritsar’s Jallianwala Bagh, drew him to the Gandhian struggle. For it he gave up his practice and his anglicized life. Though supporting the Congress strategy in the NonCooperation Movement, and braving arrest along with his son, he fell apart after the end of the movement in 1922 and formed the Swarajya Party with CR Das. He criticized Gandhi and the Congress for the way the movement had been called off. Also, like CR Das, he supported entry to councils, and got elected to the Central Legislative Assembly, becoming the leader of the opposition, hoping to bring change from within. He also supported dominion status for India on the lines of Australia, New Zealand and Canada, as against other nationalists who called for complete independence. His thoughts on dominion status for India are contained in the Nehru Report of 1928.

The father, espousing a divergent approach to freedom from that of the Congress leadership, would have found himself pitted against his son, a rising star close to Gandhi, though not much has been written about this dimension.

INDIA LEGAL August 31, 2015

31

INDEPENDENCE

I-DAY FEATURE/ Lawyers

SPECIAL

as Leaders Madan Mohan Malviya (1861-1946)

Saifuddin Kitchlew (1888-1963) The first Indian to receive the Stalin Peace Prize in 1952, he was known for his support and promotion of Hindu-Muslim unity

Mahamana, as he is popularly remembered, emphasized the importance of education. The Banaras Hindu University is his legacy

B

orn in Amritsar, Punjab, Saifuddin Kitchlew staunchly opposed the Muslim League’s demand for Pakistan and termed it a blatant “surrender of nationalism for communalism”. With a degree from Cambridge University and a PhD from Germany, Kitchlew set up a law practice in Amritsar. In his capacity as a barrister, he defended freedom fighters accused in trials such as the Delhi and Meerut Conspiracy cases. He was at the forefront of the 1919 Satyagraha Movement after which, he gave up his practice to become a part of the freedom movement.

Saifuddin was a founding leader of the Naujawan Bharat Sabha (Indian Youth Congress), which rallied hundreds of thousands of students and young Indians to the nationalist cause. He was also among the founders of Jamia Millia Islamia.

Govind Ballabh Pant (1887-1961) He spread the freedom message in the hills and stood for the rights of the people of Kumaon

H

aving completed his law degree from Allahabad, Pant started as a lawyer in Kashipur but took an early plunge into politics, supporting a village council in its fight against an oppressive British law. He started a weekly paper, Shakti, to highlight the problems of the Kumaon region.

He became a key ally of Gandhi and steered the Civil Disobedience Movement and the Quit India Movement in the hills, braving hardships including a long period of arrest in the wake of the Quit India Movement. A longstanding chief minister of Uttar Pradesh, beginning 1937 and union home minister following Sardar Patel’s demise, he is credited with the reorganization of states along linguistic lines and establishment of Hindi as an official language. He got the Bharat Ratna in 1957.

32

August 31, 2015

M

adan Mohan Malviya wasn’t just a freedom fighter but also a lawyer, educationist, journalist and more. The man who started out as a government school teacher with a monthly salary of `40 later completed his LLB to become one of the most acclaimed civil lawyers of his time. His defence of the 177 freedom fighters indicted in the Chauri-Chaura riots of 1922 has gone down in history wherein he managed to get 156 of the accused acquitted.

He furthered the cause of the freedom struggle when he launched The Leader, an English daily newspaper, with the help of Motilal Nehru in 1909.

He recognized the need to set up an English newspaper to support the campaign against the Press Act and Newspaper Act introduced by the British Government in 1908. He also worked towards the eradication of caste system. In 1936, he led 200 Dalits, including the Dalit leader PN Rajbhoj, to demand entry into the Kalaram Temple defying the construct of caste in society. Malviya popularized “Satyamev Jayate!”, a mantra from Mundaka Upanishad, which was adopted as the national motto of India.

He was posthumously honored with the Bharat Ratna on December 24, 2014, a day before his 153rd birth anniversary.

Asaf Ali (1888-1953) From Bhagat Singh to the Indian National Army, he defended many freedom fighters against treason charges

C

alled to the Bar from Lincoln’s Inn in London in 1912, Asaf Ali began his legal career at the Delhi Bar, and got into the thick of the national movement as defence lawyer for Bhagat Singh in the Lahore Conspiracy case.

Though Muslims began drifting from the Congress after the end of the Non-Cooperation Movement, Asaf Ali retained his secular ideals and defeated Muslim League candidates every time he contested the Delhi municipal elections.

Having served a long jail sentence during the Quit India Movement, Asaf Ali again put his legal expertise to use to defend members of Subhash Chandra Bose’s Indian National Army being tried by the British as traitors. He was India’s first ambassador to the US and served briefly as Orissa’s governor. His final posting was a diplomatic one—as India’s minister to Switzerland, Austria and the Vatican.

Bhulabhai Desai (1877-1946) Though he drew flak for the Desai-Liaquat Pact, he was better known for his passionate defence of INA soldiers

O

ne of the most well-known lawyers of the Indian freedom struggle, Bhulabhai Desai is remembered for his zealous defence of three soldiers of the Indian National Army (INA) in the last year of his life.

Undeterred by ill-health he worked for three months at a stretch, citing international law and the Indian Penal Code while trying to defend them.

Born in Valsad, Gujarat, Bhulabhai studied English literature and history and went on to be appointed as professor of English and history in Gujarat College while simultaneously studying law. He was enrolled as an advocate at the Bombay High Court in 1905 and later went on to represent the farmers of Gujarat in an inquiry by the British government following the Bardoli Satyagraha in 1928. Bhulabhai formidably represented the farmers’ case, and was important to the eventual success of the struggle.

In 1944, in an effort to bring about a compromise between the Congress and the Muslim League, he entered into extensive private negotiations with Nawabzada Liaquat Ali Khan, leading to the DesaiLiaquat Pact. The working committee of the Congress took the view that Bhulabhai had entered into the pact without the approval of Gandhi and in order to obtain an advantage for himself. It left him out of the proposed interim government. Despite the treatment he received at the hands of Congress, he remained one of the most popular figures of the time.

INDIA LEGAL August 31, 2015

33

INDEPENDENCE

SPECIAL

POLITICS/ Monsoon Session

The ordinary MP is excluded from debate, which de-incentivizes him from taking interest in matters of national importance. He is reduced to a dumb bench-warmer.

A Mockery of Parliament

T

he Monsoon Session of parliament, marked by filibustering and provocative exchanges between Treasury and Opposition, has doubtless been one of the least productive. Critical legislations were held to ransom by an Opposition intent on making an impact out of proportion to its numbers. We are lean but mean, signaled the Congress.

The motive may have been revenge for the electoral debacle of a year ago, a tit-for-tat for the many occasions when the BJP held up the House during the UPA regime, or a bargaining tactic towards some unspecified end. The Congress sought to paralyze parliament, the ruling party appeared content to let it do so and neither believes it will suffer electorally as a result.

34

August 31, 2015

The Monsoon Session has been a washout, with Treasury and Opposition benches having a head-on collision. The net result is that taxpayers’ money has been wasted

By Bhavdeep Kang

Which leads to the question as to whether the parliamentary process has been transformed, primarily through media, to the point where its members see a disconnect between electoral politics—the business of getting elected—and their role in the Lok Sabha. A senior Congress leader puts it succinctly: “BJP blocked parliament for five years and what happened? It came to power with a majority.

Voters are not concerned with passing bills.”

Lok Sabha. He also presents the views and will of his constituents on matters of national importance which do not directly affect their interests; in so doing, he must exercise his own judgment, albeit on their behalf.

Given that most MPs are elected on a party platform, their personal views are subordinated to those of the party leadership. MP Shashi Tharoor (and others) may well oppose the stalling of parliament in Congress forums, but he must toe the line in the House. Our parliamentary democracy leaves little scope for a conscience vote, but it does demand that an MP balance his commitment to party and constituents. His watchdog role is naturally accented when he is in the Opposition.

Through interventions during Question Hour and Zero Hour, he can directly put the executive on the mat. The Opposition can also bring into play devices such as an adjournment, a calling attention motion, a censure motion or in extreme cases, a no-confidence motion.

UNRELENTING MOOD (Left) Opposition leaders led by Sonia Gandhi demonstrate in Parliament House premises against the suspension of 25 MPs

MEDIA ROLE Increasingly, news channels offer political parties an alternative forum for questioning

(Below) External Affairs Minister Sushma Swaraj confronts Rahul Gandhi in the Lok Sabha

MP’s RESPONSIBILITY But passing bills is one of the three primary responsibilities of a member of parliament.

Although the role of an MP is not codified— Article 105 of the Constitution pretty much leaves it up to parliament to decide—it may be broadly described as representative, legislative and supervisory (watchdog). He (or she) is expected to represent the interests of the parliamentary segment which has sent him to the INDIA LEGAL August 31, 2015

35

POLITICS/ Monsoon Session

not in parliament, having lost the Lok Sabha elections (and unable to find a berth in the Rajya Sabha, given the party’s limited numbers in state assemblies).

The ordinary MP is thus excluded from debate, which dilutes his supervisory role and de-incentivizes him from taking interest in matters of national importance. He is reduced to a bench-warmer, whose input is neither sought nor valued. Through him, the electorate he represents stands, if not disempowered, certainly ignored.

A POET AND A POLITCIAN (Above) Parliament has seen elevated levels of discourse from the likes of Atal Bihari Vajpayee

Our parliamentary democracy leaves little scope for a conscience vote, but it does demand that an MP balance his commitment to party and constituents.

36

August 31, 2015

the executive. Sound bytes in talk shows substitute debate on the floor of the House. The media not only plays the role of watchdog—as it should—but also serves as a mock (and mockery of) parliament where treasury and opposition can go head-to-head, untrammeled by rules of procedure and code of conduct. It then flagellates MPs for wasting taxpayers’ money (given that it costs `2.5 lakh per minute to run parliament).

The Congress, afforded the opportunity for serious debate on matters of ministerial propriety and corruption in parliament, refused to avail of it. Congress leaders sought to embarrass the government and gain traction among voters by addressing the nation through live TV—and the BJP responded in kind. The confrontation escalated with the suspension of 25 Congress MPs. The pigheadedness backfired towards the end of the session and the main Opposition party found itself isolated, with non-NDA parties supporting SP leader Mulayam Singh Yadav’s stand that the House must function.

Strategically, the Congress move made sense. TV is a level-playing field, one where numbers do not matter and where allegations —substantiated or otherwise—can be freely leveled on air in a language that would invite disciplinary action in the House. It allowed the Congress to bring into play its more articulate spokespersons, most of whom are currently

PARTY LEADERSHIP The legislative role of MPs has already been delegated to standing committees of parliament, whose reports are presumed to represent the general view. Most MPs—even ministers—often do not acquaint themselves with bills passed with their consent, on the assumption that the party leadership knows all. (This is not necessarily true, the Land Acquisition Bill, 2015, being a case in point. Widespread confusion regarding its provisions led to NDA spokespersons making unfortunate errors.)

In such a scenario, the MP’s primary role becomes representative. He is judged by the work he puts into his constituency, where he is often called upon to play drain inspector, lineman and employment exchange (as a recipient of the Best Parliamentarian award wryly observed), thereby engaging himself in areas best left to local bodies or MLAs. Parliament has witnessed an elevated level of discourse in the past, with the likes of Jawaharlal Nehru, Ram Manohar Lohia, JB Kripalani, Feroze Gandhi, Piloo Mody, S Jaipal Reddy, Chandra Shekhar and Atal Bihari Vajpayee, to name a few. Sound bytes are no substitute and the dilution of parliament’s relevance is regrettable.

Treasury and Opposition could well have achieved an entente if either had wanted to.

Politics is, after all, about deal-making. A responsible politician makes deals for the benefit of the nation, rather than indulging in blackmail, which compromises public interest.

And a responsible Opposition serves as the government’s conscience and vox populi. It has quite rightly raised issues of impropriety and corruption—but voters elect MPs to represent them in parliament, not in TV studios. IL

INDEPENDENCE

SPECIAL

LEGAL EYE/ Delhi Witness Protection Scheme 2015

A Laudable Step In a first by any state, Delhi’s AAP govt has notified the Delhi Witness Protection Scheme 2015. But how will it be implemented when the police is under the BJP-ruled center?

By Ajith Pillai

STRESSING THE NEED (Above L-R) Justice S Ravindra Bhat and Justice GP Mittal had ordered the Delhi govt to put in place a witness protection program

38

August 31, 2015

C

RUCIAL witnesses being influenced or coerced into turning hostile has seen the most watertight of cases falling apart in recent times. In fact, at least two Supreme Court judgments have taken serious note of the fact that those who testify against the state or the rich and powerful have, under pressure from vested interests, withdrawn the statements earlier made to the police. This, the judgments observed, virtually made a mockery of the criminal justice system and needed to be addressed with immediacy. The apex court—as well as other

courts and legal bodies—have repeatedly stressed the need to protect witnesses to ensure that their testimonies are secured and they are insulated from any kind of influence.

Given this backdrop, the Delhi government notifying the Delhi Witness Protection Scheme, 2015, on July 30 has been quietly applauded by the legal community. While witnesses were being provided protection on a case-to-case basis by the National Investigating Agency (NIA), which probes terrorism-related cases, this is the first time that a formal program of this kind has been drawn up by any state government.

GIVE THEM CONFIDENCE So how will the new protection scheme, developed after studying several western models, work? According to the government notification: “The objective of the scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of Justice. Witnesses need to be given the confidence to assist law enforcement and judicial authorities with full assurance of safety.”

Witnesses have been classified into three categories, according to the level of threat perception determined by a senior officer of the district where the case is being investigated. The most vulnerable are those who, along with their families, need protection for extended periods of time even after the conclusion of the trial. One step below them are witnesses who need protection only during the course of the trial, and finally, there are those who receive minor threats and intimi-

dation during the investigation process.

Once the threat perception is assessed and orders passed by the Delhi State Legal Services Authority (DSLA), it is the duty of the witness protection cell—a wing to be created by the state police—to provide security.

Several areas of witness protection have been identified and spelt out in the scheme.

These include: Ensuring that the witness and the accused do not come face-to-face during investigation or trial; holding of in-camera trials; monitoring of mail and telephone calls; arrangement with the telephone company to change the witness’ telephone number or assign him/her an unlisted telephone number; installation of security devices in the witness’ home such as CCTV, alarms, fencing etc; concealment of identity of the witness by referring to him/her with the changed name; emergency contact persons for the witness; ensuring expeditious recording of deposition during trial on a day-to-day basis without adjournments; providing financial aid/grant to the witness from Witness Protection Fund for the purpose of re-location and sustenance or starting new vocation/profession.

STRAINED RELATIONS On paper, the scheme looks impressive. But the big question is: Will a protection program funded through state budgetary allocation and supported by the Delhi government be implemented in letter and spirit by the police that currently serve under the Union home ministry? No one is willing to be uncharitable at this nascent stage but one Delhi government official admitted to India Legal: “The misunderstanding and strained relations between the state and central gov-

Photos: Rajeev Tyagi

ernment may not help in the implementation and success of the program, although the High Court has ordered it.”

Interestingly, the Delhi government was forced to act, thanks to a 2013 Delhi High Court order which took note of the problem of witnesses turning hostile in the Jessica Lall, Priyadarshini Mattoo and Nitish Katara murder cases. A bench of Justices S Ravindra Bhat and GP Mittal, while ordering the prosecution of two witnesses who had turned hostile during the Jessica Lal murder trail, also took note of the other two cases and ordered the state government to put in place a witness protection program.

One hopes that petty state-center politics do not come in the way of the well-intended and much-needed program. But given the backdrop of the constant bickering between the Arvind Kejriwal government and the police in particular, it may be wishful thinking that the scheme will move in the right direction. According to police insiders, the first hurdle to be crossed will be the creation of the witness protection cell—who will set it up? The state or the center?

The Delhi government, to its credit, has taken the first step forward by formulating and notifying a well-rounded program. It is time to consolidate on that rather than take two steps back. IL

IMPORTANT LINKS (Above L-R) Vikas Yadav, accused in the Nitish Katara case; Manu Sharma, accused in the Jessica Lall case

The scheme aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in the overall administration of justice.

INDIA LEGAL August 31, 2015

39

INDEPENDENCE

SPECIAL

STATES/ Gujarat/Acts and Bills

Coerced to Vote?

On July 17, Gujarat notified the Local Authorities (Amendment) Act, 2009, making voting a must in local bodies. But can this be implemented in a democracy?

By Kaushik Joshi in Ahmedabad

A

FTER a lot of dilly-dallying, the Gujarat government notified the Gujarat Local Authorities (Amendment) Act, 2009, on July 17, 2015, making voting mandatory in all local body elections in the state. The Act also reserves 50 percent seats for women in these bodies. With that, a bold new Indian experiment has begun.

The new law provides for punitive action against registered voters who fail to cast their vote in local body elections without any acceptable reason. These polls are due in September and October this year.

The government has also recently made public the fine to be paid by those who fail to exercise their franchise and the situations where exemptions will be considered (see Box: “Govt notifies punitive action”).

The new law will apply to 253 municipalities, 208 taluka panchayats, 26 district panchayats and six municipal corporations. The law includes the right to exercise the NOTA (None of the Above) option.

Gujarat’s law on compulsory voting was first passed in the assembly in December 2009. It was returned for reconsideration in April 2010 by then governor Kamala Beniwal on the ground that “it was an infringement of individual liberty and violative of freedom guaranteed under Article 21 of the constitution”.

The government passed the bill again in March 2011. The governor, however, refused

The idea of compulsory voting was first mooted by an MP in 1951 during the debate on the People’s Representation Bill. However, it was rejected by BR Ambedkar. to approve it again and it gathered dust until the newly elected NDA government removed Beniwal, replacing her with OP Kohli, who gave his assent in November 2014.

The new law added five sections—Section 16A to 16E—to the Gujarat Municipalities Act, 1963. While Section 16A provides for a qualified voter to vote, Section 16B empowers an electoral officer to declare someone who has not voted as a defaulter. Section 16C provides for categories exempted from voting, including the sick and the infirm, while Section 16D provides for the procedure to be followed before declaring a person a defaulter. Lastly, Section 16E provides for appeals by a defaulter.

Critics have slammed the controversial legislation as anti-democratic, anti-poor and cruel. Even former Election Commissioner HS Brahma had said the Gujarat government’s move “may not be correct”. He was reported as saying: “What if we have a similar law at the center, and out of 83-crore-plus voters, 10 percent choose not to vote? Will you put eight crore voters in jail or impose fines on them? Do we have jails to accommodate eight crore voters?”

Beniwal was reluctant to consider compulsory voting for several reasons. She

PIB

NEEDLESS DIKTAT? (Above and right) The law on compulsory voting will apply to 253 municipalities, 208 taluka panchayats, 26 district panchayats and six municipal corporations

False move Reasons why the compulsory voting move of Gujarat could fail: The sheer number of voters means there’ll be a large number of defaulters. Processing such large numbers may overwhelm an electoral officer.

Article 326 of the constitution and Section 62 of the Representation of the People Act, 1951, guarantee the right of adult suffrage. The right to vote also implies the right not to vote.

It may not stand judicial scrutiny.

Tracking those who haven’t voted, summoning them to pay fines and reporting them to designated authorities would be mindboggling. It will also entail a huge cost and be a waste of time. In the 2014 elections, 28 percent of voters didn’t cast their votes. Imagine dealing with so many people if they approached the courts.

Such a law would foster corruption as officials would demand bribes from defaulters.

UNI

40

August 31, 2015

INDIA LEGAL August 31, 2015

41

INDEPENDENCE

SPECIAL

STATES/ Gujarat / Acts and Bills

Global grouse Countries that enforce compulsory voting: Argentina (since 1912), Australia (since 1924), Brazil (left), Cyprus, Ecuador, Luxembourg, Malaysia, North Korea, Nauru, Peru, Singapore and Uruguay.

Countries not enforcing compulso-

ry voting despite having a law: Belgium, Bolivia, Costa Rice, Congo, Dominican Republic, Egypt, Gabon, Greece, Guatemala, Honduras, Libya, Mexico, Panama, Paraguay, Thailand and Turkey.

Netherlands and Austria repealed compulsory voting laws after they had been in force for decades.

Punitive action The Gujarat government has made public that those who fail to vote at local body elections will have to pay `100 if they are unable to convince the election officer why they didn’t vote.

However, at the same time, the government has also notified categories which will be exempted from punitive

action. These are: a) The infirm, weak or who have been ill for a long time. b) Those who are away from the state or country on the day of the election. c) Indoor patients. d) Persons with 75 percent physical disability. e) Anybody who is appearing for an examination, either for a job or for academic reasons on the day of voting.

f) Those appearing for employment-related interviews on the voting day. g) Those involved in marriage, death or medical emergency. h) People who are more than 75 years old. i) Those who have migrated to another place six months before the election date. j) State government or central government employees who have been transferred from the place where the polls are being held.

Vishnu Pandya, a columnist and au-thor is all for compulsory voting. He says: “This measure only aims at taking the voter to the polling booth. People who don’t vote lack commitment to democracy. It could also be due to broken promises on the part of the elected. The word ‘compulsory’ should be changed to ‘total’. Efforts should be made to make voters active in a democracy.”

J

NOT ON THE SAME PAGE (From left) Indukumar Jani, a social activist and editor of Naya Marg, a Gujarati daily, supports the bill; Former Gujarat governor Kamala Beniwal had rejected it more than once

While critics have slammed the controversial legislation as anti-democratic, anti-poor and cruel, the supporters argue that a higher turnout is needed for a proper democratic mandate and greater participation.

42

August 31, 2015

wanted the government to create an enabling environment for the voter to cast his vote, which included updating of electoral rolls, timely distribution of voter ID cards to all individuals and ensuring easy access to polling stations.

I

ncidentally, the idea of compulsory voting was mooted by an MP in 1951 during the debate on the People’s Representation Bill. However, it was rejected by BR Ambedkar on account of practical difficulties. Later, in 1990, the Dinesh Goswami Committee did briefly examine the issue but it was again rejected for practical difficulties.

In July 2004, the Compulsory Voting Bill was introduced as a Private Member’s Bill by Bachi Singh Rawat, a Lok Sabha MP. Arguments against the Bill included remoteness of polling booths and hassles facing nomadic groups, disabled people and pregnant wo-

men. The Bill could not be passed.

Later, another Private Member’s Bill was introduced by JP Agarwal, an MP, in 2009.

The then law minister supported the Bill in some measure as he felt that “parliament would then reflect, more accurately, the will of the electorate”. In the same breath, he also said that “in a democratic setup, active participation must be voluntary, not coercive”.

But why have compulsive voting? Supporters argue that a higher turnout is needed for a proper democratic mandate and that larger participation means greater legitimacy. They also say that people will take politics seriously and it is their duty to vote in a democracy.

Staunch advocates also argue that good democratic habits are learnt, not inborn. They argue that norms against drinking, rash driving or not urinating and defecating in public have to be backed by law and due enforcement till it becomes second nature.

asubhai Chauhan, a betel shop owner too lauds the measure. “Well-off people hardly go to the polling booth.

They donate money to politicians and get things done. Now, they too will have to vote.

The Act should be welcomed.”

The naysayers would disagree. Jayant Patel, an NCP MLA from Umreth in Anand district of Gujarat says: “Compulsory voting is persecution. The BJP’s eyes are on the vote bank and they will make political capital out of it.”

Gujarat Congress spokesperson Manish Doshi says the Bill was moved in a hurry without inviting any discourse with intellectuals, experts or social activists. “If a person, though physically fit, cannot cast a vote due to some compulsion, it would be improper to impose this law on him and declare him a defaulter. People will reject this in the local bodies polls in October,” he said.

Indukumar Jani, a social activist and editor of Naya Marg, a Gujarati fortnightly, says he is against this measure as punitive action will be taken against migrant laborers, especially poor tribals, if they don’t vote.

“These days, democracy is being violated in many ways. This single measure cannot

ECHOING GOVERNMENT’S VIEW (Left) Columnist and author, Vishnu Pandya, says people who don’t vote lack commitment to democracy

strengthen it,” he added. Dankesh Oza, a retired joint secretary of Gujarat asks why this should be made mandatory when the NOTA option is still there.

However, Hargovind Chakraborty, a security guard, angrily asks: “Has the government put its own house in order by updating the electoral rolls? When voters’ names and surnames are found changed, how can they cast their vote? This is another ‘fatwa’ from the state government.”

This move, obviously, smacks of illiberalism. American essayist Harold Edmund Stearns puts it succinctly: “The root of liberalism, in a word, is hatred of compulsion, for liberalism has respect for the individual and his conscience and reason which the employment of coercion necessarily destroys.” IL INDIA LEGAL August 31, 2015

43

INDEPENDENCE

SPECIAL

STATES/ Madhya Pradesh / Acts and Bills

Anthony Lawrence

Tightening the Screws in MP A new bill to curb PILs has stirred a hornet’s nest in this state

By Rakesh Dixit in Bhopal

A

MID outrage over the Vyapam scam, the embattled BJP government of Shivraj Singh Chouhan has provided the Congress and civil society one more reason to drag it to the Supreme Court. On July 22, the government passed a bill—Tang Karne Wali Mukadamabazi Nivaran Vidheyak (Prevention of Irritating Legal Practices Bill2015)—in the assembly, which seeks to curb individuals and NGOs from filing PILs. The state cabinet had approved the bill in March this year in the wake of suggestions from the

44

August 31, 2015

Madhya Pradesh High Court Registrar-General in August 2014. The MP government says the bill was drafted on the recommendations of the Law Commission of India, which had, in 2005, proposed a bill against “vexatious litigations” for the whole country, saying that a court’s time should not be taken up by those who persistently litigate without a justifiable cause.

Incidentally, the MP government is in a tight spot due to the Vyapam scam. The state government under pressure had agreed to the scam being probed by the CBI and said it had no objection if the inquiry was monitored by the Supreme Court.

The government’s justification for adopting the new bill is that “it will curb blackmailers from continuously disrupting developmental works and wasting the time of courts”. But the overwhelming view of PIL activists and legal experts is that the bill is blatantly unconstitutional and, therefore, untenable. They say it is aimed at throttling the voice of genuine litigants who use PILs to seek court interventions against flawed policies of the government and corrupt practices of its functionaries.

S

enior lawyer and former state advocate-general, Vivek Tankha, says he will move the Supreme Court to challenge the bill after examining its provisions.

“I am appalled at the thought process behind moving such legislation and implementing it,’’ he says. Tankha, incidentally, was the lawyer of three whistleblowers and Congress leader Digvijaya Singh on whose petitions the Supreme Court ordered a CBI probe into the Vyapam scam.

The bill introduced in the assembly states: “If high court agrees on an application filed by advocate general that a person has filed one or more civil or criminal cases against another person or several persons with the intention of harassment, then the high court may direct that no court will register another civil or criminal case by the same complainant. Besides, all proceedings of petitions filed by him before the high court

direction will also be discontinued."

In effect, the bill forbids people from petitioning lower courts and the high court on “unreasonable” grounds. It empowers the state advocate-general to challenge any “frivolous or mischievous” petition and get it dismissed in court. It also provides for him to file a plea in the high court to declare a person “a vexatious litigant” and prevent him from filing any civil or criminal petition without the court's prior permission. The most restrictive aspect of the proposed law is that it precludes the possibility of any genuine litigation by the same petitioner in future.

However, the petitioner is allowed to challenge the rejection of his petition by a lower court in the Supreme Court.

Transparency International board member and well-known RTI activist Ajay Dubey says he will challenge the “draconian” bill in the Supreme Court. “The bill has been passed at a time when scams such as Vyapam in MP are hogging national and international headlines. The state government is trying to curb the voice of the people,” Dubey alleges.

He accuses Chouhan of trying to ensure immunity for himself and his ministers from the Vyapam heat. Dubey says the proposed law would allow the government to prevent people from moving courts to expose its corrupt practices. State parliamentary affairs minister and government spokesman Narottam Mishra confirms Dubey’s fears.

“After the bill becomes law, no FIR can be

STRONG PROTEST (Above L-R) Congress’s chief spokesman KK Mishra and RTI activist Ajay Dubey

While the government feels that the new bill will curb blackmailers from disrupting developmental works and wasting courts' time, activists and legal experts say the bill is blatantly unconstitutional.

INDIA LEGAL August 31, 2015

45

STATES/ Madhya Pradesh / Acts and Bills

Satyadev Katare, blatantly suppresses the freedom of speech and expression. He says the bill clearly indicates that Chouhan is seeking an escape route for the corrupt in his government. Congress chief spokesman KK Mishra argues that the only purpose of the bill is to suffocate whistleblowers and those exposing the government on corruption issues. When there is a Whistleblowers Protection Act in the country, why have a law to suppress them, he asks?

filed against the chief minister and ministers,” he says.

A

SEEKING LEGAL ACTION (Top) Leader of the opposition in MP assembly Satyadev Katare (Above) MP law minister Kusum Mehdele

46

August 31, 2015

nother RTI activist, Puneet Tandon, says the government is seeking to harass whistleblowers by prohibiting their access to courts. Former MP director-general of police Arun Gurtu, who has filed PILs that have resulted in many important court interventions in land encroachment cases, describes the bill as a blatant infringement on fundamental rights. “This bill will render the law and order situation completely uncontrollable," he feels.

Dr Anand Rai, an Indore-based RTI activist and the main whistleblower in the Vyapam scam, says that while it is true that many people file petitions in court without doing hard work or research, this law is completely wrong in a democracy. “PILs helped to expose irregularities in the premedical test and other recruitment tests.

Several path-breaking decisions came because of PILs,’’ Dr Rai says.

Right to Food campaigner Sachin Jain contends that PILs are an important tool because governments either don’t involve activists in the decision-making process or don’t include their suggestions. “The proposed law could be misused against genuine PIL petitioners,” he says.

The Congress plans to move the Supreme Court against the bill which, according to the leader of the opposition in the MP assembly,

D

enying that the legislation was prompted by the Vyapam case, law minister Kusum Mehdele points out that laws against vexatious litigation already exist in Maharashtra (since 1971) and Tamil Nadu (since 1949 when it was still the State of Madras). However, legal experts contend that high courts and the Supreme Court already have basic safeguards against petitions that have no reasonable grounds.

Therefore, they argue, state governments don’t need to meddle in this matter.

Experts stress that the Code of Civil Procedure has a rule that allows courts to strike out a civil plea that may be “unnecessary, scandalous, frivolous or vexatious”, or that may be an “abuse of the process of the court”. If a criminal litigation is filed before a magistrate without a “reasonable cause”, Section 250 of the Code of Criminal Procedure allows the judge to order the complainant to pay a monetary compensation to the accused.

In 2010, the Maintainability of Public Interest Litigation Rules was introduced to govern PILs. Under these rules, petitioners must first disclose their credentials and motives to the court’s registry, which decides if the PIL can be entertained.

“This law (of the MP government) cannot be sustained,” retired Delhi High Court justice Usha Mehra says, adding: “It’s against well-established principles of law, common sense, and natural justice.”

Supreme Court lawyer Gopal Sankaranarayanan says it is a “legal absurdity. This is not only completely against all legal systems but also amounts to interference with the course of justice.”

In MP, it seems anything is possible. IL

VIEWS ON NEWS

EVERY FORTNIGHT VIEWS ON NEWS WILL BRING YOU TELL-ALL NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE MINDS IN THE NATION Views On News (VON) is India’s premier fortnightly magazine that covers the wide spectrum of modern communication loosely known as “the media”. Its racy, news and analysis oriented story-telling encompasses current global and Indian developments, trends, future projections encompassing policy and business drifts, the latest from inside the print and electronic newsrooms, the exciting developments in ever-expanding digital space, trending matters in the social media, advertising, entertainment and books. n

Sectio

S W E N N O VIEWS Intellectual nance

Gover

EDIT:

TIZEN D THE NE 03 PORN AN

P HISM BJSC RSS &ING

com

newsonline.

son www.view

GROW

52

22, AUGUST

2015

`50

TERROR

VOHRA BIKRAM OW SOCIAL H S E EXPLAINAS BECOME TH R MEDIA HMULTIPLIER FO FORCE HAD IN THE JE GE ATION A INFORM 12

An ENC Publication If the media is leaving you behind, stay ahead of it by picking up yesterday’s Views On News!

VIEWS ON NEWS Don’t miss a single issue of this stimulating, unbiased, entertaining new fortnightly magazine and get special discounts for yourself and your friends

E. N. COMMUNICATION PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) Pin : 201309.

Phone: + 91–0120–2471400–432 / Fax: + 91–0120–2471411 editor@viewsonnewsonline.com / sales@viewsonnewsonline.com www.viewsonnewsonline.com / www.encnetwork.in

AS NOOSE NEWS: s stor y Yakub’fused was in oric et with rh 18

INT: FINEPR Kalom’ss dubiou d an ks lin Didi’s ge patrona

26

: MASA AN A brave life, take onte fa love, pe and ho 48

TCH: BBC WAill the W grand ter’s as dc br oa wings be clipped?

30

INDEPENDENCE

SPECIAL

STATES/ Gujarat/judiciary/land allotment

on August 11, a division bench headed by the acting chief justice converted the letter into a PIL. He retired soon after on August 12.

The division bench referred the PIL to a larger bench and also framed questions to set a template for it. It rejected the request from the counsel for the judges as well as the state government for time to look into the issue and also whether such a PIL was maintainable. “The matter relates to judges of this court and because of its seriousness must be decided by a larger bench,” the division bench ruled.

Scam in Housing for Judges?

While the judiciary is meant to uphold values and integrity, a row has erupted in the Gujarat High Court over allotment of plots to judges

By R K Misra in Gandhinagar IN THE EYE OF A STORM? (Above) Gujarat High Court

G

UJARAT has a way of hogging the national headlines.

This time, the hallowed portals of the judiciary are in the midst of a slugfest over government allotment of residential plots to judges at concessional rates. The dirt has hit the ceiling and the fallout may bring into national discourse moral principles and the legitimacy of similar allotment by other states to members of the judiciary.

REVEALING LETTER The issue was triggered by two retired judges, BJ Shethna and KR Vyas, who alleged in a letter to acting chief justice of Gujarat High Court VM Sahai in the first week of July that there was a “big scam” in the allotment of 400 sqm plots to sitting and retired high court judges at the Neetibaug Cooperative Housing Society in Ahmedabad.

Justice Shethna is a former judge of the Gujarat and Rajasthan High Court, while Justice Vyas is a former chief justice of the Bombay High Court and former judge of the

48

August 31, 2015

Gujarat High Court.

According to the letter, the government announced the allotment of residential plots to judicial officers in 2003. A government resolution was issued in 2008 announcing the allotment at concessional rates. The high court registrar-general sent a list of 48 names of judges.

However, instead of going through the registrar-general, the government directly began dealing with the judges. It changed the condition of allotment and constituted a cooperative housing society. But, it denied plots to some judges, stating that they had retired before the scheme was announced. In 2014, the matter figured before the Supreme Court, but it refused to hear it and sent it back to the high court to exhaust the option of hearing the petition itself. Now the matter is back before the apex court.

On getting the letter, chief justice Sahai on August 7 wrote to all sitting judges seeking their opinion on his intent to file a suo motu PIL in the case. He set August 10 as the deadline. As it failed to elicit any response,

RECUSING THEMSELVES Even as all this was happening, Justice RP Dholaria recused himself from the case.

Then, acting chief justice Sahai and Justice Mohinder Pal, who took over from Dholaria, took the decision to form a larger bench to hear the matter on a day-to-day basis.

The court also issued notices to 27 sitting and retired high court judges, including a sitting Supreme Court judge, besides the state government. The larger three-judge bench comprised of Justices Mohinder Pal, JB Pardiwala and Paresh Upadhayay. But Justice Pardiwala also recused himself for personal reasons, while Justice Upadhayay clarified that he had applied for membership of the housing society in question but had withdrawn it.

However, in a new twist, the Supreme Court stayed proceedings before the high court, deleted the names of the sitting and retired judges as respondents and sought a response from the state government.

The case has left a bitter taste with everyone as hidden dirt was thrown around during arguments in court. Advocate-general Kamal Trivedi, at one point, stated that the bench headed by Sahai should not hear the petition as he himself was interested in a plot which could not be given to him as it was only meant for those who were sitting judges of the high court as on November 6, 2008.

There was also mention of the fact that he had sought Trivedi’s intervention. Angered, Sahai hit back, asking whether he should recount various occasions when he had sought interventions on behalf of the state government. Trivedi also sought widening of

SPILLING THE BEANS? Justice KR Vyas

the judicial scrutiny to include some appointments made by Justice Sahai to Class III and IV posts in the high court as had been pointed out in a complaint by advocate Bharat Rao. These proceedings have brought into the open fissures within the judiciary, which have so far been the subject of conjecture.

GROWING ROW Justice Sahai, on his part, stated on record that he had invited judges to discuss issues but in vain. Rao has also put forward a representation in this regard to the President of India and chief justice of the Supreme Court.

The Gujarat High Court Advocates Association has also supported his stand that judges should not accept plots offered by the state government since there are illegalities in the allotment. It has also decided to support his stand against the appointments made by Justice Sahai.

However, Justice Sahai told India Legal: “Some judge had to hear the matter and I decided to do the difficult job. I did what was right. One media report said that I wanted to live in Gujarat but did not have a house in Gujarat and that is why I had to return to Allahabad. The truth is that I always wanted to be back home with my family.”

Meanwhile, Justice Vyas has sought to withdraw his letter, stating that he had no idea it would create such a controversy. The last has not been heard in this matter and legal experts aver that this issue has farreaching implications for the judiciary. IL

“Some judge had to hear the matter and I decided to do the difficult job. I did what was right. One media report said that I wanted to live in Gujarat but did not have a house in Gujarat and that is why I had to return to Allahabad.

The truth is that I always wanted to be back home with my family.”

— VM Sahai, former acting chief justice of Gujarat High Court INDIA LEGAL August 31, 2015

49

INDEPENDENCE

SPECIAL

STATES/ Gujarat/Lion Sanctuaries

Supreme Court to rule on April 15, 2013, that “no state organization or person can claim ownership or possession of wild animals in forests. Animals in the wild are the property of the nation for which no state can claim ownership and the states duty is to protect wildlife and conserve it.” The judgment directed that the lions be translocated to Kuno Palpur in MP. The urgent need for shifting lions presently bunched in one area—Gir—has been recommended by numerous panels. This is largely because the number of Asiatic lions, once found widely in West and South Asia, had dwindled to a paltry 18 animals in 1893, but sprang back due to strenuous conservation efforts. As per the 2015 lion census, the number now stands at 523 but this could be in jeopardy.

The Muted Roar LION KING (Above) The entire Asiatic Lion population concentrated in Gujarat’s Gir sanctuary needs to be translocated

50

August 31, 2015

Despite judicial activism to shift Gujarat’s lions to other states, there is no relenting. As the situation turns grim, incidents of man-animal conflict are rising in the state’s over-populated sanctuaries

By RK Misra in Ahmedabad

I

T has been a losing judicial battle.

Not surprising when we see the regionalism of a former chief minister who magnanimously gifts lions to a distant country (The Czech Republic) but stalls when it comes to a neighboring state. Though courts have ruled that Gujarat must part with some of the Asiatic lions housed in Gir sanctuary and shift them to Kuno Palpur in MP, the state has made every attempt to delay the departure. It fell on the

INCREASING CONFLICT The rising population has created its own problems. After charting lion kills and the compensation paid to farmers, it has been concluded that the lions have long overshot their sanctuary and their imprint is now visible over 1,500 villages in a 20,000 sq km area. This is spread over three contiguous districts—Junagadh, Amreli and Bhavnagar.

This is almost double the 10,500 sq km area recorded in the 2010 census. With the sanctuary over-populated and lions spilling over outside, incidents of man-animal conflict have been on the increase.

A recalcitrant Gujarat, however, refuses to give-in and the principal onus of this rests with Modi, who waged a legal battle and turned the lions into an emotive issue of Gujarati pride. However, it has been a losing judicial battle.

After the Supreme Court ruled against Gujarat in April 2013, the state government was back in the apex court in May with a review petition. It was dismissed in October.

In February 2014, Gujarat was back in the Supreme Court, this time with a curative petition. In August 2014, a three-judge

bench, comprising the then chief justice RM Lodha and Justices HL Dattu and TS Thakur dismissed this.

ROOTING FOR GUJARAT But Gujarat was still not prepared to give up.

There are two petitions still pending before the Supreme Court. One was filed in February last year by Rajkot-based NGO, Wildlife Conservation Trust, taking the plea that certain facts were not brought before the apex court. Another petition has been filed

by Priyavrat Gandhi, a member of the Gujarat State Wildlife Board in May 2014.

He contended that Kuno Palpur is a key corridor for tigers of Ranthambore National Park in Rajasthan as they travel to Madhav National Park in MP. With Modi becoming PM, Gujarat’s position on the National Board for Wildlife has been bolstered. Also, former Gujarat forest officer HS Singh and serving forest officer Bharat Pathak, who heads the Gandhinagarbased Gujarat Ecological, Education and Research Foundation, are both staunchly anti-translocation.

Ironically, in all this hullabaloo, it was the Gujarat High Court which emerged as the real protector of the lion. Under Modi,

NEW ABODE (Above) Kuno Palpur, in MP, the proposed sanctuary for translocation of the Asiatic Lions of Gir

Too much noise from human traffic and stone mining activities destabilize the animals, which then move out of the area with tragic consequences.

INDIA LEGAL August 31, 2015

51

STATES/ Gujarat/Lion Sanctuaries

Patel admitted on March 10, 2015, that 124 lions and 135 leopards had died during the last two years in Saurashtra. This figure does not include the 10 lions which died during flash floods in June this year.

TOURISM FALLOUT (Top) Safaris have led to upheaval in the environment (Above) Amitabh Bachchan in the Gujarat Tourism campaign

52

August 31, 2015

Gujarat undertook a high-profile tourism campaign, engaging the services of film star Amitabh Bachchan to lead the advertising blitz with the catchline:“Kuchh din to guzaro Gujarat mein”. While the campaign was a roaring success and tourists descended in hordes to the lion sanctuary, the environs were woefully lacking in facilities.

Overnight, all sorts of illegal establishments sprouted, invading the privacy of the lions.

Illegal lion shows and night safaris led to large-scale upheaval in the pristine jungle environment, leading to increased lion attacks as well as their deaths.

In a written reply in the Gujarat Assembly, state forest minister Mangubhai

COURT ACTIVISM Dismayed locals turned to the Gujarat High Court for help. Taking cognizance of an anonymous letter, it forced the state government to act after it ordered the sealing of 66 illegal structures operating with immunity on the edges of the sanctuary.

Similarly, 67 clandestine mining units operating in the area were ordered to shut down.

Judicial intervention also ensured that lion safaris, which had soared to 90, were down to less than half.

Rajiv Katyayan, a specialist in corporate tours, says: “It will auger well if Gujarat, which is new to the tourism game, learns from the experience of other states like Uttarakhand and Himachal Pradesh rather than repeats the same mistakes.”

AK Sharma, a highly decorated former forest officer, puts it more bluntly: “Increasing human traffic, whether in the form of illegal hotels in the buffer zone of the forests or too much noise from human traffic and stone mining activities, all destabilize the animals, who then move out of the area with tragic consequences. There has to be a balance.”

The lack of balance has had tragic consequences. Three lion cubs were run over by a goods train between Rajula and Pipavav in Amreli district recently. Two lions were also mowed down by a speeding vehicle on Somnath highway and a lioness was killed last month near Gir National Park. Two lions with three cubs perished similarly in January last year.

As things stand, the forest department is a pressured lot. After it cut lion safari permits to less than half, the tourism department built up pressure and the permits began inching up. “We were forced to relent because of pressure from top quarters in Gandhinagar. Mercifully, the forest is closed, so there is respite for a while,” said one forest official.

But for how long remains to be seen. IL

INDEPENDENCE

SPECIAL

FOCUS/ Death Penalty Debate

Follow the Tel Aviv Model A frequent target of terror attacks, Israel realized the futility of capital punishment more than five decades ago. Why is India still clinging to the death penalty?

By Abhay Vaidya

LAW & ORDER IMPLICATIONS Security was tightened near Yakub Memon’s residence in Mumbai on the day of his hanging

S

hould India persist with the death penalty for the “rarest of rare” crimes? The issue was recently brought into focus by the Yakub Memon hanging and continues to be debated although he was committed to the gallows on July 30. There certainly seems to be no unanimity when it comes to capital punishment. People differing with the decision in Yakub’s case included

not just a section of ordinary folk but also people of eminence, including lawyers and former judges, who had petitioned President Pranab Mukherjee for clemency for Memon.

The petitions, which were forwarded to the home ministry, had no effect on the Narendra Modi government as it was determined to hang Yakub. This was justified by senior cabinet minister Arun Jaitley in a televised interview with Rajdeep Sardesai.

Jaitley said that multiple benches of the

UNI

Supreme Court had looked into all aspects of the case and had upheld the death sentence for Yakub. There was, therefore, no question of any miscarriage of justice. Jaitley also clarified that the government was not in favor of abolishing capital punishment in India, given the context of terrorism in the country.

As he explained, some 150 countries which had abolished the death penalty were mostly those which did not suffer from terrorism or strife as did India.

ISRAEL’S REALIZATION Jaitley got it wrong because even a nation like Israel which has arguably seen far more terror attacks and suicide bombings than India, has observed a moratorium on capital punishment for more than five decades now.

The last execution in Israel was that of the Nazi criminal, Adolf Eichmann, in 1962 for his role in the Holocaust.

The Israeli military and its intelligence agency, Mossad, have been known to hunt and kill terrorists hiding in other countries, irrespective of the repercussions. At home, however, Israel has refrained from capital punishment although a provision exists in the law.

This is because of the realization in Israel that the death penalty has proved futile as a deterrent. It was also viewed as counter-productive early on in the nation’s history because “there was always real fear in Israel of the powerful effects of martyrdom,” says Edna Ullmann-Margalit, Professor of Philosophy at the Hebrew University of Jerusalem, in a paper on the subject.

India needs to draw lessons from the example of Israel. To continue to cling to the death penalty in today’s day and age is a sign of an un-evolved vision. The death penalty today has not only become a blunt,

FUTILE EXERCISE (Above Left) Adolf Eichmann, the last Nazi criminal executed in Israel in 1962 (Above Right) A Hezbollah missile attack on Israeli troops on the IsraelLebanon border in January 2015 left four soldiers wounded

UNI

54

August 31, 2015

INDIA LEGAL August 31, 2015

55

INDEPENDENCE

SPECIAL

FOCUS/ Death Penalty Debate

Notices over Yakub coverage THE Information and Broadcasting Ministry has sent show-cause notices to four news channels—ABP News, Aaj Tak and NDTV India and NDTV 24/7— for their coverage on Yakub Memon’s hanging and asked them why action should not be taken against them.

The ministry directed them to reply within 15 days. The charges leveled against them were interviewing underworld don Chhota Shakeel and Yakub Memon’s lawyer on the day of hanging.

The Broadcast Editors Association (BEA), a forum of broadcasting editors, has condemned the show-cause notices and said these were issued “on the questionable pretext that their coverage pertaining to Yakub Memon’s death sentence amounted to contempt of the institution of the President as

A state that decides to abolish capital punishment stands elevated to a much higher moral and philosophical plane. It eliminates the possibility of miscarriages of justice.

SENTENCES COMMUTED (L to R) Rajiv Gandhi’s assassins Murugan, Santhan and Perarivalan, who are now serving life imprisonment

56

August 31, 2015

also the judiciary”. The BEA has decided to take up this issue with the government.

The BEA found the Editors Guild of India supporting it. A statement by the Guild’s President N Ravi read: “It is shocking that the Information and Broadcasting Ministry should have issued notices to ABP News, NDTV and Aaj Tak for their coverage of the Yakub Memon issue under the cable TV regulations. Those regulations were never meant to be used to stop the free and vigorous discussion of matters of public interest, however disagreeable the content might be to the government. The Editors’ Guild of India calls upon the Ministry of Information and Broadcasting to withdraw the notices forthwith.”

worthless instrument, but also counter-productive, especially in cases of terrorism. It is also as outdated an idea as slavery and the worst manifestations of the caste system.

A terrorist who is barely in his 20s and 30s is so thoroughly brainwashed by his handlers that he has already embraced death before even setting out on his mission of mayhem. What greatness and real purpose is then served through capital punishment in

such cases? That too, after managing to accidentally nab a Kasab or a Yakub Memon?

Till his last breath, Memon maintained that he was being punished for his brother “Tiger” Memon’s crime and had been betrayed by the Indian establishment which had promised him a lighter sentence in exchange for his surrender, cooperation and assistance in the investigations. This version, corroborated by the accounts of some exRAW officials, notably late B Raman, gained considerable credence, further weakening the case for his execution.

CASE FOR ABOLITION What about the huge amount of time and money spent by the judiciary, the president’s office, the state and central governments and the various ministries and the PMO in backand-forth consultations in deciding Yakub’s fate? What about the huge amount of time, money and resources spent by the police department in preparing for the execution, the funeral and then anticipating the consequences of the death penalty? What about the polarizing impact of the Yakub Memon execution on Indian society?

What about the strong arguments of miscarriage of justice in Yakub’s case?

“What about justice for the victims” is the question that is often asked by those who strongly favour the death penalty. The bigger tragedy is that the state itself is often found

wanting in providing adequate compensation and rehabilitation to the victims of terror attacks. During a recent televised debate, a victim who was grievously injured in the bomb blast near the Bombay Stock Exchange in 1993 complained that no one from the government had even once reached out to him in the last 22 years to ask about his welfare. In contrast, look at the manner in which industrialist Rata Tata cared for the victims of the 26/11 Mumbai terror attacks, visiting the homes of the people killed in the attack and putting in place a robust compensation and rehabilitation package for the victims and their families.

There are other reasons for the abolition of the death penalty. A state that decides to abolish capital punishment stands elevated to a much higher moral and philosophical plane. Significantly, it eliminates the possibility of miscarriages of justice and paves the way for repentance. The abolition of the death penalty symbolizes strength as there is strength in forgiveness.

By sparing a criminal’s life, it symbolizes the victory of good over evil—a stand amplified in Indian scriptures through the story of the dreaded brigand Valya who, after years of killing and looting people, repented his crimes and transformed himself into Valmiki, the author of the Ramayana.

The underlying message here is that the ultimate beneficiary in the abolition of the death penalty is society and the human civilization at large.

As per UN statistics, 102 nations have abolished the death penalty for all crimes, while 36 retain it in both law and practice.

Six nations have abolished it but retain it for war crimes and other exceptional or special circumstances and 51 nations have not used it for at least 10 years or are under a moratorium.

India is among the nations along with the US, China and Japan in upholding the death penalty, although it was perceived as moving towards a moratorium. This was because of just one execution in the 13 years between 1999 and 2011. That perception changed with three executions in the last

four years (Ajmal Kasab, Afzal Guru and Yakub Memon).

The commutation of Yakub’s death sentence to life imprisonment would have marked a worthy departure from the past. It would have helped eliminate the possibility of a miscarriage of justice, if any. It would have helped clear the perception of a bias against Muslims. It would have gone a long way towards the abolition of the death penalty in India. And finally, it could have opened up the possibility of the surrender of India’s most-wanted criminals, Dawood Ibrahim and Tiger Memon.

As is evident from Israel’s example, there is enormous self-interest in moving away from the death penalty. IL

EXECUTED (Top) Ajmal Kasab and Afzal Guru were sentenced to death (Above) The attack on Parliament House in December 2001, in which Afzal Guru was convicted

INDIA LEGAL August 31, 2015

57

INDEPENDENCE

SPECIAL

FOCUS/ Death Penalty Debate/ Opinion

The media coverage pouring sympathy on Yakub Memon is preposterous…. The kind of media reporting would only make the ISI and Pakistan celebrate gleefully.

Yakub Memon Death Sentence: Legal and National Perspective The stance taken against Yakub’s death penalty will only weaken India’s efforts to fight terrorism and play into the hands of the ISI

By Srividhya

E

ven before the death sentence was carried out the Raman’s letter surfaced in public domain triggering 240 eminent persons into action seeking Presidential clemency on the ground of international convention for abolition of death penalty. The swift process of mercy petition to the President without delay unlike in the case of Rajiv Gandhi killers etc is assailed as unfair and discrimination to target the minorities (giving religious colour). A plea is also taken that Yakub Memon is suffering from schizophrenia therefore the death sentence should not be carried out. All these grounds raised have been rejected by the Supreme Court after due consideration.

Based on the epistle of B. Raman it is pleaded by eminent persons that Yakub Memon has voluntarily surrendered and helped the investigating agency to go to the root of the conspiracy engineered and

58

August 31, 2015

executed by the ISI elements of Pakistan, but for his information it would not have been possible to make out a case for Pakistan’s involvement.

The conviction and death sentence of Yakub Memon has undergone the strict judicial scrutiny of SC, Yakub Memon and his brother have exhausted all legal and constitutional remedies of approaching the president for clemency. The review and curative petition filed by Yakub was duly considered and rejected. It is commendable that the SC even entertained the 11th hour petition challenging the legality of the death warrant; it is indeed commendable that the SC even gave a patient late evening hearing. After due consideration the legality of death warrant is upheld. . The individual opinion of Raman on the sentence cannot prevail over the judicial verdict.

Some sections of the Indian media have raised a debate to fulminate against the

death sentence overlooking the national and international ramifications. Some of the eminent persons who have subscribed to the mercy petition are widely known to hold committed slanted views in a matter like this. This is definitely not a good subject for debate on legality and morality of the death sentence.

In the first place the credibility of Raman’s letter is shrouded with serious doubts. The said letter is not subjected to judicious and judicial scrutiny. Assuming for the moment the contents are correct, the revelations in the letter in a clinching manner discloses that Yakub Memon and his family were unable to cope up with the house arrest situation in Pakistan, he escaped to Kathmandu where he came to be arrested on suspicion and later on handed over to the Indian police and arrested at Delhi. But in the mercy petition eminent persons give a skewed version that it is a voluntary

surrender. In the course of the investigation Yakub Memon said to have voluntarily given vital information regarding Pakistan’s involvement. Should these facts be extenuating circumstances?

Anyone who has a basic understanding in criminal jurisprudence would know that in the investigation the accused after arrest would be interrogated and information regarding the details of commission of crime is collected. Such revelations by the accused are a common place in the investigation and would not glorify such accused to a status of a witness, messenger or an approver. The argument that such revelations would constitute mitigating circumstance is not acceptable in law, it could have been different if Yakub Memon was remorseful for his diabolical conduct, if so he should have made judicial confession u/s 164 of the CrPC and pleaded guilty of the charge leveled against him. On the contrary he engages defense counsel and stoutly contests the case till his last breath.

The media coverage pouring sympathy on Yakub Memon is preposterous and lacking nationalistic and legal perspectives. The kind of media reporting would only make the ISI and Pakistan celebrate gleefully and would be more assured that they have a good number of sympathizers to support the terrorists sponsored by them. This kind of media stand would only weaken the image of our nation and dent our efforts to seek cooperation of the international community to fight against the terrorism. It makes a painful reading that the Indian Express carried a headline ~ “and they hanged”? Who is that “they” are being calumniated. Is it the legal system, the Supreme Court, the President of India? This kind of media stand would patronize the cause of terrorist elements. It is indeed very sad. The Indian ~ ex ~ Press should be more Indian. IL INDIA LEGAL August 31, 2015

59

INDEPENDENCE

SPECIAL

ENVIRONMENT/ Parliamentary Report/ Radiation

Mobile M menace A parliamentary panel has recommended stricter norms for checking electromagnetic radiation from cell towers as Indians are more prone to risk due to their low BMI

By Rakesh Bhatnagar

uch friction is being generated over the supposed ill-effects of radiation from radioactive signals.

The WHO says there is no convincing scientific evidence that weak radio frequency (RF) signals from base stations and wireless networks “caused adverse health effects”.

However, a Parliamentary Standing Committee on Science & Technology, Environment & Forests tabled a report in the Rajya Sabha on July 23, 2015, recommending indigenous methodology and techniques to check the alarming increase in radiation from radio-active signals, RF and Electromagnetic Fields (EMFs).

The committee said Indians were more prone to risk from radiations as compared to Europeans because of their low body mass index (BMI) and low fat content. Therefore, comprehensive scientific studies must be conducted to “conclusively establish the level of risks and adverse health effects of electromagnetic radiation (EMR) of cell towers”.

It took into account various reports regarding unrestricted location of mobile

towers or antennas in cities and smaller towns. It recommended that the Department of Telecommunications (DoT) consider framing suitable regulations and guidelines for specifying the location of mobile towers.

MEDICAL RESEARCH Meanwhile, on March 3, 2015, the government also quoted a study by the Indian Medical Council (IMC), which said that “exposure to radiation from mobile phones causes adverse health effects”. Besides IMC, the Indian Council of Medical Research (ICMR) also pointed out that Indians were more vulnerable and prone to risk from radiations. It becomes more important now to undertake comprehensive scientific studies “to conclusively establish the level of risks and adverse health effects of EMR of mobile phone towers,” the parliamentary panel said.

The IMC report says that the hot tropical climate of India, low BMI, low fat content of an average Indian as compared to Europeans and high environmental concentration of RF radiation may place Indians at risk. “So there is a need to explore the possibility of impact of geographical location on adverse health effect from EMF radiation from mobile towers,” it added.

The parliamentary committee explains EMR as the flow of photons through space.

The electromagnetic spectrum is a range of all types of EM radiation. X-rays used in hospitals or radio waves from a radio station are all part of this spectrum. The most common sources of exposure include FM/AM radio, TV transmission, cellular networks using GSM, CDMA, WLAN, Bluetooth, ZigBee, WiFi and WiMax technologies which occupy VHF, UHF, L and S band of frequencies.

EXPERT PANEL It may be recalled that the Allahabad High Court had constituted an expert panel comprising members from various IITs and from other scientific institutions, including ICMR and AIIMS, to conduct a study on the effects of EMF radiation. It was also meant to study if the government’s response to the present prescribed precautionary EMF “safe exposure limits” was adequate. The expert panel submitted its report on January 17, 2014, recommending many changes. The parliamentary committee now has given the nod to the panel’s recommendations, even though DoT told it that the government was ready to further study the effects of radiation.

The expert panel says: “EMF should be

There is a need to explore the possibility of impact of geographical location on adverse health effect from EMF radiation from mobile towers.

TIME BOMB (Below) Unrestricted location of mobile towers are a persistent danger

UNHEALTHY SIGNALS? Low BMI and low fat content makes Indians more vulnerable to radiation

Photos: Anil Shakya

60

August 31, 2015

INDIA LEGAL August 31, 2015

61

NO I HOLDS BARRED

GENCY? E EMER l debate Dhawan speak out 28 RAID OF TH k off a nationa WHO ISLKAF ul Mudgal, Rajeev Advani’s fearadris spar Chari, Justice Muk

ENVIRONMENT/ Parliamentary Report/ Radiation

Royal tussles over King Solomon’s mines: Sree Padmanabha, Mysore treasure troves

ster HR Former law mini

Bhardwaj, Sesh

NDIA L

UNI

DANGER TO BIRDS (Above) The effects of radiation on urban flora and fauna also need to be gauged

The expert panel recommended that no further permission should be given by the government for installation of a new tower within a radius of one kilometer of existing towers.

62

August 31, 2015

recognized as a pollutant and its regular auditing should be conducted in urban localities, educational institutions and hospitals, industrial hubs, residential areas, recreational premises including parks and plazas and around protected and ecologically sensitive areas.�

It seeks a law for protection of urban flora and fauna from emerging threats like EMR or EMF as conservation issues in urban areas are different from forested or wildlife habitats. Bold signs and messages with warnings should be put up about the dangers of cell phone towers and radiation “which is emitted in and around the structures where the towers are erected�.

These would be akin to the one with skull and bones used for high voltage wires and health warnings on packets of cigarettes.

To avoid bird hits, it says that facilities for security lighting on the ground should be minimized and it should focus downwards or be shielded. The experts also stress independent monitoring of radiation levels and overall health of the community and nature surrounding the towers.

MONITORING RADIATION Access to tower sites should be allowed for monitoring radiation levels and animal mortality, if any. Appropriate procedures are also required for removal of problematic mobile towers, particularly in and around public place and protected areas, it further said.

HEALTH vs GROWTH According to sources, the government is chary of accepting these recommendations, which are not mandatory. The government claims that its guidelines for EMF radiations from base transceiver station (BTS) and mobile handsets are very stringent when compared to developed countries. In case of EMF radiation from BTSs, the prescribed values are 1/10th the ICNIRP guidelines and they are better than the standards adopted by some developed countries like the US, Canada, Japan and Australia, said the telecom ministry.

The International Commission on NonIonizing Radiation Protection, however, says that EMF radiation is a fact of life and most human beings are exposed to some form of it on a daily basis. But standards for safety have to be based on scientific basis. The telecom industry feels that due to this lacuna, regulations could be assailed as arbitrary.

Moreover, there are apprehensions that implementation of the parliamentary panel’s recommendations could hamper growth of telecom industry and Prime Minister Narendra Modi’s “Digital India�.

But what is the point of growth if it affects the health of people? IL

Shantanu Guha Ray interviews Malegaon prosecutor Rohini Salian

SINGLE MOTHER

34

NDIA L EGAL E INDIA EGAL IN www.indialegalonline.com i

August 15, 2015

July 15, 2015

YAKUB

BOMBER

Atal Bihari

SHOULD WE SHOOT THE MESSENGERS?

s not have aainly that Delhi doe cert It is evidentaga Modi, who has nt, solid case theinst tical establishme for cover 22 shaken up yonpoli k duc e to forcing ever

S

Sup ‘‘The verdict is a reme Court to the rescue breath of fresh air for women’’ - Brind a Karat

`100

`100

THE NAME

A proper ecological and medical study must be conducted prior to granting sanction for installation of mobile towers. Moreover, the data concerning the locations of cell phone towers and other EMF radiating towers along with their frequencies should be made available to the public. Authorities concerned must hold public consultations before installation of cell phone towers.

Other recommendations that the panel made are: the forest department should be consulted before installation of cell phone towers in and around protected areas/zoos.

The distance at which towers are installed should be studied on a case-by-case basis.

The committee also suggests that no further permission should be given by the government for installation of a new tower within a radius of one kilometer of existing towers. When new towers are made, their height should be above 80 ft and below 199 ft.

60

lonline.com

www.indialega

ah

www.indialega

10

lonline.com

`100

DULAT

Vajpayee

Farooq Abdull

L EGAL July 31, 2015

UNPLUGGED

The former intelligence pens a star chief new chaptertling about intrigue and decepti in Kashmir’son politics 24

ALSO What price witness protection?

Ajith Pillai talks to lawyers, judges, cops Lalit Modi

RANK

ONE NJAC: ONE Festering PENSION: controversy Soldier the 10 writes to ice chief just of India 48

ING INDIRA JAIS40 unplugged:

BANK LIQUIDITY: Where’s the money honey?

44

GETS: NEW TAR Dalits Successful 57

16

Omar Farooq

Pachauri’s ignoble exit from TERI 38

Ramesh Menon tells you how to make an online will and rest in peace 63

DEFAMATION LAW: Strange bedfellows 28

VYAPAM HORROR : More trou in Chouhables n’s kitbag 30

BIKRAM VOHRA: Jungle law in India 42

AS Dulat

IIMs AND Mounting FTII: rebellion 48

Don’t miss a single issue of this independent, scintillating new fortnightly magazine and get special discounts for yourself and your friends For advertising & subscription queries sales@indialegalonline.com

SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS HTb 8 f^d[S [XZT c^ bdQbRaXQT c^ 8=380 ;460; \PVPiX]T U^a cWT ^UUTa X]SXRPcTS QT[^f Tick one

Term (Years)

No. of Issues

Cover Price (`)

You pay (`)

You save (`)

% Saving

1 Year

24 Issues

2,400/-

1,200/-

1,200/-

50%

2 Years

48 Issues

4,800/-

1,920/-

2,880/-

60%

=P\T) 0VT) BTg) 0SSaTbb)

2Xch) BcPcT) ?X]) ?W^]T ATb ) >UUXRT) T \PX[) 4]R[^bTS 33 2WT`dT =^ ) 3PcTS) 3aPf]) U^a `) 2PaS =^ ) BXV]PcdaT) 5^a ^dcbcPcX^] RWT`dT _[TPbT PSS ` $ 33 2WT`dT c^ QT SaPf] X] UPe^da ^U 4= 2^\\d]XRPcX^]b ?ec ;cS C^ QT bT]c c^) 4= 2^\\d]XRPcX^]b ?ec ;cS 0 ( BTRc^a %' 6PdcP\ 1dSSW =PVPa =>830 D ? ! " ( CTa\b R^]SXcX^]b P__[h ?[TPbT _a^eXST db # fTTZb c^ bcPac h^da bdQbRaX_cX^]

INDEPENDENCE

SPECIAL

HUMAN INTEREST/ HIV Kids’ Home

What a Father Figure!

In India, there are no specific laws for HIV-affected children.

And that’s why the supreme selflessness of a Meerut teacher and the hurdles he faced while looking after 12 HIV+ kids needs to be lauded

By Deepa Gupta 64

August 31, 2015

T

HE smile on their faces and the twinkle in their eyes speak volumes about the positivity in their lives. That belies the bigg-est negative they are battling—HIV+. But that has done little to dim this motley bunch of kids who giggle and nudge each other on seeing a new visitor at their home in Meerut. And looking after these 12 children, aged between six and 14 years, is Ajay Sharma, fondly called pitaji by them.

Sharma, who lives in Meerut in Uttar

Pradesh, looks after these HIV+ children, who have either been abandoned by their families or are orphans. “How does one feel when there is no family and no one to call one’s own? When one is abandoned and there is no one to talk to? And especially when one is a poor and sick child,” he asks.

NEW LEASE Sharma’s story is about how life gave him a second chance and how he coped with various difficulties. The son of a farmer, he led a normal life with his wife and two children in Meerut. As a social sciences teacher at an inter college, he was a content man until a brain hemorrhage in 2004 at the age of 31 left him in coma for 26 days. “When I opened my eyes and slowly recovered, I realized I had been granted a second life.

And I wanted to do something for others.”

As he was looking for a purpose in life, he came across a news item in a local newspaper, which was about an HIV+ child who had been killed by his relatives after the death of his parents. That lingered in his mind. In 2005, he resigned from his permanent job and began teaching slum children.

But it was not until a three-year-old HIV+ child was brought to him that Sharma found his true calling. “The child had been abandoned by his family because he was HIV+. The people who brought him to me were seeking my help in finding an orphanage for him,” he says. But no orphanage was ready to take in a child with HIV, so Sharma brought the child home.

But with two healthy children of his own and a wife, did he face no opposition? His professor wife, Dr Babita Sharma, says: “I took the child in like my own. If educated people like us begin to discriminate, how can we think of educating society?”

Sharma adds that first we need to convince ourselves about our own beliefs and then only can we convince others. “If my own family had not supported me, how could I have sought help from society?” he asks. The child stayed with them for threeand-a-half months. By then, Sharma had decided to look for a home and take in

Law of the Land There are no specific laws governing the rights of HIV-affected children in India. However, Article 14 of the constitution guarantees them right to equality and non-discrimination, while Article 21 gives them right to dignity and health. “Accordingly, no child can be discriminated against on the ground of HIV status by the state in education, health facilities, access to public services, etc,” states Anand Grover, senior advocate and director, Lawyers Collective, an NGO. In the Right of Children To Free and Compulsory Education Act, 2009 (RTE Act), every child (from 6-14 years) has a right to free and compulsory education till the completion of elementary edu-

cation (up to VIII standard).

Though the Act does not mention specific groups, some states like Andhra Pradesh, Karnataka, Haryana and Nagaland have notified HIV + children as “disadvantaged” and thus, they cannot be subject to discrimination or segregation in schools under the Act. The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2014, seeks to prevent and control the spread of HIV and AIDS and protect those affected by the virus. The Bill prohibits any person from discriminating against a “protected person”, which includes an HIV+ child. It is currently awaiting passage in both houses of parliament.

more such children. But finding a home was not easy. “No one wanted to rent out a flat for HIV+ children. It took a lot of convincing and explanation to rid people of their doubts. There were too many social stigmas attached to the disease,” he says.

A RAY OF HOPE (Facing page) HIV+ kids at their new home, Satyakam Manav Sewa Samiti

PROPER NURTURING The children who were brought to Sharma were severely malnourished and had extremely low levels of hemoglobin. Proper care and nurturing saw them recovering fast, and today, they are a healthy and happy lot.

But it wasn’t easy for Sharma financially, as he had to look after them with his meager savings and his wife’s salary. Finally, in 2009, Sharma registered his home as Satyakam Manav Sewa Samiti, a voluntary organization, which looks after HIV+ children who have nowhere else to go.

Convincing schools to take in these children was another uphill task. Finally, a government school and another by the name INDIA LEGAL August 31, 2015

65

HUMAN INTEREST/ HIV Kids’ Home

Speaking Up In January, 2014, Naz Foundation, an NGO working with HIV-affected children, through Lawyers Collective, filed a PIL in the Supreme Court — Naz Foundation (India) Trust vs Union of India &Ors—seeking to stop discrimination against children affected by HIV in schools and invoking the fundamental rights to life, education and equality. On March 3, 2014, the court sought the response of the central government, National Commission for Protection of Child Rights and all state governments on the petition. The case is pending.

NOBLE DEEDS Sharma with the HIV+ kids at Satyakam Manav Sewa Samiti

of Adarsh Vidya Mandir took in all the kids.

Sharma’s home looks after all the needs of the kids, be it food, health, education or recreation. “My children perform at social functions in the city, helping me create awareness about HIV and stressing on inclusion. I want them to be independent.

As I do not have a cook, I cook all the meals along with these children. All tasks are done as a team. The older boys look after the younger ones,” he explains.

FAMILY SUPPORT Arvind, 12, is happy since he came here. “I love to watch Tom and Jerry cartoons and dream of becoming a cricketer one day. Yahan hum sab ek parivar ki tarah hain. Sab kaam hum mil kar karte hain. (We all live like a family here.

We do all the work together),” he says.

Ankur secures first position in class, physics being his favorite subject. He loves watching Pokemon during his free time. “I want to become a teacher when I grow up,” he says, his eyes full of hope.

Sharma says that a family environment is very important for every child, especially these children who need emotional support for good health. “It affects a child’s development in a positive way. I also try and per-

66

August 31, 2015

suade the families (if any) of these children to take them back. It’s not because I cannot keep them in this home, but because they would be much happier living with their siblings and other family members. I readily extend any help they might need.” He cites the example of Ashim, whose brother and sister-in-law decided to take him back after understanding HIV and the myths surrounding it. Ashim says: “I was happy in the home with all my friends. But it feels nicer to be at home with bhai and bhabhi. I feel a part of my family now.”

Today, Satyakam Manav Sewa Samiti has doctors, teachers, professionals, businessmen and even students extending a helping hand to these HIV+ children.

“I strongly believe that the very society that abandoned these children, must be convinced to accept them. And that is what I am aiming at.” From free treatment and medicines to education (the children also learn yoga and dance), good food, vacations, trips and a healthy environment, everything is taken care of.

“If I help 20 children, I will teach each one of them to help as many. This could one day leave no HIV+ child without a family or home. That is my dream,” says Sharma.

An ennobling thought. IL

INDEPENDENCE

SPECIAL

CASE STUDY/ Tribal School

Turning the tide

instrumental in raising the imposing Akshardham Temple in New Delhi, he was also the heart behind transforming this school in a sleepy village in the tribal belt of south Gujarat. The school was founded way back in 1989, but had nothing going for it.

When some educationists and social workers mooted the idea of adopting it in 2011, Pramukh Swami was game for it.

He first asked some of his sadhus and

devotees to take stock of the situation. Says Nanubhai Desai, 65, one of the trustees of the Gnan Seva Charitable Trust that now runs the adopted school: “We were shocked to find that the students in this school were served skimpy meals of half-baked rotis and watery vegetables. Further, civic amenities in the hostel were barely enough.” So where did the money given by the government go?

Worse, teachers did not take the

AN OASIS OF EDUCATION The transformed tribal school in Rambhas, Gujarat

Good intentions of some NGOs can change lives. This is what happened in a poor village in Gujarat, where a charitable trust brought new light into the lives of tribal children

By Kaushik Joshi

W

HEN Narendra Modi, then Gujarat chief minister, came to Vaghai town in Navsari district of his state in 2013, Jignesh Chaudhary, a tribal student from a poor government residential school, took him by surprise. He spoke of India’s rich cultural heritage before a gathering of 10,000 people without any stage-fright. That’s the change that healthy intervention by NGOs can bring into the lives of poor tribals. No wonder Gujarat CM Anandiben Patel recently appealed to society and NGOs to adopt those government schools where teachers lack commitment and students fare badly in the board exams.

THE CHANGE-MAKER But let’s come to the poorly run school in Rambhas, some 60 km from Navsari, to which Jignesh belonged, and see the change fostered by an NGO run by Swami Narayanswaroop Das (popularly known as Pramukh Swami). While on the one hand, he was

68

August 31, 2015

INDIA LEGAL August 31, 2015

69

INDEPENDENCE

SPECIAL

CASE STUDY/ Tribal School

Worthy of Trust Gnan Seva Trust is a charitable body, which is part of the larger Bochasanwasi Shri Akshar Purashottam Sanstha (BAPS), headed by Pramukh Swami, a man of action, grit and vision.

Three months after he took over the mammoth BAPS in 1971, he went to Dang district of Gujarat and Dadar and Nagar Haveli, both heavily populated by poor and illiterate tribals. Since then, he has been working tirelessly among them with love and compassion. His educated sadhus have also helped thousands of tribals break the vicious habit of alcohol abuse. Through household and community center visits, BAPS sadhus zeroed in on the virtues of non-violence, compassion and an upright conduct. Fortunately, the tribals paid heed to them in large numbers and are now leading better lives. Their children regularly go to school and many tribal youth have graduated from college. Some are also qualified medicos.

As Pramukh Swami often reminds them: “Every man has to seek in his own way how to make his self nobler and find some time for fellow beings. You don’t live in a world all your own. Your fellow beings are also there.”

number of classes assigned to them. They also found that some students would pilfer rice from the hostel granary, go to the river bank, catch fish and eat it with the rice cooked there.

In particular, the team found that the school, which they wanted to adopt, badly needed a facelift, especially the hostel building, the kitchen and classrooms.

rooms with comfortable benches, a large blackboard and fans. They have 11 computers and an LCD projector, as well as software programs on subjects they have to study.

Plus, the teachers are devoted and take all the classes assigned to them.

Dharmesh Bhoye, a Class XII student, says: “Earlier, we had just two to three classes daily. Teachers worked at will. The food was unpalatable and barely enough. Now, we have eight periods a day and the food is healthy and has variety.”

DISCIPLINED LIFE The change has been brought about in other spheres too. Nimisha Valu of Class VIII says: “Earlier, the warden of our hostel used to sleep during the day. He had no idea what his job was. Ever since the Gnan Seva Trust took over, all our needs are taken care of.” The students also have new sets of plates and bowls to eat from. Books and uniforms for the students are free.

MEN OF MISSION (Above, L-R) Trustee Nanubhai Desai and Principal Ramesh Bhagariya (Left) The renovated structure

A NEW LEAF Once the decision to adopt was taken, the trust lost no time in swinging into action.

They first replaced the teachers and recruited applicants who valued their jobs. Then, all the amenities were taken care of. Today, after renovation and restoration, the ashramshala (school) wears a verdant, spicand-span look, quite a change from the earlier barren one.

The renovated kitchen is comfortably spacious and ventilated, complete with boilers for cooking vegetables and a water cooler. The school also has its own water tank and better toilets.

The students, numbering 200, including 65 girls, sit in well-equipped, airy class-

70

August 31, 2015

INDIA LEGAL August 31, 2015

71

INDEPENDENCE

SPECIAL

CASE STUDY/ Tribal School

Until the Gnan Seva Trust adopted it in 2011, the pass percentage in the SSC Boards was below 25 percent. But it went up as high as 80 percent in 2014.

A NEW SENSE OF PRIDE (Above and left) Students taking their lessons seriously (Below) A sapling with the name of the adopting student stuck to it

72

August 31, 2015

But the physical changes in the school were the least of the problems for the trustees. They had a more challenging task ahead. Initially, the students were not prepared to have eight periods a day as they were used to the three that the teachers earlier took. However, with the concerted effort of the new teachers, the trustees were able to inculcate disciplined and a strict schedule and the overall attitude changed.

Ramesh Bhagariya, 39, the principal of the school, who was appointed in January 2014, says: “Earlier, the students were not even exposed to writing. We had to teach them that writing was an integral part of schooling. Now, they are keen about it and take periodic tests as well.”

Discipline has also been enforced in dayto-day activities by the trustees, warden Balu Jadav and the principal. The day starts early.

Hostellers wake up at 5 am and after a bath, study for an hour. Then, another hour goes in prayers and cleanliness. At 9.30 am, they have breakfast, after which they go to school.

And this discipline is reflected in their Board results. Until the Gnan Seva Trust adopted it in 2011, the pass percentage in the SSC

NATIONAL BRIEFS

Supreme Court allows repairs at Ayodhya temple

Boards was below 25 percent. But with a lot of effort by the trustees and teachers, it went up as high as 80 percent in 2014.

DEVOTED TEACHERS Bhagariya explains: “Before the school was adopted, the students fared badly because the teachers didn’t care a fig either for them or the results, as they were secure in their government jobs. The new teachers are both qualified and devoted. Therefore, the results have improved.”

Bhagariya himself is a tribal with a rich experience of teaching tribal students. He lives 30 km away and goes home only during the weekends.

“The students are little gods for me. Their parents hardly get time to come to school due to their daily grind. If I don’t care for their progeny, who will?” he asks.

With good results, the students too have become ambitious. Says Bhargav Chau: “My father sells vegetables, but I want to become a civil engineer.”

Bhavesh Raut of Class XI reveals: “My father used to drink a lot, but ever since this trust was started, he left drinking. As for me, I want to grow into an ideal citizen. This is more valuable than making lots of money.”

PLAY TIME The positivity and dedication in the school can also be seen in the students’ extracurricular activities. While there are students like Jignesh Chaudhary who are good in debating, others are proficient in ballet. Thakor Daniel of Class XI was selected at the district level for representing the state in yoga.

Karate and kabaddi are also played.

There’s a new sense of pride in environment and not only teachers but also students take out time to care for the environment.

Students with green fingers have adopted trees in the school premises and water them regularly. A placard near each sapling pronounces the name and class of the caretaker student.

It is obvious that without timely intervention and warmth, these students would have been doomed to a sorry fate like the rest of their clan. IL

THE SUPREME Court has allowed repair at the makeshift Ram Lala Temple at the disputed site in Ayodhya.

The court also directed that the Ayodhya temple shed be maintained by the local authorities. The exercise has to be undertaken by the district collector of Faizabad under the supervision of two independent observers, the court stated. BJP leader

Subramanian Swamy had filed an application in the Supreme Court seeking basic minimum facilities for pilgrims. The BJP leader had submitted that pilgrims are deprived of even basic facilities like drinking water and toilets and face difficulty due to inadequate arrangement made by both the center and the Uttar Pradesh government.

Prisons have no data on hangings IT SEEMS many prisons in India have no data on people who were hanged to death since independence. This came to light when the National Law University, Delhi embarked on a study of death-row convicts to find out whether awarding capital punishment was justified, especially for those who had been executed since 1947.

NLU was only able to confirm 755 executions since 1947 whereas the 35th report of the Law Commission states that a minimum of 1,410 people were hanged between 1953 and 1963 itself. The study has also revealed that the surviving deathrow convicts are poor and from backward classes.

Tripura against death penalty THE TRIPURA state legislature has passed a resolution against death penalty to convert it into life imprisonment. The resolution sends out a strong message for abolition of capital punishment. The controversial issue was raised following the recent hanging of Yakub Memon.

According to legislators, any amendment to the IPC is the exclusive domain

SC issues notice to Akshay, Dimple, Twinkle THE SUPREME Court has issued notices to film stars Akshay Kumar, Dimple Kapadia and Twinkle Khanna in connection with a domestic violence case lodged by Anita Advani, the alleged live-in partner of the late Rajesh Khanna.

A bench led by Chief Justice of India HL Dattu issued notices following

Advani’s appeal against a Bombay High Court order quashing her complaint of domestic violence against Kapadia and others. The case goes back to Advani’s alleged eviction from Khanna’s bungalow “Aashirwad”, after his death.

Advani had sought monthly maintenance as well.

of parliament and that is why Tripura’s resolution should be considered as a proposal mooted by the state for changing a legal provision. The adopted resolution will be sent to the union government and the Law Commission for consideration. The decision to accept the resolution, brought before the assembly by former Speaker and opposition Congress MLA Jitendra Sarkar, was accepted by members of both the Left Front and the Congress, except Congress MLA Ratan Lal Nath.

INDIA LEGAL August 31, 2015

73

INDEPENDENCE

SPECIAL

HEALTH/ Spiritual Healing

friend’s advice, I got pranic healing done. I was told that it was a temporary imbalance that had probably occurred due to body chakras. Just one session and the rashes and the itch never came back,” attests Sinha.

Charu Majumdar, 72, was operated for breast cancer and began healing sessions during her chemotherapy. “I believe that healing improves your sense of well-being and helps you cope better, mitigating the side-effects of medicines and therapy,” she says. Even during her MRIs, she sails through the process through distant healing.

“My mind becomes calm and these terrifying tests are done even before I realize I am inside the machine.”

M

The spirit is willing…

Different types of spiritual healing complimenting modern medicines can cure certain chronic ailments and lead to overall health

By Deepa Gupta

P

RIYANSH Aneja, a 51-year-old businessman, was suffering from bronchitis from the age of two and had been on medication all his life. As a child, he often missed school and could never take up any sport. Five years back, after reading Many Lives, Many Masters by Dr Brian Weiss, he began to understand the concepts of the spiritual world and attended a workshop on past life regression (PLR). Three sessions later, he discovered that he had had a drowning episode in one of his past lives. The water had got into his lungs and he had not survived.

74

August 31, 2015

He also connected this with his fear of swimming. “During the session, I saw a lot of tubes with dirty green water, which were affecting my lungs. After this cleansing, I was absolutely fit for many months.”

Sakshi Sinha, 34, developed hives after she took a yellow fever injection before travelling to South Africa. Back in Delhi, she still has this allergy problem; anything cold triggers it. “I could not sit in an AC room, could not eat ice-cream as my tongue would swell up and not have a cold bath as rashes would erupt. Anti-allergy medicines only provided temporary relief. I was in tears. Then, on a

editation, pranic healing, soul retrieval, shamanism, past life regression—call it by any name— but spiritual healing helps one to fight and even eliminate certain illnesses along with medicines. It has its roots in ancient times and is believed to cure a host of illnesses such as depression, blood pressure, arthritis, diabetes, cataract and cancer.

Take pranic healing. It involves transference of energy from the healer to the patient.

Usha Jaiswal, teacher and coordinator, department of Pranic Healing at Dev Sanskriti Vishwavidyalaya, Haridwar, says: “Any problem in the body first appears in the aura (bioplasmic or etheric body) and then manifests itself as a disease in the physical body. If the problem is treated within the aura, then it wouldn’t enter the physical body. But patients come to us when the problem has become chronic. We start with chakra healing and then energize and balance the chakras.”

All types of physical, emotional, mental and psychological problems can be treated with pranic healing. “We go through all aspects of a person’s life and then decide on the type of healing to be imparted. The patient is also advised meditation, a change in lifestyle and food and positive thinking,” says Jaiswal.

“If one is aware of oneself, one can do the healing,” says Vatsala Badoni, a Dehradunbased facilitator who heals even from a distance. “I merely help people heal themselves

Anil Shakya

by taking them into deep meditation where a realization of one’s soul helps one understand and release negativity.”

Surprisingly, healing is beyond time and space and Badoni has even done distance healing on people in the US. “I was suffering from severe depression, high sugar levels, heart problem and joint pains. With healing, there is a tremendous feeling of well-being and medicines work much better,” says Prabha Mediratta, a patient in Dehradun.

FOR HEALTH AND HAPPINESS (Top) A meditation session for self-healing (Above) Relying on the power of prayer

OPEN YOUR MIND Spiritual healing, asserts Anuradha Ramesh, Hyderabad-based spiritual healer and teacher, is not about the body but the mind.

Her fascination with metaphysics, the science of spirits, led her to believe that everything is essentially non-physical. “We exist as a consciousness—something that is so INDIA LEGAL August 31, 2015

75

INDEPENDENCE

SPECIAL

HEALTH/ Spiritual Healing

COURTS

“The level of trust with the therapist, the ability to put aside the logical mind and go with the flow of the sessions are a must for past life regression to remove the root cause of any illness.”

tual causes lead to healing of the body. “This type of healing involves a shaman who journeys into the parallel universe and with the help of spirits, guides and brings back the fragmented part of a person’s soul through soul retrieval and integrates it with the whole,” states Dr Newton Kondaveti, PLR therapist and spiritual scientist in Hyderabad.

Gurpreet Singh, a Faridabad-based expert of shamanism, says that post-healing, a person must utilize his energy in leading a healthy lifestyle so that the free energy is not used in manifesting another illness.

—Anuradha Ramesh, spiritual healer

hile most do this healing as a form of medication, there are others who try these spiritual methods just to experience something new. Ashish Sharma, 38, says: “I got a PLR session done once just to experience it. But I could not go beyond a limit. I really don’t believe that illnesses can be cured this way.”

However, Dr Vedant Kabra, director, surgical oncology, Fortis, Gurgaon, says: “Health is not only a physical entity, but also emotional, psychological and spiritual. We must maintain a balance to achieve perfect health.

Alternative medicines also have their place but to believe that they will cure an otherwise incurable situation is not prudent. Use of other forms of medicine to supplement modern medicine is reasonable.”

Dr Gorav Gupta, member of Delhi Psychiatry Society and Indian Association of Psychiatry, says: “As a mental health professional, I have seen the positive effects of spiritual healing on patients.” All types of healing restore balance in the body, either through psychic connection, a placebo effect or happy hormones, he says. “As a medical person, I can’t undermine the advantages of medicines. But in some chronic cases such as headaches, recurrent colds, general body pain, anxiety and depression, spiritual healing can benefit greatly.”

So go ahead and see what suits you to make you a happy, healthy and contended person. IL

LAUGH AWAY YOUR ILLNESSES Laughter is a key component of Yoga

76

August 31, 2015

Bihar campaign put on hold

T

W

subtle that it cannot be touched. Just like an idea. No surgeon can open your brain to touch that idea although it very much exists.

Likewise, illnesses too are seated in the cells and originate from a mental block that we did not give a closure to,” she explains.

However, she says that PLR should be used with discretion. “The level of trust with the therapist, the ability to put aside the logical mind and go with the flow of the sessions are a must for PLR to successfully remove the root cause of any illness,” she says.

Shamans too believe that illnesses have a spiritual cause that manifest themselves in the physical body. And so, healing the spiri-

(Names of some patients have been changed to protect their identity)

HE publicity blitzkrieg unleashed by the Bihar government received a setback recently when the Patna High Court pulled it up for flouting a Supreme Court order. The court pointed out that the JD(U) government was using pictures of Chief Minister Nitish Kumar in its ambitious “Badh Chala Bihar” (Bihar moves forward) campaign when the apex court had explicitly prohibited using pictures of chief ministers in any government advertisement.

The high court issued an interim ban order on the campaign. The “Badh Chala Bihar” campaign invited the common man in

Illustrations: UdayShankar

the state to get involved in shaping a Bihar@2025 vision document.

The court was responding to a petition from Nagarik Adhikar Manch convener and RTI activist Shiv Prakash Rai. The petition claimed that the massive publicity drive of the state government’s public relations department was a colossal waste of public money and violated SC guidelines on using pictures in state publicity material.

Kumar, according to reports appearing in the media, has agreed to abide by the court’s order and will present the government view whenever asked by the court.

Communal color OT convinced about the ground on which a lower court in Madhya Pradesh had refused bail to a Muslim youth accused of molesting a Hindu woman, the Madhya Pradesh High Court called for the case to be referred to the chief justice.

The high court felt the lower court judge hearing the case looked at the offense from a communal point of view, concluding that the youth committed the offense knowing that the girl was a Hindu, and did not grant bail to

N

the accused, convinced that it could have led to communal riots.

The counsel for the accused pleaded before the high court that there was nothing in the chargesheet that justified the lower court ruling and the youth had to face needless detention when he could have got bail.

The high court, while considering the victim’s latest statement, agreed that new grounds were added by the lower court judge to the offense.

Disabled in trouble?

HE Karkardooma court in Delhi was recently stunned to see a disabled person, Yameen Malik, crawling on his hands to reach the courtroom for a hearing.

The court was shell-shocked to find that Malik was unable to use his legs and had crawled all the way to the courtroom on the fifth floor. He had been charged with rape.

After the IO failed to give a satisfactory reply on the facilities available for the disabled in jail, the court got an inkling that there was no wheelchair facility for the accused in the police

T

lock-up, jail lock-up as well as the jail van that brought him to the court complex. The judge was horrified to know that Malik had similarly crawled each time he appeared in the courtroom since his arrest in July 2015.

Appalled at the inhuman treatment, the district court observed that disabled persons couldn’t be deprived of their basic right to be treated with dignity, even if they were accused. It also noted that it was actually the state’s responsibility to see that the disabled-accused were able to access the legal system just like normal persons.

INDIA LEGAL August 31, 2014

77

INDEPENDENCE

INDEPENDENCE

SPECIAL

SPECIAL

INTERNATIONAL BRIEFS

MORE NEWS/ National

Israel sentences two extremists sans trial

Aadhaar only for LPG, PDS and Kerosene, says SC

ISRAEL RECENTLY sentenced two alleged Jewish extremists to six months in prison without charges.

The arrests were part of a crackdown on Jewish extremists after an

attack on a Palestinian home in which a child was killed and the parents injured. The two men, Meir Ettinger and Eviatar Slonim, were arrested for their suspected affiliation with an extremist Jewish organization. According to The Guardian, Israeli authorities stated that the act was “Jewish terrorism” and intense measures to combat such attacks and extremism must be taken.

Ex-intelligence chief jailed for 10 years

South African president faces legal action SOUTH AFRICAN opposition leader, Julius Malema, is taking President Jacob Zuma(below) to court after he refused to say when he would pay back some of the taxpayers’ money spent on renovating his Nkandla residence. Julius Malema, leader of the Economic Freedom Fighters Party, filed court papers after failing to get an answer from the president as to when he would refund $24 million taxpayers’ money that critics say was wasted on renovating his rural farmhouse in Nkandla village. Malema urged Zuma to pay back some of the money spent on the renovations that included a swimming pool, an amphitheatre and a cattle yard. President Zuma has denied any wrong-doing.

78

August 31, 2015

A BULGARIAN military court has sentenced former intelligence chief General Kircho Kirov to 10 years in prison for embezzlement of public funds.

General Kirov was accused a few years ago of misappropriating public funds worth nearly 5 million leva over a period of five years between 2007 and 2011. Along with the imprisonment, half of his assets will be confiscated. Kirov had served as the head of the National Intelligence Service from 2002 until 2012. Bulgaria joined the European Union in 2007.

Pak military courts approved

THE PAKISTANI Supreme Court has ruled that secret military courts are legal and can hand down death sentences to civilians.

Military courts were empowered to put on trial suspected militants after Taliban militants massacred nearly 150 school children, at an army run school, last year. The constitutionality of the military courts has been challenged by several lawyers in the past. But Chief Justice Nasir ul-Mulk dismissed all claims against the courts in the ruling, reported Dawn. The judgment made by the Supreme Court is expected to strengthen the military’s influence in Pakistan.

ADHAAR CARD is not necessary for getting the benefits of social welfare schemes of the center, and the government must generate enough awareness among people through print, radio and television about this aspect, the Supreme Court ruled in an interim order.

However, it allowed the government to link the 12-digit unique identification number only with its PDS scheme and distribution of kerosene and LPG cylinders. This would check fraudulent practices adopted by people to procure these essential items, the apex court felt.

On the question whether personal information revealed in the unique identification number violated the right to privacy, the three-judge bench referred the issue to a fivejudge bench to adjudicate. The court had received a bunch of

A

30 years sentence for insulting Thai king THAI MILITARY courts jailed a man and a woman in separate cases for 30 years and 28 years respectively for insulting the King Bhumibol Adulyadej (in pic below) and the royal family. It is the harshest sentence in the country's history. Thailand's lese majeste laws are stringent in nature and make it a crime to defame, insult or threaten the monarchy. Article 112 of Thailand’s criminal code says anyone who “defames insults or threatens the king, the queen, the heir-apparent or the regent” will be punished with up to 15 years in prison. Pongsak Sriboonpeng, 48, was initially given a sentence of 60 years for six Facebook posts but the sentence was halved after he pleaded guilty. In Chiang Mai city, another military court halved a jail term of 56 years for a 29-year-old woman, who pleaded guilty. The number of people charged under the lese majeste law has increased after the coup by Thai’s military last year.

Hasan Ali granted bail

petitions in this regard.

The apex court also debarred the government from sharing the information contained in the unique identification number with anyone unless directed by it to do so for criminal investigation.

The court, however, gave the government the go-ahead to continue with Aadhaar enrolment, rejecting a plea that wanted a stay on the process on account of violation of right to privacy.

Not merely resting with its interim order, the court even took an undertaking from Attorney-General Mukul Rohatgi that Aadhaar information will not be shared by the government with anyone and the card will only be used for doling out foodgrains under PDS, and distribution of LPG cylinders, kerosene, and for criminal investigation.

The Bombay High Court recently awarded bail to Hasan Ali Khan, a Pune businessman, in a money laundering case. Khan had to pay a surety of `1 lakh.

The Enforcement Directorate (ED) had filed a case against Khan and another co-accused under the Prevention of Money Laundering Act for allegedly parking huge amount of dollars in foreign accounts.

Khan had already put in more than four years in custody. The high court, however debarred him from staying away from its jurisdiction and asked him to fully cooperate with ED whenever he is called to its office for questioning.

Sluggish 1984 probe SPECIAL INVESTIGATION team (SIT), constituted in February this year by the Modi government to probe afresh the 1984 anti-Sikh riots, has yielded no result as yet, even as its six-month term ends in August.

The three-member SIT is headed

by Pramod Asthana, Director, Research and Correctional Division, Bureau of Police Research and Development (BPRD). Sources revealed that even as the SIT is headed for an extension, Asthana approached the Ministry of Home Affairs requesting for the appointment of two typists to help with their report. Asthana, it is learnt, was keen on two specific individuals for these posts, who have worked with him before. However, an advertisement announcing the vacancy is slated to

A

be published mid-August.

Getting justice for the victims of the 1984 riots has been projected as a big plank of the Modi government.

Last year, on Sardar Patel’s birth anniversary, which falls on the same day as Indira Gandhi’s assassination on October 31, Modi had said: “Our

own people were murdered, the attack was not on a particular community but on the entire nation. It was like a dagger pierced through India’s chest.” But given the pace at which the SIT is working, the current regime will hardly get any kudos from the aggrieved community.

INDIA LEGAL August 31, 2015

79

INDEPENDENCE

SPECIAL CAMPUS UPDATE

GUJARAT NATIONAL Law University (GNLU), Gandhinagar, is hosting an exhibition, “Africans in India: A Rediscovery”, in association with the Indira Gandhi National Centre for the Arts (IGNCA) and the Schomburg Center for Research in Black Culture, New York. The exhibition will be open for public viewing till September 10. The 53 panels at the venue, the Legal History Museum, retrace the lives and achievements of Africans who migrated to India and made it their home several centuries ago.

The exhibition was inaugurated by Nawab of Sachin (Surat), Sidi Mohammed Rezakhan, on August 10.

Galgotias varsity bags award GALGOTIAS UNIVERSITY bagged the Excellence in Education Award at the recently-held Third National CCI Technology Education Excellence Awards, 2015, hosted by Gujarat Technological University (GTU), Ahmedabad. The award was received by Prof BV Babu, Vice-Chancellor, Galgotias University, from Prof Akshai Agrawal, V-C, GTU. Many eminent educationists and diplomats were present on the occasion. The function was followed by a panel discussion among the Vice-Chancellors, to share and discuss the initiatives taken at their respective universities.

Symbiosis Law School aid THE LEGAL aid centre at Symbiosis Law School (SLS), Pune, has helped a 13-year-old, who was sexually abused by a school bus attendant, to get Rs 3 lakh as compensation under the Manodhairya scheme of the state government.

Under the scheme, the SLS Legal Aid Centre provides legal aid free of cost. The varsity took up the matter when the victim’s father approached them.

The compensation of Rs 3 lakh has been the highest granted under the scheme.

J&K set to have law varsity THE GOVERNMENT of Jammu and Kashmir has decided to set up a National Law University on the pattern of National Law School of India University (NLSIU), Bangalore, and National Academy of Legal Studies and Research (NALSAR), Hyderabad. The admission to the proposed university would be through a national level test. There would be reserved seats for students from the state. It will have under-graduate and post-graduate courses. It would offer a doctorate in law. Super specialized courses in business law, corporate governance, human rights, medical law, disability law, environmental law, cyber law and IP law would also be included.

80

August 31, 2015

W

1. Grease monkey.

A: Gorilla B: Mechanic C: Zoo monkey D: Oil sheikh 2. WYMM? A: Will You Meet Me? B: Will You Marry Me? C: When You’ll Marry Me? D. Where You’ll Meet Me? 3. Main squeeze.

A: Main item B: Mastermind C: Important person D: Top leader 4. Study of food.

A: Bromatology B: Allergology C: Enzymology D: Toxicology 5. One simile is wrong.

A: As busy as a lord B: As busy as a beaver C: As busy as a bee D: As busy as a cat on a hot tin roof 6. The oldie said: PDQ. A: Please Don’t Quote B: Pretty Damn Quick C: Please Discuss Quietly D: Please Don’t Quit 7. Up-and-downer.

A: Boring movie B: Labourer

Have fun with English.

Get the right answers.

Play better scrabble.

By Mahesh Trivedi

C: Violent quarrel D: Drunkard

A: Alcohol and nachos B: Only alcohol C: Tequila and nachos D: Cigarette and water

8. Chicklet.

A: Sexy girl B: Children’s chocolate C: Young pig D: Small cigar

15. Cabbage.

9. Sprat to catch a mackerel.

A: Big risk for small gain B: Small risk for big gain C: Tit for tat D: Last-ditch effort

16. Bee’s knees.

10. Hard cheese.

A: Tough customer B: Macho man C: Bad luck D: Obstinate person 11. Montezuma’s revenge.

A: Bloody revenge B: Diarrhoea C: Pardon D: Blitzkrieg 12. Hum-hole.

A: Mouth B: Small hole C: Small office D: Keyhole 13. Stompers A: Bullets B: Shoes C: Goggles D: Coins 14. Mexican breakfast

A: Assistant B: Kids C: Prostitute D: Money

A: Best B: Worst C: Taunt D: Servants 17. Joie de vivre.

A: Feast day B: Joy of victory C: Joy of life D: Faithful friends 18. Correct spelling?

A. Sacrelegious B. Sacrilegious C. Sacrilegeous D. Sacreligious 19. Rand is currency of ….

A: Qatar B: South Africa C: Russia D: Malaysia 20. Scuffer.

A: Thief B: Smuggler C: Policeman D: Waiter

ANSWERS

1. Mechanic 2. Will You Marry Me? 3. Important person 4. Bromatology 5. As busy as a lord 6. Pretty Damn Quick 7. Violent quarrel 8. Sexy girl 9. Small risk for big gain 10. Bad luck 11. Diarrhoea 12. Mouth 13. Shoes 14. Cigarette and water 15. Money 16. Best 17. Joy of life 18. Sacrilegious 19. South Africa 20. Policeman

GNLU hosts exhibition

Y L D R O W ISE

SCORES

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

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

Above 12—Bravo!

Keep it up! textdoctor2@gmail.com

INDIA LEGAL August 31, 2015

81

PEOPLE / Nature’s Fury

TROUBLED WATERS Flood-affected people wade through a street in West Midnapore district, West Bengal

FLOATING MARKET A vendor adjusts a wooden stool at her flooded stall selling vermilion after heavy rains wreak havoc in Kolkata

REMAINS OF A STORMY DAY Local residents walk past debris as a wave hits Port Vila, the capital city of the Pacific island nation of Vanuatu

THUNDEROUS WAVE People look at waves as typhoon Soudelor approaches China, in Taizhou, Zhejiang province

.

— Compiled by Kh Manglembi Devi Photos: UNI

82

August 31, 2015

DAMAGE CONTROL A firefighter battles a spot fire in Lake County, California

COMING SOON ON TATA SKY

RNI No. UPENG/2007/25763

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