India legal 31 december 2015

Bhai gets new Jaan26

By NEETA KOLHATKAR

NDIA EGAL I L

www.indialegalonline.com

December 31, 2015

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STORIES THAT COUNT

Political Paralysis

As the Congress goes on the warpath in defense of its First Family in the National Herald controversy, legislation comes to a full stop Ajith Pillai examines the national fallout Venkatasubramanian untangles the legal intricacies 18

LAW TWEAKED SO BEATLES CAN LIVE ON IN RISHIKESH 58

PAPIA SAMAJDAR Legal ownership race in space 70

TS THAKUR Chief Justice speaks out on arbitration

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

KALYUGA AND THE RULE OF LAW VER since the United Nations adopted the Universal Declaration of Human Rights in 1948, December 10 is observed every year to memorialize this remarkable milestone in the journey of humankind towards the goals of dignity, freedom, equality of opportunity and social and economic justice for all. The international covenants adopted by the United Nations—with India as a signatory to both—are the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Formalized in 1966, these pledges actually commit the world to uphold what are perhaps the highest and noblest values of human civilization as articulated by saints, sages, philosophers, revolutionaries and political visionaries.

Today’s reality, notwithstanding these goals, is that we watch with helpless horror the chaos, blood-letting, massacres, lack of justice, inequalities and the spreading culture of impunity that prevails in every part of the globe. If one has any belief in the ancient Indian theories of yugas (eons), then surely what prevails today is the kalyuga—the dark eon—ruled over by dark knights.

So what do we do? Simply wring our hands or hold our heads in distress and pray to the heavens for relief? Prayer may be comforting and may bring on a personal sense of psychological calm. The practice may even transform you into a better human being and the more the “better human beings”, the more

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December 31, 2015

the progress towards a better world.

But does prayer work for all? Actually, through a process of philosophical introspection, historical experience and practical necessity over the ages there have evolved— simultaneously with the evolution of the human species—formulae prescribed for fighting ourselves out of this black hole into the universe of greater enlightenment. It is my belief that evolution’s ultimate destination is greater harmony, peace and enlightenment. If the human species is not to perish, it must pursue ethics which is a compulsion of evolution.

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he formulae I speak of are not the religious beliefs of ascetics or religious pathfinders—even though many of them may have their origins in religious texts and sermons—but the down-to-earth enunciation and application of precepts by men and women of wisdom designed to make all humankind reach out to and follow “eternal truths” which will make us better citizens of a better world.

One all-encompassing precept is that of human rights which time and again finds utterance in various cultures and in various forms. In ancient India, Raj Dharma bound all kings to bow to basic principles of justice.

It was a version of what we now call the Rule of Law, the gold standard which differentiates democracies and republics from authoritarian regimes, absolute monarchies and banana republics.

In England, Raj Dharma has its origins in King John’s Magna Carta of 1215. One of the most important documents in history, it guaranteed the people certain rights and bound the king to certain laws at a time when England was mainly operated on a feudal system of land ownership. In ancient Greece, the Big Three—Socrates, Aristotle and Plato—were philosophers who critically studied matters of ethics, science, politics and democracy. The French Revolution in 1789 ushered into Europe ideas of “Liberty, Equality, Fraternity”, while the Chartist Movement in England in the 19th Century created a working class pressure group for political freedom.

Perhaps the clearest enunciation of human rights as embodied in legally and constitutionally enforceable “freedoms” was pronounced by US President Franklin D Roosevelt in 1941: freedom from fear, freedom of speech, freedom of worship and freedom from want.

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he Indian constitution is a document which reflects the collective wisdom of progressive liberal minds which have been propelling the principle of human rights, human, freedom and the Rule of Law which are inextricably intertwined. India’s constitutionally protected fundamental rights under various sections and Directive Principles under Article 1V include freedom of religion, speech, movement, association and empower all Indians to seek justice against the state’s wrongdoings. And Prime Minister Nehru warned that governments would ignore these directives “at their own peril”.

The Indian constitution is a formidable testament to the fact that the concept of human rights was central to the collective thinking and vision of the nation’s founding fathers. But has India lived up to the expectations of international conventions and the beliefs of her founding fathers?

The country has tried to, in fits and starts, but the transgressions stick out. I will not go into statistics here, but suffice it is to say that most Indians—despite our highly evolved judicial system—do not have access to

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lawyers or even basic justice. Hundreds of thousands languish without trial, without court-framed charges in jails. This makes a mockery of the very fundamental concept of the Rule of Law without which Human Rights are nothing but a mirage.

Religious hatred-inspired murders, police brutality, extra-judicial killings, the misuse of the law to protect criminals and send innocents and political opponents to jail, fake encounters, torture by police…they are reported liberally in the Indian press.

The silver lining is that they are reported by a relatively free press and from social and political platforms through the exercise of free speech and peaceful assembly.

So what should Indians do to observe Human Rights day? They can study the UN’s pronouncements and make solemn speeches.

Or they can express their gratitude to their own founding fathers by ensuring that they exercise the freedoms they have been given to fight for the preservation of the Rule of Law and freedom and dignity for all.

Some of the best prescriptions to fight ourselves out of many of the evils of Kalyuga exist in front of our very noses—in the Indian constitution. IL

Has India lived up to the expectations of international conventions and the beliefs of her founding fathers? The country has tried to, in fits and starts, but the transgressions stick out.

editor@indialegalonline.com INDIA LEGAL December 31, 2015

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DECEMBER 31, 2015

VOLUME. IX

ISSUE. 08

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya Photo Researcher/News Coordinator Kh Manglembi Devi Production Pawan Kumar Head Convergence Initiatives Prasoon Parijat Convergence Manager Mohul Ghosh Technical Executive (Social Media) Sonu Kumar Sharma Technical Executive Anubhav Tyagi CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari For advertising & subscription queries editor@indialegalonline.com

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

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December 31, 2015

LEAD

Herald of Bad News?

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The Delhi High Court ruling in the National Herald case will make political parties accountable for fund spending. All eyes will be on December 19 when the accused, including Sonia Gandhi and Rahul, appear in court, writes VENKATASUBRAMANIAN. Bitter mudslinging over the verdict has stalled parliament. In such a scenario, democracy is the worst casualty, says AJITH PILLAI

COURTS

Down with Parochialism The Gujarat government’s parochial bid to reserve seats in private medical colleges for non-resident Gujaratis was struck down by the High Court for being unconstitutional. KAUSHIK JOSHI explains why CRIME

New Life for “Bhai” Salman Khan was acquitted in a hit-and-run case by Bombay High Court, thanks to shoddy investigation and a weak prosecution, reports NEETA KOLHATKAR STATES

Haven for Terrorists A porous Indo-Bangladesh border has ensured that extremists, even those from the dreaded IS, have free passage as the BSF and police fumble, writes SUJIT BHAR

12 26 32

BJP’s Gujarat Debacle

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TOURISM

Strawberry Fields Forever

Close on the heels of the Bihar defeat, the BJP suffered visible dents in Gujarat’s self-government polls as it alienated Patels, OBCs, tribals and Dalits. RK MISRA discusses the result

AJITH PILLAI joins millions of Beatles fans in welcoming the Uttarakhand government’s decision to convert an ashram that the Fab Four lived in into a heritage property

LEGAL EYE

INTERVIEW

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Chief Justice of India TS Thakur says that while arbitration is a way to reduce pendency of cases, the legal framework has to change to let it function effectively. RAMESH MENON reports

“Give Credit Where It’s Due”

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Law secretary PK Malhotra has praised Congress PM PV Narasimha Rao and former finance minister Manmohan Singh for the reforms that liberalized our economy.

NEETA KOLHATKAR reports SOCIETY

Family Vs Hindutva Model

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In a multi-religious and multi-cultural society such as ours, family can be seen as a metaphor for India and is more effective than the Hindutva model, argues ABHAY VAIDYA BOOK REVIEW

Left Dissected Praful Bidwai’s book is an objective critique of communist parties and their failures, says AJITH PILLAI. Also, an extract from The Phoenix

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A Long Way to Go

Despite a strong judiciary, India has lagged in implementing global procedures while settling international disputes. Judge Ronny Abraham of the ICJ speaks to NEETA KOLHATKAR HUMAN RIGHTS

US’s Double Standards

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International humanitarian laws were flouted when the US bombed a Medecins Sans Frontieres hospital in Afghanistan on October 3, leaving 30 dead, asserts ANUJ RAINA

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SPOTLIGHT

The Race in Space

With the US allowing its citizens to mine asteroids, the pursuit of land rights in outer space just got keener. PAPIA SAMAJDAR warns other countries could follow suit with disastrous consequences

REGULARS

Integrity matters

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Edit............................................................................... 4 Quote-Unquote............................................................ 8 Ringside..................................................................... 9 Supreme Court........................................................... 10 Courts......................................................................... 16 National Briefs.......................................................30, 31 Is That Legal............................................................... 74 International Briefs................................................ 76, 77 Campus Update......................................................... 78 Figure It Out............................................................... 79 People................................................................... 80, 81 Wordly Wise................................................................ 82 Cover Design: ANTHONY LAWRENCE

Follow us on Facebook.com/IndiaLegalMagazine and Twitter.com/IndiaLegalMag INDIA LEGAL December 31, 2015

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QUOTE-UNQUOTE

“As long as there is rule of law, an independent judiciary and courts are upholding the rights and obligations (of all), I don’t think anyone has to fear anything.”

“Forty percent of Indians don’t have food, homes and other facilities in the country. But intellectuals which make 0.1 percent of the population and the voice of society have a tendency to become a club and the arrogance of that club becomes a burden upon society.”

—Chief Justice of India TS Thakur on the climate of intolerance and its effect in India, The Economic Times

“We will go to Centre, the PM and the President....wherever it is required to ensure that the bill is enacted as law. Aur agar woh paas nahin kartey, toh phir humein apni ungli tedhi karni bhi aati hai (if they don’t pass the bill, we will be forced to resort to other tactics as we know how to have our way).”

“I regret that I could not select judges when there were so many vacancies in the high courts. The judicial process took a long time to determine the constitutional validity of the NJAC...”

—Outgoing chief justice of India HL Dattu, on selecting judges for the higher judiciary, The Times Of India

— Delhi CM Arvind Kejriwal after the Delhi assembly passed the Delhi Jan Lokpal Bill 2015, The Times Of India

“Even if the entire Indian Army comes, they cannot defend people against militants and terrorists.”

— Former Jammu and Kashmir chief minister and National Conference patron Farooq Abdullah, stressing that the Kashmir issue can only be solved through political dialogue, at a seminar on Indo-Pak relations

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—Eminent filmmaker Shekhar Kapur on intolerance at the International Film Festival of India in Goa

“English education can only train us enough to be able to earn our daily bread.... We don’t need such schools but those that teach us to serve for the betterment of other human beings.”

— RSS chief Mohan Bhagwat, at a statue unveiling function of RSS founder KB Hedgewar, The Times Of India

“I am the daughter-inlaw of Indira Gandhi. I am not scared of anyone. I am not disturbed.”

— Congress president Sonia Gandhi to mediapersons, on facing trial in the National Herald case

“I request the government, please do not learn the wrong lessons from Pakistan. Be tolerant. Listen to your people, embrace your own people.

Mahatma Gandhi gave voice to the people. Pakistan became a failure because their leaders crushed voices of their people... were intolerant. Let us not learn the wrong lessons.”

—Congress vice-president Rahul Gandhi in parliament

Aruna

VERDICT “I have always found that mercy bears richer fruits than strict justice.”

Abraham Lincoln

INDIA LEGAL December 31, 2015

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SUPREME COURT

Probe panel gets visitors’ diary T

he crucial “visitors’ diary” from former Central Bureau of Investigation (CBI) chief Ranjit Sinha’s residence was finally made available to the special probe panel by the Supreme Court. The panel, set by the apex court, is investigating whether Sinha’s alleged

Help for acid victims M

aking a case for acid victims, the Supreme Court ruled that the minimum compensation of `three lakh fixed for them was not enough.

The Court also felt that considering the social, economic and personal problems that the victims face, there was a need to slot them as “disabled”.

The Court wanted that they lead a full life.

Being in the disabled category would allow acid victims to get social welfare benefits under The Persons with Disabilities

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(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Court directed all state governments to include acid victims in the disabled category.

The Court was extremely unhappy with the rise in acid attacks all over India despite repeated directions to states to regulate the sale of acid.

It was hearing a case in which the Bihar government meted out shabby treatment to a Dalit girl, Chanchal, with 90 percent acid burns. Her sister was also a victim of an acid attack. They were not accorded proper medical care in government hospitals and a compensation of `2.42 lakh was paid to the sisters by the state government.

The case was brought to the Court by NGO Parivartan Kendra.

meetings with the coal scam accused at his residence led to the dilution of the CBI investigation in the case. The diary allegedly has records of tainted people in coal and 2G spectrum cases visiting Sinha.

The panel head, former CBI special director ML Sharma, was also directed by the court to let other members go through the diary and submit a report within 12 weeks.

In May, the court had ordered that a probe be initiated against Sinha in the light of his alleged questionable meetings with the coal scam accused.

Judiciary and uniform civil code

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t was for Parliament to bring in a uniform civil code and the judiciary was not in a position to either direct the government to introduce it or to legislate it itself, the Supreme Court observed.

The Court, however, made it clear that if a Muslim woman brings a case of triple talaq before it, it will certainly scrutinize its legal validity and protect her fundamental rights.

The court was hearing

a petition from advocate and BJP member Ashwini Kumar Upadhyay whose counsel pleaded that a uniform civil code was essential in India.

His plea: The need to have a uniform civil code is enshrined in Article 44 of the constitution under the Directive Principles of State Policy. It is a goal which the founding fathers envisaged.

Although the petitioner pleaded that there were several cases in which the Apex Court had impressed upon the center to enforce uniform civil code, the Court clarified that the observations only reflected “hope” and “expectation”. But it came down heavily on Upadhyay for being a spokesperson for Muslim women citing gender discrimination.

TS Thakur, the new CJI J

Right to property, a constitutional right R

ustice Tirath Singh Thakur took charge as chief justice of India on December 3, 2015. He took charge from HL Dattu who retired on December 2, 2015.

Justice Thakur will hold the post till January 4, 2017.

Justice Thakur became a Supreme Court judge on November 17, 2009. Among the prominent cases dealt by him are the IPL betting and spot-fixing scam, the Subrata Roy Sahara case and Saradha scam.

Remission is center’s call S tate governments must consult the center and seek its permission before releasing convicts whose cases have been probed by a central agency. A constitution bench of the Supreme Court gave this ruling while referring to the decision of the Jayalalithaa government to release seven convicts in the Rajiv Gandhi assassination case last year.

The Supreme Court had commuted the death sentence of three convicts, Perarivalan, Murugan and Santhan, to life imprisonment in February 2014.

The Jayalalithaa government immediately decided to free them, as well as four other lifers in the case. The center had moved the Apex Court which stayed the move.

After this verdict, the prospects are bleak for the convicts.

The apex court has already ruled that in case death sentence is reduced to life imprisonment, the convict will have to spend their rest of life in jail. It further held that hardened criminals do not deserve sympathy and rehabilitation should not be a issue in their case.

The interest of victims and national cause should take precedence. This is crucial to maintain the rule of law, the court observed.

While commenting on the powers of the state on remittance, the Court ruled that state ought to seek the opinion of the concerned court before pardoning the sentence of a convict.

ight to property can’t be shrugged off or overlooked as it’s a constitutional right under Article 300 A, the Supreme Court observed. It was adjudicating a case wherein a group of farmers in Rajasthan had approached the Court for fair compensation against land acquired by the state government. It ruled that the state government was bound by the constitution to give proper compensation to landowners.

The state government was taken to task by the Court for going back on promises made to farmers while acquiring their properties in 2001.

Regulate social networking sites I

t is not possible to block social networking sites carrying vulgar and offensive material but the government could consider initiating legal action against them, the Apex Court ruled. It asked the center to do the needful.

The Court was responding to a plea from an NGO, Prajwala, which wanted the government to prosecute social networking sites that were being used for disseminating vulgar material. As the center could not check such content, the sites needed to be blocked, it requested.

The center had clarified that it was not feasible to track people who used

mobile phones for uploading sex videos and circulated them through WhatsApp. It also maintained that regulating such material was not possible.

The court’s reaction came after it became aware of two cases: one in which rape videos had been spread through WhatsApp in Mumbai; and the second one in which a sex racket was being managed through Facebook.

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

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COURTS/ Gujarat HC/ Medical Admissions

GOOD NEWS FOR THE AILING The Gujarat court order puts merit over identity in medical college admissions. It comes as a relief for deserving candidates.

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Stop Being Parochial!

R An attempt by the Gujarat government to reserve seats in private medical colleges for non-resident Gujaratis was struck down by the High Court as it goes against the constitution

By Kaushik Joshi

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egionalism has come to the fore in admissions to medical colleges in Gujarat.

Thankfully, in an order dated September 7, 2015, the Gujarat High Court declared invalid a rule framed by the state government to give priority to non-resident Gujaratis (NRGs) for admission to selffinanced (private) medical colleges there.

The division bench of acting Chief Justice Jayant Patel and Justice NV Anjaria quashed and set aside sub-clause (i) of clause (4) of sub-rule C of rule 7 of the Gujarat Professional Medical Education Courses (Regulation of Admission and Payment of Fees), (Amendment) Rules, 2015. The petitioner was Kolsani Sai Yaswanath Reddy

from Andhra Pradesh, but being a minor, it was filed by his father, Kolsani Venkata Nagi Reddy.

FOUR CATEGORIES The petitioner challenged the following order of categories framed by the government for admission to self-financed colleges: Merit list of genuine NRIs who are domiciled in Gujarat Merit list of genuine NRIs who are not domiciled in Gujarat Merit list of dependant NRIs who are domiciled in Gujarat Merit list of dependant NRIs who are not domiciled in Gujarat Gunvant Thakar, advocate for the petitioner, argued that giving reservation for NRIs domiciled in Gujarat was violative of Article 14 of the constitution, besides Article 15(1) and Article 29(2). Article 14 of the constitution says: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territories of India. Article 15 (1) provides that there shall be no discrimination on grounds only of religion, race, caste, sex, place of birth or any of them.”

The petitioner posed some valid questions: Were the four categories based on intelligible differentia, can the concept of NRI and domicile of Gujarat be grouped together and can categorization have a rational nexus with the objects sought to be achieved.

In its verdict, the court observed that “observance of merit criteria for the purpose of admission is in itself ensuring the equality clause and adherence to the tenets of Article 14. In all admissions, especially to the higher courses, the object sought to

A division bench of acting Chief Justice Jayant Patel (left) and Justice NV Anjaria (right) quashed sub-clause (i) of clause (4) of sub-rule C of rule 7 of Gujarat Professional Medical Education Courses Rules, 2015.

AT THE RECEIVING END Students, too, had opposed the government move on grounds that it was a “political whim”

INDIA LEGAL December 31, 2015

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COURTS/ Gujarat HC/ Medical Admissions

After deletion of the words, “who are domiciled in Gujarat”, the merit list will now be made in the following order: Merit list of genuine NRIs and merit list of dependant NRIs. be achieved is maintaining the merit order.

Therefore, any rule of mechanism flowing from the provisions of law or rules which have a tendency of compromising with merit selection cannot be said to have rational nexus with the object intended to be achieved.”

WHERE IS THE MERIT? The court further ruled that the very basis of these categorizations is not only a mismatch to the NRI category seat quota, but operates mischievously vis-a-vis a desired order of merit to be observed for admission of students in the courses. In essence, it said that the rule in question, to the extent it provides for domicile of the state as the basis and the categories devised on those criteria for the preparation of merit list, is violative of Article 14 and therefore, ultra vires. The court ordered the government to delete the words “who are domiciled in Gujarat” in these categories. Following this order, the merit list will now be prepared in the following order: Merit list of genuine NRIs and merit list of dependant NRIs. Meanwhile, the advocate-general for Gujarat prayed that the judgment be stayed for some time to enable the state to move the higher court. The court rejected this and ordered that “the matter pertains to admission process in a medical faculty and the same should not be deferred, as it may result into wastage of an academic year for the students concerned”.

Thakar, the advocate for the petitioner, did not mince words while arguing against the amended rule. He said: “Priority to NRGs (non-resident Gujaratis) in crucial matters like medical admission would be gross injustice to meritorious students.

Making such a rule amounts to parochialism and discrimination.”

Even students were against this move of the Gujarat government. Dr Vijay Nakum, a

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pediatrics resident at Civil Hospital, Ahmedabad, said: “Some political or bureaucratic whim often comes into play during such exams and the students have to suffer.

This year it is the NRG (non-resident Gujarati) over NRIs. Do they realize how agonizing it is for the students?”

AGAINST STATUTE Kolsani Venkata Nagi Reddy, the father of the petitioner, said: “The amended rule was clearly a denial of admission to meritorious students from other states of India. The classification in favor of NRGs is based on territorial consideration which goes against the constitution. It is utterly discriminatory. To provide for reservation on the ground of place of birth is not tenable. Therefore we had to challenge it.”

But what do NRGs feel about this ver-

“Giving reservation for NRIs domiciled in Gujarat is violative of Article 14 of the constitution.”

—Gunvant Thakar Advocate for petitioner

dict? Roshan Shah, an NRG from Canada, cautiously said: “Per se it seems to amount to discrimination against other NRIs. More so, in matters of academic merit. There is no basis for it except a narrow, parochial outlook. NRGs who have settled abroad do not contribute to the economy here in India. If this aims at checking brain-drain, it won’t work as NRG medicos have their eyes on greener pastures abroad.” Shah even advocates mandatory social service in rural areas for all medicos just like conscription in Singapore.

However, Pinakin Pandya, 55, an NRG settled in the US, supports the government move. “Many of us NRGs contribute liberally towards rural development in their native places. Besides, they also chip in at times of natural calamities. So, why shouldn’t they enjoy certain privileges?” he argued.

“It amounts to discrimination against other NRIs. More so, in matters of academic merit.”

—Roshan Shah A non-resident Gujarati Harikrishna Barot, 70, a retired bank employee and an NRG, said: “Why shouldn’t NRGs be considered for privileges?

Whenever the state government issues an appeal for donations in times of floods or earthquakes, NRGs have contributed generously.”

The Gujarat High Court order comes as a relief to students of other states who seek admission to medical courses in selffinanced medical institutions in Gujarat.

Let’s face it: Being an Indian is more important than sticking to narrow, parochial boundaries. IL INDIA LEGAL December 31, 2015

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COURTS

Go-ahead for mobile towers n a significant judgment that is going to stand in good stead for companies installing mobile towers in various places, the Himachal Pradesh High court struck down the plea that they pose serious health hazards.

While quashing a clutch of petitions that pointed to the health implications, the Court observed that there was nothing to prove the connection. It

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came to this conclusion after examining the issue by looking at earlier verdicts in favor of towers and going through research reports.

The High Court’s order ratified the stand taken by Cellular Operator Association of India (COAI) which had been maintaining that a false alarm was being raised about mobile tower radiation affecting the health of people.

Gender equality and govt jobs he Allahabad High Court clarified that the privilege to get a government job after the death of a father or mother—who was a government employee—could not be limited to sons; even married daughters could lay claim to the job.

It observed that married daughters must be treated as part of the “family”, as defined by UP Recruitment of Dependants of Government Servants Dying-inHarness Rules, 1974. Leaving them

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out would be unlawful and against the constitution, it observed.

The Court asked the UP government to give due importance to job claims made by married daughters along with unmarried or divorced ones.

The order came while the High Court was looking into a petition where a claim by a married woman from Azamgarh, UP, had been set aside by the town’s district magistrate.

Probe Tytler further espite CBI closing a 1984 anti-Sikh riots case against Jagdish Tytler and holding him not guilty, a Delhi court felt that the probe done by the central investigating agency was not enough. The case was in relation to Tytler’s alleged role in the killing of three men at Gurudwara Pul Bangash on November 1, 1984.

The court threw light on the “witnesses” whom the CBI claimed as “untraceable”, and observed that they needed to be examined. It also took serious cognizance of arms dealer Abhishek Verma’s stand that Tytler had won over

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the “witnesses”. The court did not wish away Verma’s statement to the CBI that Narinder, the son of key witness in the case, late Surinder Singh, was packed off to Canada on Tytler’s directions and `1 crore was paid to him to retract his statement. It asked the CBI to put Verma to a lie-detector test, if needed. It also wanted the CBI to get Narinder’s account.

The court fleshed out 11 points that needed to be investigated by the CBI. Taking responsibility for the probe, the court pointed out that it would keep a tab on the probe every two months to ensure that all angles were taken care of. It slated the next hearing on February 2, 2016.

VK Singh absolved Delhi court did not permit filing of an FIR against Union Minister VK Singh for his “dog” remark after two Dalit children were burnt alive in Faridabad this October. The court felt that Singh’s comment had been interpreted out of context, twisted and magnified out of proportion to make it seem castiest.

The court also observed that there were prima facie no evidence that Singh wanted to belittle any caste or creed.

Advocate Satya Prakash had sought an FIR under certain sections of the SC/ST (Prevention of Atrocities) Act, the IT Act and the Indian Penal Code. The Delhi Police had already given a clean chit to

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lamming the centre for its sloppy attitude in coming up with a sanction note for additional police force in Delhi, the Delhi High Court

he Madras High Court banned all kinds of protests, demonstrations or rallies in Tamil Nadu in relation to the bringing down of the Babri Masjid, on December 6, starting next year.

The mosque in Ayodhya, Uttar Pradesh, was razed on December 6, 1992, causing widespread riots and escalating communal tension.

The court issued directions to Tamil Nadu chief secretary, home secretary, and director general of police in this regard. It ruled that the order applied to all organizations, irrespective of the religion they belonged to.

The court also did not grant permission to an organization, the Hindu Munnani, to hold protests for building the Ram Temple in Ayodhya on December 6, this year.

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Singh in its action-taken report.

Singh’s comment that the government could not be blamed if anyone throws stone at a dog has triggered a huge controversy and the opposition is gunning for his removal as a central minister.

Sanction police force in Delhi

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No Babri Masjid protest

showed concern over the rising incidents of crime in the capital.

It also took the bureaucracy to task for delaying the matter. The court pointed out that while judges could write reams of pages on a judgment, the bureaucrats could not finish a three-page sanction note in time.

The court did not take kindly to the assurance given

by Additional Solicitor General Sanjay Jain that an interministerial cabinet note was underway. It asked the center to clear the air on whether it was at all interested in augmenting the police force, in the next hearing.

Railways pulled up for apathy hile giving a piece of its mind to the Indian Railways, the Bombay High Court wondered whether the public transporter was at all bothered about the safety and comfort of passengers. The Court was reacting to an online video that showed a person falling off a train on the Central Railways due to overcrowding. It blamed the Railways for failing to make proper arrangements in train coaches and platforms and develop other facilities to keep pace with the rapid increase in the number of commuters.

There was no long-term planning, no clear vision as to how the Railways wished to tackle the issue, the court observed. It also took the Railways to task over its failure to make passengers aware about safety, especially while boarding overcrowded trains.

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PIL on cars in Delhi quashed he Delhi High Court rejected a PIL against the Kejriwal government’s decision to restrict the movement of private vehicles in Delhi from January 1, 2016. The PIL was seeking a stay on the move.

The Court ruled that the objection was too early as the proposal was yet to be implemented.

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

17

LEAD/ National Herald Case

Swamy’s T Dark Herald The Delhi High Court ruling in the Herald case will make political parties accountable for fund spending. All eyes will be on December 19 when the accused will appear before the trial court

By Venkatasubramanian

HE Delhi High Court’s verdict in Rahul Gandhi vs Dr Subramanian Swamy, delivered by Justice Sunil Gaur, on December 7, set off a huge political storm both inside and outside Parliament. The ruling dismissed the challenges to the issue of summons by a lower court to Congress officials in connection with a complaint of misappropriation of party funds.

The judgment provoked the Congress to allege that NDA was encouraging proxy litigation to harass political rivals.

In his judgment, Justice Gaur began by saying that the probity of a legendary national political party was under the scanner in these petitions, which had challenged the issue of summons by a lower court to Congress president Sonia Gandhi, vice-president Rahul Gandhi, party officials Motilal Vora, Oscar Fernandes and Sam Pitroda, journalist, Suman Dubey and the company, Young Indian Private Company (YI), floated by the party.

BACK TO THE WALL? The facts and legality of the case will pose a tough challenge to Sonia-Rahul to emerge unscathed in the trial court

18

December 31, 2015

In this case, which has its origins in the trial court, the maverick BJP leader Swamy sought to expose cheating, fraud, criminal misappropriation, etc., by office bearers of the Congress, who also happen to be directors and shareholders of YI and Associated Journals Private Limited (AJL). AJL was engaged in publishing National Herald, which had a historical association with the Congress during the freedom struggle and even after Independence.

O

n June 26, 2014, the trial court, after recording the evidence of Swamy; a chartered accountant, MR Venkatesh; an official from the Registrar of Companies, Gulab Chand; and journalist J Gopikrishnan summoned the seven accused for offences under Sections 403, 406 and 420 read with Section 120-B of the IPC. Section 403 deals with dishonest misappropriation of property, Section 406 with punishment for criminal breach of trust and Section 420 with cheating and dishonesty inducing delivery of property. Section 120-B deals with punishment for criminal conspiracy.

When AJL had closed the printing and publication of National Herald in 2008, it

owed a huge debt of `90 crore to the Congress. Although this debt had accumulated over a period of time, this was the outcome of interest-free loans extended by the Congress to AJL from time to time.

AJL was a public limited company with immovable assets of crores of rupees. The Congress had assigned the debt of `90 crore to YI on receiving a paltry amount of `50 lakh only.

Both Sonia Gandhi and Rahul Gandhi owned 38 percent each of shares of YI. The debt which AJL owed to the Congress then stood transferred to YI, which was formed in November 2010.

In December 2010, AJL increased its share equity by allotting large chunk of its shares to YI in lieu of the debt owed to the Congress which now stood assigned to YI. Thus, AJL became a wholly-owned company of YI by merely paying `50 lakh and thus, YI acquired complete control of AJL which had real estate assets of at least `2,000 crore, that too in prime areas of New Delhi, Lucknow, Bhopal, Mumbai, Indore, Patna, Panchkula and other places. According to Swamy, the conservative real estate worth of AJL is `5,000 crore.

NAMING NAMES (L-R) Oscar Fernandes, Motilal Vora, Suman Dubey and Sam Pitroda

INDIA LEGAL December 31, 2015

19

LEAD/ National Herald Case

ILLEGAL MOVE? The current owner of the National Herald House, has rented out the property to MNCs and to the Ministry of External Affairs for its Passport Seva Kendra

Swamy (right) alleged that Sonia and Rahul Gandhi had hatched a criminal conspiracy with the other accused to defraud the Congress and AJL by dubiously forming YI to misappropriate the huge assets of AJL.

20

December 31, 2015

Swamy alleged that Sonia and Rahul Gandhi had hatched a criminal conspiracy with the other accused to defraud the Congress and AJL by dubiously forming YI to misappropriate the huge assets of AJL. They thus committed a criminal breach of trust reposed in the Congress and the AJL and its shareholders. He alleged that the rights of shareholders of AJL and its properties had been dishonestly misappropriated by the accused by conversion of a loan of `90 crore into equity shares in favor of YI.

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uriously, while the Memorandum of Association of the AJL bars the company from entering into any transaction which is not for furthering its objective to publish newspapers, YI declared, after having possession of the vast real estate of AJL, that it would not engage in publishing a newspaper as it was against the declared objective submitted for obtaining registration under Section 25 of the Companies Act. The National Herald House is a prime property on Bahadur Shah Zafar Marg in Delhi and was given by the government for the purpose of publishing a newspaper at concessional rates. Yet, YI, the current owner of National Herald House, has rented out this property to MNCs and to the Ministry of External Affairs for its Passport Seva Kendra.

“It is a matter of serious concern as allegations of fraud, etc are leveled against the Congress Party, who has ruled the nation for many decades” — Justice Sunil Gaur (left), Delhi High Court

Such commercial use of property is considered illegal.

In August 2014, the trial court prima facie concluded that YI was created as a sham or a cloak to convert public money to personal use or as a “special purpose vehicle” for

WHY NOW?

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he Congress alleges that the National Herald case against its top functionaries, including Sonia Gandhi and Rahul Gandhi, is nothing short of political vendetta. Its charge rests on the Enforcement Directorate first closing the case in January and reopening it in August this year.

The latter action, the Congress maintains, is linked to two letters written by Dr Subramanian Swamy to Prime Minister Narendra Modi on inaction on the part of the ED director in the matter.

He also demanded the appointment of a new ED chief, whereupon, Karnal Singh (right) was appointed. Seven days after his appointment, Singh issued a circular on August 26 that revoked the order of his predecessor, Rajan Katoch, to discontinue the case.

In his first note to Modi dated August 11, 2015, Swamy, who is also a BJP MP, opened with this point: “It is a matter of surprise that even after more than a year,

acquiring control over `2,000 crore worth of assets of AJL. As all the accused had allegedly acted in consortium with each other to achieve the nefarious purpose or design, there were sufficient grounds for proceedings against all of them, it said.

It was asserted by the accused before the High Court that due to historical and emotive relations, money was advanced by the Congress to AJL from time to time and the party’s objective was to uphold the legacy and tradition of secularism and non-alignment.

The accused also strongly argued that there was no legal bar on disbursement of

the Enforcement Directorate does not have a full time director. The present Director who is holding additional charge as Secretary in the Ministry of Heavy Industry, seems to have no interest in pursuing any matter related to the Congress party perhaps due to the fact that he is a close relative of Mr Digvijay Singh, who is the General Secretary of the Congress Party.”

The letter then goes on to give details of the case involving Sonia Gandhi, Rahul Gandhi and other Congress functionaries and ends with: “....Therefore I urge you to see that a full time Director of the Enforcement Directorate is appointed immediately and that a clear cut direction be given to properly investigate the matter of money laundering submitted to them last year by me in the National Herald scam.”

Swamy dashed off a letter the following day (August 12, 2015), reiterating the “poor functioning” of the ED under

Katoch and gave further details of how the National Herald case was poorly investigated. It pressed for the “immediate appointment of an able, honest and educated high official” as the ED director. Katoch was removed seven days later on August 19. Karnal Singh took over on that very day and reopened the National Herald case in a matter of days.

But the two letters written by Swamy does not take away from the legalities or merits of the case.

— Ajith Pillai

INDIA LEGAL December 31, 2015

21

LEAD/ National Herald Case

The past unraveled…

A chronology of what transpired after National Herald was launched in 1938 by Jawaharlal Nehru

Sep 9, 1938

Nov 23, 2010

Jawaharlal Nehru established National Herald (NH). The masthead had the words: “Freedom is in Peril, Defend it with All Your Might”. K Rama Rao was the first editor. It was run by Associated Journals Ltd (AJL), a “Sec 25” company and had seven shareholders, including Kailash Nath Katju (grandfather of Markandey Katju), Nehru, PD Tandon and Sri Krishna Dutta Poliwal

Young Indian Pvt Ltd incorporated as a “Sec 25” company. Suman Dubey and Sam Pitroda are directors. AICC decides to assign AJL’s `90-crore debt to Young Indian Mar 22, 2002 Motilal

Vora becomes chairman and MD of AJL

April 1, 2008

NH stops publishing

Dec 13, 2010

Rahul Gandhi becomes a director of Young Indian.

He holds 38 percent shares. AJL transfers its entire equity to Young Indian in lieu of the debt.

Young Indian pays AJL `50 lakh

Sep 30, 2008

AJL still has over 1,000 shareholders, including Congress office bearers and businesspersons. Even Shanti Bhushan’s father, Vishwamitra, owned shares in AJL

money to a newspaper, which was closely linked to the Congress.

They cited Section 13A of the Income Tax Act which contemplates “income from other sources” in respect of political parties, which are run on donations and contended that other political parties have also invested money in mutual funds.

Rich Haul These are the properties owned by AJL as per documents produced by Subramanian Swamy and reported by agencies.

A seven-storey building with one lakh

square feet of office space in Delhi A 22,000 sqft building in Indore A 50,000 sqft property in Bhopal A 3,400 sq yard plot in Bandra A two-acre plot in Lucknow A 3,360 sqm plot in Panchkula Properties in Patna

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December 31, 2015

Jan 22, 2011

Sonia Gandhi and Oscar Fernandes join the board of directors. Sonia has 38 percent shareholdings, the remaining 24 percent are equally shared by Vora and Fernandes

They made a pointed reference to the BJP investing in Canstar Fund.

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he accused told the High Court that the constitution of the Congress permits formation of a trust to hold immovable properties belonging to the party, and that there is no allegation that the accused were the trustees of the funds of the Congress. Secondly, it was argued that there was no entrustment of any money to the Congress. Therefore, there is no question of any misappropriation or breach of trust as the donations received by the Congress could be dealt with in the manner it liked.

Thirdly, it was suggested that AJL had no net worth and was unable to repay the debt to the Congress. Fourth, the accused pointed out that neither the Representation of the Peoples Act nor the Income Tax Act or any other Act prohibits giving of loans by a political party. Reliance was placed upon a decision of the Income Tax Tribunal in the

Nov 14, 2011

The paper was slated to come out but didn’t Feb 2013

Subramanian Swamy files a petition in a Delhi court against the four Congress leaders alleging fraud and criminal breach of trust

Aug 1, 2014

Delhi HC issues notice to Swamy on a batch of petitions filed by the Gandhis and others in the case seeking stay on summons issued for August 7

Jan 19, 2015

Supreme Court asks Swamy to make out a case in the Delhi High Court for speedy trial of the NH case.

Aug 26, 2015

ED reopens the case Aug 6, 2014

HC stays proceedings against the Gandhis and others

Dec 7, 2015

Delhi High Court bench refuses to quash summons against Sonia, Rahul

Dec 15, 2014

HC extends stay till disposal of appeals Jan 12, 2015

Dec 19, 2015

The day Sonia and Rahul have to appear before the trial court

Judge recuses himself from hearing Sonia and Rahul’s plea June 26, 2014

Delhi court summons Sonia Gandhi and Rahul in the NH case

Jan 2015

Enforcement Directorate decides to close the case

Bharatiya Janata Party vs Deputy Commissioner of Income Tax [CIT (2003) 258 ITR 1] to maintain that a political party could invest in commercial ventures.

The accused also refuted allegations that writing off the loans by the Congress was an illegal act or that there was breach of trust qua the shareholders of AJL. They relied on a Supreme Court decision in the Bacha F. Guzdar, Bombay vs Commissioner of Income Tax, Bombay (1955) 1 SCR 876 to assert that a shareholder is not the owner of the assets belonging to the company.

The High Court, having heard both Swamy and the counsel representing the accused, concluded that in a democratic set up, how a political party of national stature acts is everybody’s concern. “Rather, it is a matter of serious concern as allegations of fraud, etc. are leveled against the Congress Party, who has ruled the nation for many decades,” the High Court held.

Therefore, the Court repelled the chal-

lenge that Swamy lacked the locus to make the complaint against alleged breach of trust, as he himself was not a victim of such alleged breach of trust, by holding that the right of a private citizen to proceed against the corrupt could not be restricted.

The High Court also noted with concern the impropriety of extending interest-free loans to a separate legal entity, namely, AJL, by the Congress, particularly when the source of the party’s funds is largely from donations given by the public. “Any citizen can legitimately question the siphoning of funds by a political party,” the High Court held, making it legally possible for any future challenge to misappropriation of funds by any political party. In sum, the High Court found sufficient grounds for summoning the accused by the trial court.

With fresh summons being issued by the trial court to the accused to appear before it on December 19, the likely twists and turns in this case would be of interest to everyone. IL

The Delhi High Court repelled the challenge that Swamy lacked the locus to make the complaint, as he himself was not a victim of alleged breach of trust.

It held that the right of a private citizen to proceed against the corrupt could not be restricted.

INDIA LEGAL December 31, 2015

23

LEAD/ National Herald Case/Parliament

Unheralded Crisis Parliament has been plunged into paralysis over the National Herald case with the Congress projecting it as a BJP conspiracy

By Ajith Pillai

24

December 31, 2015

I

T is a truism that when parliament’s functioning is derailed, it is democracy itself that suffers. In the last decade or so we have repeatedly been witness to hostilities in the Lok Sabha and the Rajya Sabha stalling proceedings and causing needless adjournments. More recently, an aggressive opposition first ensured that the monsoon session was a washout. It persisted with its non-cooperation in the winter session resulting in precious time—that should ideally have been devoted to discussing issues of national importance and passage of key bills—being wasted.

Who is responsible for this impasse? It is easy to blame either the opposition or the ruling dispensation. The truth lies somewhere in between. It cannot be denied that the primary task of ensuring the smooth functioning of parliament is the responsibility of the treasury benches. However, the opposition too owes it to people to ensure that the democratic process proceeds without too many hindrances.

Ironically, there was a glimmer of hope that the sabre-rattling would be within permissible limits. Prime Minister Narendra Modi’s meeting with Manmohan Singh and Sonia Gandhi and the placatory noises he

made seeking the support of the opposition were seen as positive signals.

But these efforts were drowned out in the flood of controversies that followed. Contentious issues like intolerance towards minorities and those who propagated views seen as anti-government and anti-Sangh Parivar remained unresolved.

On the contrary, the fires continued to be stoked at regular intervals by the right-wing fringe and BJP leaders who projected the entire intolerance issue as politically orchestrated by anti-national intellectuals.

Indeed, what we have been seeing in parliament is a reflection of the larger ideological war raging outside. It is a battle between those who believe in the Nehruvian ideal of a secular state and those who repose faith in the principles of a strident Hindu rashtra. It is this widening fissure between them that frequently raises its ugly head and has contributed to several controversies.

It also found reflection in the National Herald misappropriation case. Congress leaders are now projecting it as a BJP conspiracy not only against the Nehru-Gandhi family but also as an attempt to “eliminate” the Congress. This charge may be farfetched. But it would best be left for the courts to decide whether the Gandhis are guilty or innocent. This, incidentally, is the official stance of the BJP. But its leaders have all too often not suppressed their glee at the Gandhis courting trouble.

Very clearly, much more needs to be done before the forthcoming budget session vis-avis conflict management. Perhaps, the ruling dispensation and the opposition should initiate a dialogue while parliament is in recess instead of holding last-minute talks before the house reconvenes.

As for the Congress, it must learn to live with the fact that Sonia and Rahul have a long legal battle ahead. But that should not come in the way of it functioning as a responsible opposition. IL

CRIME/ Salman Case

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“Bhaijaan” Walks Free December 10 was a watershed day for Salman Khan as he was acquitted in a hit-and-run case. Like many other cases in India, shoddy investigation and a weak prosecution led the accused to walk free

By Neeta Kolhatkar

26

December 31, 2015

FTER 13 years, the verdict in Salman Khan’s case was straight out of a film. He was acquitted by the Bombay High Court for running his car over five pavement dwellers outside a bakery on Hill Road, Bandra, in September 2002. One person was killed and four injured. The High Court order came after a session’s court in May convicted him of culpable homicide not amounting to murder and sentenced him to five years jail.

On December 10, 2015, as tension heightened in the High Court and people milled around, Salman’s bodyguard, Shera, reached the Court first to survey how best the star could avoid the scores of media persons and innumerable fans, which included bystanders, police, lawyers and even Court staff.

The Bombay High Court suddenly resembled a busy Mumbai street where a film shooting was taking place. Salman entered the gate adjacent to that of the judges’ wearing a white and blue check shirt and sporting a stubble. He had come straight from Karjat and looked tense and exhausted. The judge arrived at 1.35 pm and pronounced the order exactly a minute later.

Delivering the verdict, Justice AR Joshi said: “On the basis of evidence submitted by the prosecution, Salman cannot be convicted.” He added: “Prosecution has failed to establish its case against the appellant accused (Salman Khan) on all charges.”

MANY LAPSES The Court made stringent observations about the conduct of the lower court during this trial and criticized the lapses in police investigation. The judge said: “The burden is on the prosecution to establish the guilt of the accused and this needs to be done beyond reasonable doubt.”

As per observations, the trial in the lower court was based only on the statement of one key eyewitness, Ravindra Patil, who was Salman’s bodyguard and attached to the Mumbai police. Patil was present in Salman’s car at the time of the crash and in May, the session’s court took his evidence while convicting the actor. However, on December 10, the High Court said Patil was not a “wholly

reliable witness”, and his version needed to be corroborated with that of other witnesses.

Incidentally, the case saw 27 prosecution witnesses and one defense witness.

Police investigations could not prove that the person driving the car was Salman. The Court further said the trial court had erred in accepting bills of Rain Bar and Restaurant (where Salman had gone prior to this incident) without ascertaining the blood sample and alcohol test and more so, without a panchanama. The court also questioned why the mandatory procedure of recording the statements of at least five people was not conducted.

This led the Court to observe that investigations were conducted in a faulty manner and had many loose ends and hence, the benefit had to be given in favor of the accused.

Salman was asked to pay `25,000 as a personal bond to ensure that in case Maharashtra went in for appeal to the Supreme Court, he would be present in court. It also ordered the police to return his passport to him.

RELIEVED SALMAN Soon after the verdict, a much-shaken and visibly overwhelmed Salman wept. Later, he intermittently smiled and cried, coming to terms with the fact that the biggest scare (of going to jail) was averted after 13 years.

In September 2002, soon after the incident, Salman was arrested by the Bandra

“On the basis of evidence submitted by the prosecution, Salman cannot be convicted.

Prosecution has failed to establish its case against the appellant accused on all charges.” police after an FIR was registered. His blood sample was collected at JJ Hospital to determine the alcohol content. He was granted bail the same day, but arrested later when he surrendered again before the Bandra police.

Later, after a PIL was filed in the Bombay HC, Salman was directed to pay `19 lakh within two weeks to the victims as compensation. Out of this amount, `10 lakh was to be given to the family of Nurullah Mehboob Sharif, the person who died in the incident.

Hearing the present verdict, Maharashtra Chief Minister Devendra Fadnavis, who is in the midst of a stormy season in the Assembly, said that his government would decide on

Justice AR Joshi, of the Bombay High Court

CRUCIAL EYE WITNESSES Ravindra Patil, Salman Khan’s bodyguard, was the sole defense witness and was not considered reliable by the High Court Singer Kamaal Khan was also present in the car with Salman Khan in 2002

INDIA LEGAL December 31, 2015

27

CRIME/ Salman Case

The court observed that investigations were faulty and had many loose ends and hence, the benefit had to be given in favor of the accused.

YOURS FAITHFULLY Salman Khan’s fan following remains undiminished despite the court cases

the further course of action after examining the HC verdict.

Amit Desai, Salman’s advocate, told the media on behalf of his client: “It is very satisfying. It’s a big relief for him and he is very happy.” Meanwhile, Salman Khan tweeted that he accepted “the decision of the judiciary with humility. I thank my family, friends & fans for their support & prayers”.

WEAK EVIDENCE The legal fraternity welcomed the verdict and said it needs to be respected. However, lawyers felt that the prosecutor and the police did not do a thorough job. Former IPS officer and advocate YP Singh said that if there were faults in the evidence, it could have been sent for retrial and other witness-

28

December 31, 2015

es, including singer Kamaal Khan (who was in the car with Salman), should have been examined. “There could have been further examination of Kamaal Khan and other witnesses that were dropped in the High Court.

Also, the prosecutor did not pursue the case effectively and the police did not match the magnitude of the other party’s legal panel,” said Singh. He added, “They should have appointed a senior counsel, as prescribed under the police manual. In fact, they should conduct an inquiry against the police and prosecute those who saved the accused.” Singh said this procedure is mandatory when strictures are passed against the prosecution and the UNI police by the court.

Advocate Niteen Pradhan told India Legal that the public needs to accept the decision and was critical of the coverage given to this case. “Media trial and public perception do not determine the court’s verdict,” he said. He came down heavily on the media for trying to drive Salman Khan’s case as the national agenda for the day. “We are experts in sensationalizing nonissues. The victim’s widow was to be paid a hefty compensation and one needs to determine whether it was paid to her at the right time. Now she has remarried and has a large family and it needs to be ascertained if this money eventually reaches her or will be used by her family,” said Pradhan.

Immediately after the verdict, pandemonium broke out as hundreds of people descended inside the courtroom and crowded the corridor to get a glimpse of the star.

Court staff even brought family members to see Salman and ran across the dais of the judge. As lawyers and others took selfies with the star from every angle despite a rule prohibiting mobile cameras inside court, the craze over Bollywood stars continued unabated. IL

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NATIONAL BRIEFS

Air filters installed in apex court ising pollution levels in Delhi got alarm bells ringing finally, and the effect was seen in various offices.

Officials from the Central Pollution Control Board (CPCB) visited the Supreme Court and installed air filtering equipment in the courtrooms and on the premises to check for pol-

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Park Street rape accused found guilty lmost four years after 37-year-old Suzette Jordan was gangraped in Kolkata, in what came to be known as the Park Street rape case, a Kolkata court has found three of the five accused guilty of the crime, NDTV reports. Two others, the main accused Kader Khan and Ali, are still absconding. Jordan, who announced her identity in public, died of meningitis this year.

Additional sessions judge Chiranjib Bhattacharya pronounced Ruman Khan, Naser Khan and Sumit Bajaj guilty of gangrape. The trial in the case began only in 2013, delayed by the accused who demanded copies of the crucial CCTV footage that had been sent to Hyderabad for forensic tests.

The accused claimed the case was false.

Jordan was examined and cross-examined over almost six months.

The case sparked furor when political leaders, including chief minister Mamata Banerjee dismissed her allegation stating that she was trying to make the government look bad. The then joint commissioner of police (crime) Damayanti Sen, who originally apprehended Ruman, Naser and Bajaj, was transferred to Barrackpore soon after.

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December 31, 2015

Panel to summon Robert Vadra over land deal he BJP-appointed oneman commission, under former Delhi High Court judge SN Dhingra to probe alleged irregularities in grant of licenses to developers in four villages of Gurgaon, is set to summon businessman Robert Vadra, reports The Indian Express.

The licenses were issued by the previous Congress government

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lutants and shall come up with remedies. Following a PIL by environmentalist MC Mehta on the alarming spurt in air pollution in Delhi-NCR, Chief Justice of India-led bench ordered the CPCB to install air sampling equipment in the Supreme Court.

between 2008 and 2014. When in opposition, the BJP had repeatedly said it would probe the deals if it came to power.

Incidentally, in its report for 2013-14 tabled in the Haryana assembly early this year, the Comptroller and Auditor General had come down heavily on the Department of Town and Country Planning and the Hooda government for helping builders.

Criminalizing of marital rape mooted he center has said that it will introduce a comprehensive law to criminalize marital rape by amending the IPC, CrPC as well as the Indian Evidence Act and was awaiting the Law

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Commission’s report on the issue. “The issue of marital rape is very complicated and it is very difficult to explain and describe it. The cases are of an extreme private nature and no records of any consent are available. The matter has been dealt in detail by a parliamentary committee as well as the Law Commission,” Minister of State for Home Affairs Kiren Rijiju said in the Rajya Sabha while replying to a debate on a private member’s bill.

He said the parliamentary committee in its report has recommended the need for a comprehensive review of the criminal system of law.

The odds of an even car

A bemused bench of Chief Justice G Rohini and Justice Jayant Nath kept receiving requests for change of dates only to ensure lawyers could drive in the city on the proposed dates. The bench had earlier termed the PILs filed against the AAP in this matter as “premature”, saying, “the Delhi government has proposed an idea, which is to be implemented from January 1, 2016, on trial basis for 15 days, so let them try it”.

elhi Chief Minister Arvind Kejriwal got lawyers in a tizzy with the proposed even-odd vehicular policy. Even as the Delhi High Court Bar Association wanted the state government to exempt lawyers from the policy, many advocates started adapting to the proposed plan.

D

Human Rights Day he National Human Rights Commission celebrated the International Human Rights Day on December 10 under the slogan “Our Rights, Our Freedoms, Always”.

In a gathering attended by Chief Justice of India TS Thakur and Union Minister Kiren Rijiju, a resolution was taken to always uphold human rights. Former CJI RM Lahoti also addressed the meeting.

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Close security watch at metro stations

A case of doing too much?

parliamentary standing committee wants Delhi police to increase its visibility and work in close coordination with the CISF at metro stations as they are “vulnerable to terrorist attacks”. It raised concerns about the safety of people from the North-East and pointed out that crime against women “has a disheartening trend,” reports The Indian Express.

n a significant remark on the judiciary’s intervention in CBI investigations, a parliamentary committee headed

by EM Sudarsana Natchiappan has stated: “… various high courts and Supreme Court are frequently issuing directions to the CBI to handle cases relating to Prevention of Corruption Act, 1988 as also of 'public order'.

As a result, the jurisdiction and powers of the CBI have widened and deepened and have far exceeded than what was contemplated under the Delhi Special Police Act, 1946.” It slammed the process of establishing special CBI courts leading to the introduction of a dual judicial system. It said the practice is making the CBI the most sought-after investigating agency and is relegating the state police to the level of home guards, reports The Times Of India.

A

PM clears Real Estate Bill he Union cabinet, chaired by Prime Minister Narendra Modi, approved the Real Estate (Regulation and Development) Bill, 2015 which will now be taken up for consideration by the parliament, reports NDTV. The bill provides a uniform regulatory environment to ensure speedy adjudication of disputes and orderly growth of the real estate sector. It ensures mandatory disclosure by promoters to the customers

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through registration of real estate projects and also of real estate agents with the Real Estate Regulatory Authority. It aims at restoring the confidence of consumers by institutionalizing transparency and accountability in this sector.

“Review ban on gay sex” nion Finance Minister Arun Jaitley said at the Times LitFest in Delhi: “The Supreme Court’s 2014 verdict banning gay sex is not in accordance with evolving legal jurisprudence and the

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court needs to reconsider it.” He said that he supported the decriminalizing of gay sex. He also said that the courts in the country have always upheld and defended the right to free speech and expression.

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—Compiled by Shailaja Paramathma INDIA LEGAL December 31, 2015

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STATES/ West Bengal

In Terror’s W Crosshairs

Infiltration into Bengal from Bangladesh has acquired scary dimensions as IS sympathizers could be among them.

With little collaboration between the BSF and police, could it become another playground for terrorists?

By Sujit Bhar in Kolkata 32

December 31, 2015

EST Bengal’s 2,216.7km porous border with Bangladesh is seeing massive infiltration into India and there are ominous signs that terror outfits, even dreaded Islamic State (IS) sympathizers, may have come in. By unofficial estimates, there are on an average, around 600 illegal entrants into India every day. This, however, is denied by the Border Security Force (BSF). What was mainly an economic issue and a struggle for life has now turned ugly. In the midst, the police, which is responsible for keeping citizens safe by drawing out sensitive information to pre-empt attacks, is restive and short on confidence, laid low by constant political interference.

According to a highly placed source, the police force in border districts has been virtually rendered useless and the BSF, manning the actual border, gets little or no backup information to act upon. The infiltration continues unabated. This is despite the fact that the BSF here has killed no fewer than 15-20 peo-

TERROR KNOWS NO BOUNDARIES West Bengal is India’s new terrorist haven thanks to the porous Bangladesh border. (Above) Yasin Bhatkal was arrested with fake currency in Kolkata

ple every year. Still, terror walked in, when in October 2014, the Bardhaman blast took place.

LAX ADMINISTRATION Looking back, it was found that the fault lay with Indian security nets and poorly shared intelligence. Some time before the blast, Indian Mujahideen (IM) co-founder Yasin Bhatkal had been arrested in Kolkata. But a pathetic lack of coordination between central and local intelligence agencies allowed Bhatkal, travelling on a false identity, to walk away despite being found with a cache of fake Indian currency notes. The result showed up in Pune’s German Bakery blast in 2010, which killed 17 and injuring 60. It was suspected that the raw material for the blast was given to Bhatkal in Kolkata by an IM operative in Nadia, a district bordering Bangladesh. It is believed that fake currency was used liberally to source and purchase raw materials for the blast and also to fund terrorist sleeper cells within Bengal.

Kolkata is fast becoming the center of arms caches and transfers from the border with Bangladesh. This has been proven over and over again in recent years. Yet intelligence, the very plinth on which any security environment rests, has been hacked from inside by political freewheeling.

Ask any officer in-charge of a police station in the border districts and one can find little evidence of pre-emptive arrests. Even if an arrest is made, political dadas land up immediately and virtually order the suspect’s release. Added to that are the fastchanging demographics of these districts, which indicate that influx of people is taking place rather than organic growth. Though the vote bank swells for the ruling Trinamool party—it was little different in the latter stages of the Left Front rule—it has grown to fearsome proportions now and adds to the overall threat perception.

According to a senior IPS officer who didn’t want to be named: “Thanedars have been rendered useless, their capabilities never allowed to be put to use against threats and all men at their disposal rendered puppets of the ruling party.” The result is an absolute vacuum of information and a situation in which any number of terrorist threats can emanate.

HANDS TIED A thanedar India Legal spoke to in South 24 Parganas district, which is extremely susceptible to infiltration, said: “The situation is such that we dare not take any serious action against wrongdoers and people found

There are around 600 illegal entrants into India every day.

But what was mainly an economic issue and a struggle for life has now turned ugly.

DANGEROUS TERRAIN Sleuths on way to inspect the site of the Bardhaman blast. A Bangladesh link to the mishap has been found

INDIA LEGAL December 31, 2015

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STATES/ West Bengal

Kolkata is fast becoming the center of arms caches and transfers from Bangladesh.

This has been repeatedly proven in recent years. Yet intelligence, the very plinth on which any security environment rests, has been hacked from inside by political freewheeling.

with suspected movements. Under law, they can be easily apprehended and may yield important and useful information, leading to further arrests. However, they represent a large section of the vote bank, and with the 2016 assembly elections coming up, the ruling party is in no mood to put public safety over votes.”

The IPS officer points to the demographic change. “Not many years ago, this area had a 40-45 percent Muslim population. I have myself seen it grow to around 50 percent in a few years and now I have information that it has become around 60 percent,” he said. “The rate at which the demographics have changed cannot emanate from organic growth. It can only

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happen through massive, unchecked infiltration.”

So what is the BSF’s job? Would the new fencing being constructed help? “The fencing could help, but the problem remains on two fronts. First, a fourth of the IndiaBangladesh border is riverine, making it very difficult to man and patrol. Also, huge cattle smuggling has resulted in gaping holes in the fencing,” said the bureaucrat.

This theory has been supported by a BSF official who has said that with lack of enough manpower at the border “two BSF jawans with batons would naturally step aside from herds of marauding cattle being driven at full gallop towards the border by smugglers in the dead of night”.

DOING WHAT HE CAN BSF DG DK Pathak has taken some steps to stop infiltration (Left) The logistics for the Pune blast was supplied from Nadia, close to the Bangladesh border

FIREARMS ISSUE Another sticky issue is that while the BSF has advanced night vision equipment (such as LORROS, HHTI, BFSR, night vision goggles), with Bangladesh being a friendly neighbor, firearms are not issued as a regular practice at the border. So, even when they can see infiltrators, they actually have no viable way of stopping them.

The BSF has taken steps in this regard though. BSF director-general DK Pathak reportedly said that his forces had taken an aggressive strategy, with a special joint task force being set up with Border Guards Bangladesh. Mapping of Border on Posts (BOPs) is on too at a fast pace.

Pathak also said: “The earlier stand of

not retaliating to the attacks of infiltrators has led to casualties of our troops. Nonlethal strategy can’t be used at the cost of casualties of our men. We try to follow nonlethal means as far as possible, but not beyond a limit and this strategy has reduced injury and casualty rates of our troops.”

The fence is a deterrent, but when cattle smugglers cut the fence, it is used by infiltrators even before it can be repaired. “That is where local law-keeping agencies—the police force—come into play. They can keep a watch on the local population and immediately spot new people or families and check their credentials,” said the senior official. “Even that is problematic. Political interference means that the infiltrators get their ration cards and Aadhaar cards, voter IDs and other documentation done at a quick pace. Some are able to ‘buy’ land and settle down, even though there is actually no land available to ‘buy’. The forgery will stay hidden in official records for years, maybe decades, before coming to light. Meanwhile, the infiltrators would have become naturalized citizens, adding to the vote bank.”

Police can immediately spot new people or families. But political interference has ensured that infiltrators get their documents at a quick pace.

Some even buy land and settle down even when none is officially available.

ISLAMIC STATE ATTACK What has now has lent an ominous color to this situation is the IS. On November 26, the IS owned up to an attack on a Shi’ite INDIA LEGAL December 31, 2015

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STATES/ West Bengal

BAD NEWS NEXT DOOR Islamic State has assumed responsibility for an attack on a Shi’ite mosque in Bangladesh that claimed one life. Women affected by the tragedy (above) comfort each other

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mosque in Bangladesh that killed a cleric and wounded three. This was the second attack within a month on Bangladesh’s tiny Shia population. It was a completely pre-planned attack, with three young men hiding in the mosque in northwestern Bogra district and shooting men indiscriminately during prayers. Not long ago, two foreigners, four secular bloggers and a publisher were killed in that country.

According to the IPS officer: “It’s just a matter of time before IS sympathizers—believed to be the most brutal of all jihadists—slip into Indian territory. Their immediate work would be to establish themselves within the community in Bengal—as others have—and then source funds from within India and from outside and even use fake currency notes. Having done that, they would not only be in a position to carry out terror attacks within Bengal, but use their bases to infiltrate other parts of the country, quite like a virus. Two major rail stations in Kolkata which are easily accessible from these border districts are Sealdah and Howrah. They connect to the rest of the country,” he said.

But is the state prepared to tackle this?

“Not at all,” he said. “If the BSF is facing several handicaps with a very porous border, the state police has been rendered virtually helpless through political interference. In order to fetch short-term political gains, the state government has allowed long-term destruction to creep in unchecked.”

The policeman corroborated this. “Smalltime felonies these days—like the stealing a chicken—are often leading to riot-like situations. This is new to these areas. We are sitting on a ticking time bomb. The policeman on foot can only travel so much and oversee that much. And when we find suspects, one phone call from him brings the political dadas to the thana. We are people with families and we need our jobs,” said one of them.

What is scary is that the information bank has touched a nadir. The BSF has little to fall back on, and even when this force and the state police collaborate, they come up against fake documentation of suspects, created deliberately to add them to the vote bank. “Petty politicking has struck a death blow to the security atmosphere of this very sensitive area,” says the officer.

And that’s a dangerous game to play. IL

STATES/ Gujarat Local Polls/BJP

Another One Bites the Dust After the Delhi and Bihar poll debacles, the BJP had to contend with a poor showing in Gujarat’s local elections. Not only did it alienate the Patels, but also the OBCs, tribals and Dalits

By RK Misra in Ahmedabad

S

TOO EARLY IN THE DAY Even as the BJP workers celebrated their victory in Ahmedabad in the civic polls, the party got a rude shock in large swathes of the state

UPERSTITION is as much a part of Indian life as salt. So when a flock of crows were found dead outside the BJP office in Ahmedabad on November 22, the first leg of polling to 323 local self-government bodies in Gujarat, it was seen as a bad omen.

The ruling BJP retained six of eight municipal corporations—Ahmedabad, Vadodara, Rajkot, Surat, Jamnagar and Bhavnagar (seen as urban segments)—that went to the polls that day, while the Congress got 10 against the six it held in 2010. In Rajkot, the BJP won by a mere four seats (38 to the Congress’ 34). In Ahmedabad, it was down to 142 as against 151 in 2010. In Surat, it fell to 80 from 98 in 2010. In Vadodara, Bhavnagar and Jamnagar, the BJP won comfortably.

The Congress, meanwhile, improved its tally

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December 31, 2015

Photos: UNI

from 14 (in 2010) to 36 (in 2015).

However, disaster struck in the second leg of polling on November 29 when over 2.6 crore people cast their franchise for 31 district panchayats, 230 tehsil panchayats and 56 municipalities. The Congress swept the district and tehsil panchayats, bagging 23 and 132 respectively against 39 and one it held in 2010. On the other hand, the BJP which controlled 30 of the 31 district panchayats in 2010 was down to a dismal six and its control of tehsil panchayats whittled down to 73 from the 192 it controlled in 2010.

There was a tie in Gir-Somnath and Dangs districts between the two parties.

URBAN VS RURAL The results show that there was a broad vertical divide. While the BJP retained its oldtime urban vote bank, it was swept away

North Gujarat Mehsana

Blow to BJP

Viramgam Ahmedabad

District and tehsil panchayats: Congress bags 23 and 132 seats respectively against 39 and one in 2010.

Central Gujarat Vadodara

Jamnagar

Rajkot

Saurashtra

BJP gets six and 73 against 30 and 192 in 2010.

Bhavnagar Surat

Municipal corporations: BJP wins Ahmedabad, Vadodara, Rajkot, Surat, Jamnagar, Bhavnagar.

Congress wins 10 seats

against six in 2010.

Weakening hold Areas where the BJP was wiped out Tenuous hold

INDIA LEGAL December 31, 2015

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STATES/ Gujarat Local Polls/BJP

COURTING CONTROVERSY The poll reverses have taken the BJP by surprise as Modi had handed over an almost opposition-less Gujarat to CM Anandiben Patel. (Below) The State Election Commissioner, Varesh Sinha, obliged the government in the poll process

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in rural areas where the Congress made a spectacular comeback.

Ironically, the Patels, a solid vote bank for the BJP, did not back the party. They constitute about 14 percent of the total 63 million population of Gujarat and 21 percent voter representation. But this time, they chose to move away from the present establishment headed by a Patel chief minister, Anandiben Patel; a Patel state BJP chief, RC Faldu; a cabinet where seven of 24 ministers were Patels and an assembly where 42 of 182 legislators were also from their community.

Instead, the Patels cast their lot with the Congress, where the top three leaders—state party chief Bharatsinh Solanki, Cong-ress legislature party chief Shankersinh Vaghela and another leader Shaktisinh Gohil—were Kshatriyas.

What began as a demand for caste-based reservation led by Hardik Patel, 22, turned into a fullscale confrontation after a public meeting in Ahmedabad led to a clash with the police which left eight dead. The government’s move to put Hardik and half-a-dozen others behind bars on sedition charges only added fuel to fire.

Such has been the alienation in rural

areas from the BJP that it has been virtually wiped out in Saurashtra and North Gujarat and has just a tenuous hold in Central Gujarat. What’s more, rural Gujarat voted with a vengeance, with 69 percent turnout compared to about 47 percent in urban municipal corporations. Not only did the Patels move away from the BJP, but lastditch desperate attempts to entice OBCs, tribals and Dalits also failed to yield results.

What led to this rural angst was the heavy urban tilt in governance and a feeling of neglect. This was reflected in the state government’s agrarian policies where agricultural land was given to industries while a heavy-handed approach was taken towards rural protests.

While considerably relieved at the showing in urban areas, Anandiben Patel is believed to be disturbed at the rural “washout”.

She has cause to be for if one was to calculate the 182 assembly seats, the Congress has almost drawn even with the BJP. MODI’S CONCERN The reverses in Gujarat are also a matter of concern for the national BJP leadership as this is the home state of Prime Minister Narendra Modi and the Gujarat model of governance has been much bandied about at the national level. During his 13 years as CM, Modi had sent the Congress cartwheeling out of reckoning and handed over an almost opposition-less state to Anandiben. In just 18 months, the Congress is back with a bang in Gujarat and as things stand, seems to be gearing up for a fight during the next assembly elections in 2017. For Modi, after the reverses in Delhi and Bihar, the loss of Gujarat will prove a catastrophe, more so because it will come just two years ahead of the general elections in 2019.

While a change of guard in Gujarat is not likely in the near future, it cannot be entirely ruled out if the slide is not arrested. In fact, the situation for the BJP in urban Gujarat would also have been disquieting were it not for the fact that the State Election Commission (SEC) headed by a retired civil servant of the Gujarat cadre, Varesh Sinha, virtually acted as a “B” team of the state government.

The SEC obliged the government by going

along with it in the promulgation of an ordinance to postpone local self-government elections. Thankfully, the Gujarat High Court intervened and ordered elections to be held promptly, leading the SEC to cut a sorry figure in court.

Even during the holding of elections, the SEC was mired in controversy when over a lakh of voter names was found “deleted”. The Gujarat Congress was scathing in its criticism of the SEC. The Congress, as expected, is upbeat.

State party chief Bharatsinh Solanki has termed the poll verdict as a decisive mandate against the BJP government. Anandiben, on her part, has gone on record to state that she will go back to the drawing board to ensure that she regains the confidence of the rural areas. Already, she has initiated numerous measures to undo the damage.

BJP IGNOMINY The damage has been immense. Mehsana, the home district of Modi, Anandiben and numerous other ministers has fallen to the Congress. Even the village Karnali in Vadodara district, adopted by Union Finance

Minister Arun Jaitley, has chosen to turn its back on the BJP. Unjha, a small town, considered the cumin seed capital of the country and a BJP bastion for over two decades, saw the party facing the ignominy of not being able to put up a single candidate. While the Congress managed to win a seat here, the remaining 35 went to independents, including 18 women.

One saving grace for the BJP was that in Viramgam, the home town of Hardik Patel, it bettered its tally.

Even as the Congress gets ready to drive home the advantage of these elections with a burst of activity, the Aam Aadmi Party (AAP) has also decided to fish in troubled waters. It is in the process of restructuring its Gujarat unit and has appointed regional heads in a bid to provide a “third option” to the people of Gujarat in the 2017 elections. According to Sanjay Singh, an AAP leader from Delhi, his party would organize 50 rallies in rural Gujarat over the next six months.

These local self-government polls have undoubtedly raised the political temperature in Gujarat and the state could see more action in the coming months. IL

NEW CASTE EQUATIONS (Above, L-R) The Patels reposed their faith in the Congress, where AICC spokesperson Shaktisinh Gohil, Congress legislature party leader Shankersinh Vaghela and Gujarat Congress president Bharatsinh Solanki are all Kshatriyas

INDIA LEGAL December 31, 2015

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LEGAL EYE/ Arbitration

Honesty is Not the Monopoly of Judges: CJI Arbitration is an alternate mechanism to resolve disputes and while it reduces the pendency of cases, arbitrators should be people with impeccable integrity, says Justice TS Thakur

By Ramesh Menon

I

Fthe arbitration process has to work well in India, its legal format must undergo a change with professionalism coming in. India had potential to grow in this arena but lack of professionalism on the part of arbitrators and lawyers is bringing a bad name to the country, said Chief Justice of India TS Thakur.

He was speaking at an international conference: “Arbitration in the Era of Globalization” in Delhi, which was organized by the Indian Council of Arbitration (ICA) and FICCI. “Go outside India to figure out why arbitration is not flourishing in India. An arbitrator in India will just sit for two hours for arbitration and is more interested in marking his presence. But in places like London, an arbi-

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trator will sit for eight hours at a stretch as there is professional dedication. Singapore had become popular too because of the legal format it follows. Similarly, if a litigant is paying a lawyer, then the lawyer cannot seek an adjournment to suit his schedule. An arbitration bar should be there to bring in professionalism,” he said.

RESOLVING CASES Justice Thakur said that due to the huge pendency of cases, the judiciary was supportive of the alternate dispute resolution mechanism of arbitration and wanted it to lessen its burden. “We will welcome a system like arbitration as it relieves us of the burden of pendency of cases and helps resolve disputes quickly. We welcome these measures as it

Anil Shakya

consumes less time and money,” he said.

He stressed that the arbitration process must be pure without any extraneous consideration. “Our greatest concern is the integrity of the arbitrator when we are sitting in judgment of an award granted. One of the greatest challenges is to ensure that the arbitrator is of impeccable integrity. The judiciary also needs to be sensitized about how it needs to look at arbitration awards as binding,” he said.

“Honesty is not the monopoly of judges only and the judiciary does not say that the entire system barring judges is suspect…

Arbitrators should have impeccable integrity so that there is no doubt in the minds of concerned parties about the award being decided. When comparison is being made between a judicial arbitrator and non-judicial arbitra-

tor, we can say that the judicial arbitrator has been more reliable and credible," Justice Thakur said.

In a lighter vein, he said that arbitration was also popular in Indian mythology. In the Mahabharata, when the Kauravas and the Pandavas were fighting, Lord Krishna became the arbitrator. He tried to settle the fight by mediating which shows us that mediation is a divine function. But he failed and so the lesson is that if we fail, we must remember that even Lord Krishna failed, he said.

Honesty is not the monopoly of judges… We don’t say that in the entire system, only the judges are honest and everyone else is a suspect.

Arbitrators should have impeccable integrity so that there is no doubt in the minds of concerned parties about the award being decided.

Justice Thakur, Chief Justice of India

STOP DELAYING The government has proposed amendments to the Arbitration and Conciliation Act, 1996, where an arbitrator will have to settle a case within 18 months. However, after the INDIA LEGAL December 31, 2015

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LEGAL EYE/ Arbitration

Photos: Anil Shakya

The judiciary encourages arbitration to lessen the burden of adjudication and solve business disputes. Conditions applied to arbitrators will be a deterrent.

India has set a precedent in judiciary amongst SAARC nations and that could be replicated in arbitration with the support of the government and the judiciary.

The arbitration practice in India should be more contemporary, in line with global standards, making the business environment more stable and certain.

Justice SS Nijjar, former judge, Supreme Court

NG Khaitan, President, Indian Council of Arbitration

Dr Jyotsna Suri, President, FICCI

completion of 12 months, certain restrictions will be put in place to ensure that the arbitration case does not linger on. Justice Thakur said that it was heartening that the government was conscious of this requirement and was considering making amendments.

Justice Thakur said that critics of the judiciary were always pointing to the fact that there was a huge pendency of cases. As India grows and emerges as a huge economy, there are bound to be challenges and there will be a large spurt of litigations when new laws are made and challenged. This was a challenge before the judiciary, he said.

In a country with a population of over 1.25 billion, there are around 15,000 judges in the lower judiciary, 800 judges in the high courts and 30 judges in the Supreme Court,

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besides the Chief Justice. Over five crore cases are processed yearly in India. Out of them, two crores are disposed of despite the lack of infrastructure to do so, he stressed.

Former Supreme Court judge SS Nijjar in his keynote address said that the commercial and legal world had realized that arbitration has to be taken seriously. “India has the tag of how arbitration is for bravehearts and not for the weak. For arbitration to succeed, it must be speedy and the fee structure must be controlled apart from the fact that the arbitrator must be impartial,� he said.

Other topics discussed at the conference were bilateral investment treaty awards, the best arbitration practices, the changing face of arbitration in India and the global scenario. IL

LEGAL EYE/ India’s Reforms

“Rao Architect of Liberalization” The BJP has debunked Congress initiatives, but its own law secretary has praised the ex-PM for opening up the economy

By Neeta Kolhatkar

I

N a bold statement recently, law secretary PK Malhotra said the country should give credit to the Congress government led by Prime Minister PV Narasimha Rao and then finance minister, Dr Manmohan Singh, for initiating the reforms that we are seeing today. Coming on the heels of a diktat from the present BJP government asking bureaucrats to adhere to a certain code of conduct, this statement was surprising.

Malhotra was speaking at a conference on Alternate Dispute Resolution organised by ICDAR (International Conference on Document Analysis and Recognition). He said: "The process of liberalization of the economy in India started in 1991 when PV Narasimha Rao was the PM and Dr Manmohan Singh was the finance minister. With that process of liberalization, foreign firms started coming here and participating in the Indian business community.

And if today, we are seeing any economic reform and stability in our economy as compared to other economies, the credit goes to the reform process that began in 1991."

The law secretary then went on remind the legal fraternity of the need for judicial reforms and especially in the Arbitration and Conciliation Act, 1996. "With international companies coming and establishing their commercial interests here, obviously the number of such disputes is likely to increase and it has increased, thereby necessitating judicial

reforms, which as I said earlier, began in 1996."

ARBITRATION ACT Though he patted the Congress government of 1991 for economic reforms, he did not stop to criticize it for the amendment in the arbitration act.

"Although we had an amendment in 1996 and it was thought that it would be an improvement on the earlier enactment, unfortunately our experience has been that because of the intervention of our courts at every stage at the time of appointment of arbitrator, at the time of passing an interim order and even at the time of the award being given and the appeal, the way Section 34 of the Arbitration and Conciliation Act of 1996 was interpreted, it probably created more problems for the business community," said Malhotra. The objective of quick resolution of commercial disputes was not achieved, he said.

“Justice Madan Lokur had mentioned that when this act was passed, we came to know there were certain deficiencies which needed to be corrected. And the process of correcting or amending this act also began way back in 2003," said Malhotra. IL

UNEXPECTED ENCOMIUM PK Malhotra (centre) believes it’s the former PM and his finance minister Manmohan Singh (right) who ushered in the new economic model

INDIA LEGAL December 31, 2015

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SOCIETY/ Hindu Rashtra Vs Famliy

United India is Like a Family

I

t may sound incredulous, but the fact is that Indian liberals and right-wing organizations such as the RSS have a common meeting point which is fundamental to India’s identity and ethos. Both agree that at the very core of India is its evolution as a pluralistic, multireligious, multi-cultural and multi-ethnic society. This in itself is a good starting point for any discussion on India, although from this point on, the RSS and its political wing, the BJP, take a divergent, divisive path in its pursuit of a Hindu Rashtra.

Consistent with its dream of creating a Hindu Rashtra ― a nation with Hindus and Hinduism at the helm ― the RSS claims that India is fundamentally a pluralistic society because this is the very character of Hinduism. The RSS then rejects the word “secularism” calling it an unnecessary imposition of Western thought on India while interpreting it narrowly as “an equality of all religions” when in fact, secularism means the separation of state from religion and religious influence.

SECULARISM DEBATE While addressing a seminar on secularism in Chennai, senior RSS leader and ideologue Manmohan Vaidya had said that “secularism evolved along the themes of separation of the

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An analogy can be drawn between a close family and a pluralistic, multi-religious, multi-cultural India.

This family model can promote Hindu-Muslim unity more effectively than the Hindutva model

By Abhay Vaidya

Over the centuries, various streams of thought and religions, ranging from Hinduism, Islam, Christianity, Jainism, Buddhism and Sikhism, have contributed to the assimilative and accommodative character of India.

Church and State in Europe and since India doesn’t have a history of theocratic states, the concept of secularism is irrelevant in the Indian context”. He noted that “the Bharatiya tradition has from time immemorial regarded all faiths and sects as one” and therefore, “the artificial injection of secularism is not needed in a society as hospitable and assimilative as Hindu society”.

Union Home minister Rajnath Singh spoke on similar lines on Constitution Day on November 26 when he termed “secularism” as the “most misused term” which caused tension in society and blamed the Congress for introducing it in the Preamble when even the chief author of the constitution, BR Ambedkar, didn’t feel the need for this.

Although the RSS acknowledges India’s pluralistic character, its ideology is fundamentally flawed when it gives the entire credit for Indian pluralism to Hinduism. The fact is that, over the centuries, it is the various streams of thought and religions, ranging from Hinduism, Islam, Christianity, Jainism, Buddhism and newer religions like Sikhism, that have contributed to the assimilative and accommodative character of India.

To therefore assert that Hindutva is the true and only identity of India and the only path forward is extremely divisive as has been witnessed in recent months when the

Photos: UNI

intolerance debate reached its peak. A large number of people of eminence, including superstars such as Shah Rukh Khan and Aamir Khan came under fierce attack from the right-wing for speaking in favor of communal harmony.

IDEAL OF FAMILY Since there is no dispute between the RSS and liberals on India’s fundamental identity as a pluralistic and multi-cultural society, it would go a long way if the ideal of the family with its deep emotional roots is accepted

SYNCRETIC SPACE (Top) Muslims greet Hindus during Kalash Yatra near Varanasi’s Kashi Vishwanath temple.

(Above) BJP, HAM and LJP leaders at an iftar party

INDIA LEGAL December 31, 2015

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SOCIETY/ Hindu Rashtra Vs Famliy

A large, joint family is a more accurate representation of India than the Hindutva model or the sanitized, secular model of Western societies presented as a vision for India by some liberals and intellectuals.

GANGA-JAMUNI TEHZEEB A burqa-clad woman accompanies her son to a Janmashtami fancy-dress gala. (Left) Muslim children celebrate Diwali

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as a metaphor for Indian society. A family that is born of common parentage and stands united against external threats in spite of all the acrimonies and jealousies among its constituents, is the right metaphor for a multireligious society like India. This “family model” could promote Hindu-Muslim unity far more effectively than the “Hindutva model” which will succeed in dividing and destroying India.

Indeed, a large, joint family as a metaphor is a more accurate representation of India than the Hindutva model or the sanitized, secular model of Western societies that is presented as a vision for India by a section of the liberals and intellectuals. Our families as social units are far stronger and stable, carrying secular and liberal values that are also common to various religions.

What are the key features of a successful family? Family members recognize that they are united by blood and that they are children of the same parents. They recognize that they live in a shared space called home

in whose welfare and upkeep they have a common interest. Family members, in particular siblings, recognize that they are all equals, although the eldest among them is accepted as the first among equals. The members of a family help each other in times of distress and are bound by their joys and sorrows. In the normal course, one family member does not rejoice at the misfortune of the other and most certainly, one family member does not rejoice at the death and ruin of a member of his family. Over time, the family grows and makes way for smaller families and everyone lives through all their likes and dislikes, pursuits and passions, fortunes and misfortunes; united, ultimately by an emotional bond. How is this family structure vastly different from a multi-religious and multi-cultural society like India which we incidentally refer to as “mother” India in our imagination, literature and folklore?

People of different religions are like children of the same mother. They are all equals and yet, the Hindus being the most domi-

nant, are like the eldest child in a family, the first among equals with a special responsibility towards all the younger siblings, especially those who are weak and vulnerable.

Being the most dominant or the “eldest” does not give Hindus the right to dominate over others in a dictatorial manner and pursue their self-interest at the cost of others.

The eldest sibling cannot decide what the other siblings should do with their lives just as Hindus cannot decide suo motu whether Muslims can or cannot eat beef. Points of differences have to be decided and settled through collective thought. Why can’t a magnificent Ram Mandir stand next to a magnificent Babri Masjid as a symbol of lasting Hindu-Muslim unity for generations to come? Why can’t this become the modern “Taj Mahal” of our times and be more relevant and meaningful than the marble structure at Agra that is famed for its shape and symmetry?

FUTURE IN JEOPARDY Every constituent of a family is responsible for the peace of the household and this is what is expected of all the communities in a nation. It is better to learn to live and grow together than fight, suffer and destroy our own future, as has been the history of independent India.

The family has to live by rules which apply to all, even as some members are bestowed certain privileges and concessions. This is where a secular state comes in with the provision for reservations and concessions for weaker sections of society.

Just as the RSS-BJP’s attempt to turn India into a Hindu Rashtra could lead to serious civil strife, instability and communal clashes, it is not realistic to expect that a deeply religious society like India will become a sanitized, secular and liberal state like a Western nation simply because the constitution has the best elements of liberal, democratic states in Europe and America.

While being deeply influenced by liberal and secular ideas, both Dr Ambedkar and Pandit Jawaharlal Nehru were fully aware of the challenges before India on her journey as a liberal state. While Dr Ambedkar pointed out that the area of operation of religion is so vast in Indian society that “everything from birth to

Many people of eminence, including superstars such as Shah Rukh Khan and Aamir Khan, came under fierce attack from the right-wing for speaking in favor of communal harmony. death is a part of our religion”, Nehru told French writer and minister André Malraux that “building a secular state in a religious society” was the most serious challenge he faced.

Strong and stable families are an inherent strength of Indian society and it is this vision that must be extrapolated to India’s existence, progress and prosperity as a nation.

Hindus and Muslims need not see one another as mutually opposed but as children of the same mother―just as Swami Vivekananda did. There is no reason for Hindus and Muslims to be trapped in the deeply divisive politics of the RSS, the Uddhav Thackerays and the Azam Khans of this country who play politics on communal lines. It is time to wake up and apply the “family model” to India. IL INDIA LEGAL December 31, 2015

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BOOK REVIEW/ The Phoenix Moment

Photos: UNI

Saving What’s Left While Praful Bidwai’s critique of the Left is sympathetic at one level, it doesn’t pull any punches when it comes to addressing flaws that have dogged the communist movement in India

By Ajith Pillai STRUGGLING TO STAY RELEVANT (L-R) Left leaders D Raja, AB Bardhan, Prakash Karat, Sitaram Yechuri and S Sudhakar Reddy at a dharna in protest against the rigging and Trinamool terror in West Bengal during the 2014 Lok Sabha elections

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T

HOSE who have followed Praful Bidwai’s writings would be well aware of the fact that he was not only sympathetic towards Left ideology but also reposed immense faith in its ability to bring about social transformation and equitable and inclusive growth. Yet, despite his own commitment, he was never blind to the flaws in

the functioning of communist parties in India which were supposed to translate Marxian concepts into contemporary reality. In fact, more than anything else, his book, The Phoenix Moment—Challenges Confronting the Indian Left reflects the writer’s honesty and objectivity in critiquing the Left and is thankfully, not an attempt to justify or whitewash some of its cardinal failings.

Having said that, Bidwai’s fervent hope

CONSTRUCTIVE CRITICISM Praful Bidwai is frank in describing the shortcomings of the Left

is that communism will bounce back as he believes it is “indispensable to the health of Indian democracy. If it did not exist, we would have to invent it”. The book’s title is self-explanatory. It’s the author’s effort to look at what such a reinvention entails.

HISTORICAL PERSPECTIVE But in doing that, the writer does not attempt to editorialize on the issue. That would have been the easy way out. Instead, Bidwai has taken the trouble to delve deep into history and look at what went wrong with the Left in post-Independent India and how past mistakes can be and ought to be rectified.

This is an in-depth study which may upset some of the author’s communist friends, particularly politicians. But as constructive criticism, it should be welcomed because Bidwai is not treading the clichéd path taken by right-wing pundits— failure of collectivism, state intervention and the public sector—when they attempt to run down the Left. On the contrary, this

Bidwai says that the Left did a blunder when it stood with the BJP in opposing the Indo-US nuclear deal. Once in power in 2014, the BJP endorsed this very deal. book is an attempt to see what role the communist movement can play in our present times when several contexts have sharply changed following the breaking of the Berlin Wall and the advent of globalization.

According to Bidwai, instead of waking up to the changes, Indian communists worked largely within a framework “inherited from the Communist International” some 90 years ago. It went by a rigid formulaic understanding of various issues, based on the experience in another era in another context. It is this adherence to outdated concepts and style of functioning that has reduced the Left to the margins.

That is why he makes a fervent plea for INDIA LEGAL December 31, 2015

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BOOK REVIEW/ The Phoenix Moment

According to Bidwai, the Left has been reduced to the margins as it goes by a rigid understanding of issues, based on experiences in other eras and contexts.

NO MORE ON STRONG TURF Opposition leader and CPM member VS Achuthanandan addressing a dharna in Thiruvananthapuram in September

Photos: UNI

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the emergence of a New Left free from the baggage of the past.

The author gives a candid insight into what went fundamentally wrong in the Left’s dogged adoption of old models. He says in the book: “The Left embraced the notion of socialism which led it to regard the Soviet Union, and later China, as models, which they are not. It has long failed to define a coherent project of socialism for the twenty first century, and to identify

possible pathways that might connect it to the present. The Left did not develop an India-specific understanding of caste, gender, tribal and ethnic identities, nor a political strategy that could help translate that understanding into a realizable, practical project. At another level, it lacked an analysis of the specificities of Indian capitalism, the nature of the state, and the character of the ruling class, especially since the 1990s.”

LEFT EROSION The writer’s criticism of the Left is indeed sharp. Bidwai does not spare words in recounting the Left’s erosion in electoral terms even in Kerala where it once was an unassailable force. It now remains content with sharing power alternatively with the

WHEN THE BASTION FELL (L-R) Mamata Banerjee’s Trinamool Congress has captured West Bengal’s imagination, which returned Left stalwart Jyoti Basu to power for five consecutive terms

Congress-led United Democratic Front. In West Bengal, it suffered an ignominious rout at the hands of the Trinamool Congress and is yet to recover and its cadres are demoralized.

He also notes that the links of the communist parties with trade unions and kisan sabhas have weakened over years, corroding its mass base. Meanwhile, the Hindu right, says Bidwai, “has come to power nationally under one of its most rabidly communal leaders. The Right’s ascendancy will mount further pressure on Left, aggravating its crisis.”

One of the historic blunders of the Left which the writer includes is the one in 1996 when a non-Congress-non-BJP Third Front was unanimous in its choice of Jyoti Basu as the prime minister. This was an opportunity for the Left to play the lead role in the government. But the choice of occupying 7 Race Course Road was not left to Basu but to the CPM politburo. It voted in favor of being part of the central government but the central committee of the party overruled it and the Left missed the bus.

The other blunder, according to Bidwai, was the position the communists took vis-

à-vis the Indo-US nuclear deal in 20072008. In this case, the Left stood with the BJP in opposing it.

According to the author, it was a tactical error since after coming to power in 2014, the BJP did a U-turn and “enthusiastically” endorsed the very deal it had opposed for purely political reasons.

The book comes at a time when it is a make-or-break moment for the Left.

Bidwai’s burden is that it either introspects on its flaws and weaknesses and undertakes a “radical course correction” or persists with what it is doing now and maintains the status quo. If it chooses the latter option, then the downward slide may not be arrested. In fact, the process will only speed up.

This engaging book will, no doubt, trigger a debate among those interested in the health of the Left movement in the country. Bidwai, who passed away in June at the age of 66, will be happy if that happens.

One must end by pointing out that the size of the book must not intimidate prospective readers. Of its 586 pages, only 352 constitute the main text and the preface. The rest is devoted to notes and appendices. IL

THE PHOENIX MOMENT— CHALLENGES CONFRONTING THE INDIAN LEFT

By Praful Bidwai Publisher: HarperCollins Price: `599, 586 pages

INDIA LEGAL December 31, 2015

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BOOK EXCERPT / The Phoenix Moment

Anil Shakya

Lost Opportunities This excerpt from Praful Bidwai’s book explains the “nuclear-nationalist trap” the Left found itself in opposing the Indo-US nuclear deal

UNFOUNDED CRITICISM? (Above) Left parties protesting against the 2008 Indo-US nuclear deal in New Delhi

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HE US-India civilian nuclear cooperation agreement, inked in 2005 and finalized in 2008, made a one-time exception for India in the global nuclear commerce regime by permitting the sale and transfer of nuclear materials to India for its civilian programme although India is not a signatory to the Nuclear Non-Proliferation

Treaty (NPT) or any other nuclear restraint agreement. The special waiver was rationalized on the ground that India is ‘a responsible state with advanced nuclear technology’, with which the US sought to forge a ‘global partnership’….

The Left parties pilloried the nuclear deal on a number of grounds: it would further consolidate the US-India ‘strategic partner-

UNI

ship’, making India Washington’s subordinate ally; it would interfere with India’s sovereign decision making in nuclear matters, including programmes linked to the production of plutonium and other weapons-related materials; it would not ensure full civilian nuclear cooperation or guarantee uninterrupted fuel supply on the part of the US, as promised; it would impose extraneous ‘nonnuclear’ conditions on India, such as a commitment to support a Fissile Material Cutoff Treaty at the UN Conference on Disarmament. Besides, the legal agreements and US legislation that the deal involved would not be compatible with Indian ‘self-reliance in the nuclear sector’. Thus, in all these ways, the deal would violate ‘the national interest’.

The Left was virtually silent on the deal’s impact in weakening the global non-proliferation regime thanks to the special exception it made for India, which set a dangerous

Leave alone large numbers of the general public, the Left could not mobilize even sympathetic middle-class individuals on a significant scale on the nuclear deal issue. precedent. The Left also did not question the safety and ecological sustainability of nuclear power generation as such, although expanding it was officially presented as the key to India’s energy security and ‘decarbonization’ of its energy economy. The Left primarily confined itself here to commenting adversely on the high costs of imported reactors, while arguing for ‘indigenous’ reactors—in reality, pressurized heavy water reactors designed by Canada—and rationalizing the fantasy of India’s ‘three-stage’ nuclear power programme, with thermal or normal uranium-fuelled reactors in the

US’ NUCLEAR FEARS (Above) Protestors demonstrate against the US nuclear deal with Iran at the Times Square, New York, in July

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BOOK EXCERPT / The Phoenix Moment

The Left was virtually silent on the deal’s impact in weakening the global non-proliferation regime thanks to the special exception it made for India.

MAN OF THE MOMENT (Above) As foreign minister in 2008, Pranab Mukherjee was a key member of a joint committee set up by the UPA to focus on nukedeal objections

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first stage, fast-breeder reactors in the second stage, and eventually, thorium-fuelled reactors.

The central thrust of the Left’s attack on the US-India deal was founded on unrefined nationalism, which made decision making in respect of nuclear weapons the litmus test of national sovereignty—contrary to the classical socialist stand which vests sovereignty in the people, and holds that there is no such thing as ‘the national interest’ which can be separated from the interest of the dominant or ruling class. This stance pushed the Left into the arms of the hawks within the nuclear establishment, typically former officials of the Department of Atomic Energy (DAE), which is in charge of both the military and civilian nuclear programmes.

Some of the hawks opposed the deal either out of blatantly national-chauvinist considerations, or because it would drive the Indian government towards a policy of nuclear restraint, a prospect they loathed.

Yet others opposed the original terms of the deal (for instance, on bringing India’s fastbreeder reactors under the purview of the civilian programme and hence IAEA inspections), but only because they wanted to drive a better or stronger bargain on the civilian power front. Most of them did not share the Left’s strategic rationale for opposing the deal (namely, that it would bring about a US-India strategic alliance, and compromise Indian sovereignty).

Yet, the Left joined hands with them, as also did the BJP from time to time. (The BJP ultimately voted against the deal, out of the purely opportunistic tactical calculation of toppling the UPA government; on coming to power in 2014, it enthusiastically supported the deal.). At the very least, the Left’s crude nuclear nationalism eclipsed, if it did not practically undermine, the contribution it had itself made to the cause of peace and social sanity in 1998 by opposing and condemning India’s nuclear tests and demanding that its nuclear arsenal be dismantled….

At any rate, the Left’s nationalist stance did not evoke a strong popular response.

Leave alone large numbers of the general public, the Left could not mobilize even sympathetic middle-class individuals on a significant scale on the nuclear deal issue.

The Left parties, with their parliamentary leverage, however succeeded in persuading the UPA to set up a joint committee to look into their objections to the nuclear deal. A key player in the committee was the then foreign minister, Pranab Mukherjee, who had a line of communication open with the Bengal leaders of the CPI(M). The committee held nine meetings between September 2007 and June 2008, which failed to resolve UPA-Left differences. Eventually, the UPA stuck to its guns and even refused to hand over to the Left a copy of the draft of the safeguards agreement to be signed with the IAEA: it only presented a brief note on the agreement’s salient features and took it back.... IL

TOURISM/ Uttarakhand/Beatles ashram

Here Comes the In a happy initiative, Uttarakhand has decided to convert an ashram the Beatles lived in into a heritage property rather than tweak forest laws for commercial reasons. A happy moment for Beatles fans!

By Ajith Pillai

SUMMER OF LOVE The Beatles in India with Maharishi Mahesh Yogi (centre) along with others

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I

f you are a Beatles fan, then, this would surely qualify as good news. On December 8, while the world solemnly remembered that day in 1980 when ex-Beatle John Lennon was shot dead outside his New York apartment building by a crazed fan, the Uttarakhand government, some 11,500 miles away, formally opened the gates of what is referred to by tourist guides in Rishikesh as the “Beatles ashram”.

By doing so, the state government may have unwittingly entered the book of Beatles memorabilia. The ashram in the holy town of Rishikesh is the Chaurasi Kutia built in 1961 by the Transcendental Meditation (TM) guru, Maharishi Mahesh Yogi. It was here that the Fab Four—as the Beatles are referred

to—spent a few months in 1968 to meditate and introspect. It was also here that they composed over 40 of their songs.

SAD DECLINE But after the glory days of the 60s when celebs rushed here, the ashram fell into bad times. It started with the then Uttar Pradesh government terminating the 20-year lease of the 19.81 acre land in 1981. Reason: the ashram land fell within the newly demarcated Rajaji National Park and Tiger Reserve and forest land could not be leased out.

However, the ashram continued to function out of the premises till 2003, after which it was formally abandoned.

Since then, Chaurasi Kutia has been in a state of disrepair till it was recently refur-

Sun in Rishikesh

Pushpender Singh

bished and opened to the public. When it was abandoned, a board outside identified it as forest land and banned the entry of visitors into the scenic property overlooking the Ganga. Now the notice has been formally revoked after approval from the National Tiger Conservation Authority to allow ticketed entry into the ashram (`150 for Indians, `600 for foreigners). According to Neena Grewal, director of the Rajaji Tiger Reserve, the ruins of the ashram will soon be declared and maintained as a heritage site.

But ban or no ban, the ashram has been frequented by Beatles fans from across the world. All it takes is a ` 150-tip to the forest guard for one to sneak in through gaps in the barbed wire and set off on a magical mystery tour. It will take you through winding forest paths to the egg-shaped futuristic igloo-like meditation cubicles where the rich and the famous used to go. Graffiti, drawn by ardent fans, on the walls of the dwelling quarters and community halls remind you of the

Ever since the ashram was abandoned, many had been eyeing the land. There were several attempts by hoteliers and real estate developers to grab the property.

Beatles, their songs and the Maharishi in his flowing robes with the signature line “Jai Guru Deva” which famously formed the refrain of the Beatles song, “Across the Universe”.

How such pristine forest land was handed over to the Maharishi remains a mystery. But back in the 1960s, conservation was not a priority and the Guru enjoyed tremendous popularity and clout to get the land.

SAVING FOR POSTERITY (Left) The egg-shaped futuristic igloo-like meditation cubicles at Chaurasi Kutia, late Maharishi Mahesh Yogi’s erstwhile ashram; (Right) Children on a tour of the ashram

PROPERTY GRAB Ever since the ashram was abandoned, many had been eyeing this land. There were several attempts by hoteliers and real estate developers to grab the property. India Legal has INDIA LEGAL December 31, 2015

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TOURISM/ Uttarakhand/Beatles ashram

Photos: Pushpender Singh

GOING BACK IN TIME (From top) The refurbished ashram is now a tourist-friendly place; A section of the ashram that proclaims it as being a part of the Rajaji National Park

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learnt from sources that setting up an upscale Beatles resort was among the proposals once mooted by a prominent hotel group. It goes to the credit of the Uttarakhand government that it did not give in to pressure and has decided to preserve the ashram as a heritage property accessible to the public. It was not agreeable to tweak any forest land laws.

There was even a proposal to use the ashram land to build a home for Delhi’s street children. This idea was mooted in 2007 by Maggie O’ Hara (aka Prabhavati Dwabha), a struggling Hollywood actress who gave up the silver screen in the 1970s and headed to India seeking spiritual solace

and enlightenment. Since then, she has dedicated her life to running schools for the poor in India. She said she would establish a home for 2,500 street children and a job training centre on the ashram for 500 women.

According to her proposal, the project would be financed by an eco-friendly hotel on the campus where guests could share the same space that was once occupied by John Lennon, Paul McCartney, George Harrison and Ringo Starr. When she first submitted her proposal, O’Hara told The Washington Post that she was determined to make something out of the ashram which was going to seed. “Helping India’s children would be in the spirit of what the Beatles were in India searching for: generosity, optimism, kindness. It’s a terrible shame that the Beatles’ ashram is lying in waste. It could become a model for other centers to be built like it around the country,” she had told the paper.

However, her plans came to naught as they found no favor with the government which was not prepared to hand over forest land even for an altruistic cause. Other efforts to make commercial use of the ashram campus were relentlessly pursued.

Mahesh Yogi died on February 5, 2008, at the age of 90 in Vlodrop, Netherlands. But much before that, he had faded into oblivion.

The ashram that he abandoned in Rishikesh continued to draw tourists because of the Beatles connection. The few months that the Fab Four spent there in 1968 is almost a must visit for the band’s devoted following.

CULTURAL ICONS It was an evolved Beatles that came to Chaurasi Kutia in 1968. They had by then shed their boy band image and put their syrupy songs of the I Want to Hold Your Hand and Love Me Do period behind them and got down to more serious writing. They were fresh from the critical and commercial success of their epic 1967 concept album Sgt Pepper’s Lonely Hearts Club Band which has been described in the Encyclopaedia of Popular Music as “no mere pop album but a cultural icon embracing the constituent elements of the 60s youth culture: pop art, garish fashion, drugs, instant mysticism and freedom from parental control”.

Yesterday Once More!

Some of the Beatles songs which were penned in Chaurasi Kutia: Back in the USSR: It was Paul McCartney who penned this upbeat track. He even played it on an acoustic guitar to Mike Love of the American band, Beach Boys, who was staying at the ashram. Love suggested adding something about girls from Ukraine and Georgia to give the song a Russian touch.

duo took time out from meditation and went tiger hunting on elephants. They even killed a tiger. John Lennon wrote a sarcastic song on the incident. These caustic lyrics upset Nancy: “He went out tiger hunting with his elephant and his gun/ In case of accidents he always took his mom/ He’s the all American bullet headed Saxon mother’s son/ All the children sing, Hey Bungalow Bill, what did you kill, Bungalow Bill...”

had the line “Maharishi, look what you’ve done, you made a fool of everyone.”

Fearing litigation, all references to the guru were taken out and “Maharishi” was replaced with “Sexy Sadie”.

Blackbird: McCartney’s song was written in the woods surrounding the ashram and used finger-style picking on the guitar which he learnt from Donovan.

While My Guitar Gently Weeps: The musical progression was worked out by Harrison at the ashram with help from folk singer Donovan. The latter played a descending progression based on a Bach piece and that sparked off the central guitar motif in Harrison’s song.

Mother Nature’s Son and Child of Nature: Both songs were based on Maharishi’s lecture, called “Son of Mother Nature”. Paul McCartney’s Mother Nature’s Son found its way into the White Album. John Lennon’s Child of Nature was later turned into Jealous Guy in his solo album, Imagine.

The Continuing Story of Bungalow Bill: The song is about socialite Nancy Cooke Herrera and her son Riki who came to the ashram. The mother-son

Sexy Sadie: This was originally written

by Lennon attacking the Maharishi and

But the band, which had stopped live performances and touring in 1966, was also trying to live with the loss of their manager, Brian Epstein, who died of a drug overdose on August 27, 1967.

His death left the band rudderless and drew it more towards eastern mysticism and spirituality.

The Beatles first met Maharishi Mahesh Yogi in London in August 1967 and had then gone off to attend one of his seminars in Bangor, Wales. When he suggested a trip to the ashram in the Himalayas, they agreed.

The Fab Four were in good celebrity company when they reached Rishikesh in February 1968. These included actress Mia

Mean Mr Mustard: The song fragment

by Lennon was included in the Abbey Road album. He described it as “some crap I wrote in India”.

Farrow, her sister, Prudence and brother, John, Mike Love of the Beach Boys, Scottish folk-rock singer Donovan, flautist Paul Horan, sculptor and songwriter Gyp Mills, socialite Nancy Cooke de Herrera and Canadian director Paul Saltzam.

IDYLLIC PLACE Chaurasi Kutia provided the perfect backdrop for Lennon, McCartney and Harrison to set down song ideas and lyrics, figure out melodies and riffs. In fact, several tracks which figured in the group’s November 1968 untitled double album, referred to as the White Album because of its blank white space cover, had songs from the Rishikesh

“Regardless of what I was supposed to be doing, I did write some of my best songs there.”

—John Lennon remembering his days in Chaurasi Kutia

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TOURISM/ Uttarakhand/Beatles ashram

The Beatles first met Maharishi Mahesh Yogi in London in August 1967 and later attended one of his seminars in Bangor, Wales.

When he suggested a trip to his ashram, they agreed.

Photos: Pushpender Singh

LYRICAL STROKES (Top and above) Graffiti, drawn by ardent fans, at the ashram

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phase (see box). Years later, Lennon remembered his days in Chaurasi Kutia in an interview: “Regardless of what I was supposed to be doing, I did write some of my best songs there.”

How seriously did the band take to meditation and the Maharishi? The Beatles apparently took it lightly after the first few days.

They treated the trip as a good break from the madness of London.

Prudence, who took her sojourn at the ashram in all earnestness, did not fail to notice their casual approach. “I would always rush straight back to my room after lectures

and meals so I could meditate. John, George and Paul would want to sit around jamming and having a good time.”

In fact, Prudence was so obsessed and lost in her transcendental meditation that Lennon was even asked at times to make her snap back to reality.

He composed a song on her detached existence titled, “Dear Prudence” which later figured in the White Album.

It is scraps of such memorabilia that could enliven a visit to Chaurasi Kutia.

Right now, Rajaji Tiger Reserve authorities have put up new signages identifying the various jungle trails, but something more needs to be done to bring to life the glory days of the ashram in the heady Sixties and its place in counter-culture history.

What the Beatles visit did was to give a quantum push to western interest in eastern spirituality.

Suddenly, philosophy, mysticism, music and yoga from this part of the world got a big boost. Young men and women who wanted a break from western materialism and the rat race took the next flight out to India. One holy town on their itinerary was Rishikesh.

It still is.

This is the reason why Uttarakhand tourism must maximise on the legacy and iconic status of the ashram in musical culture. IL

INTERVIEW/ Judge Ronny Abraham

“India Resolving Commercial Disputes in the Best Way�

With greater liberalization, India was exposed to the demands of international arbitration. However, despite a strong judiciary, it has lagged behind in judicial reforms and implementing international procedures while dealing with disputes with different countries. Often, these have acquired political overtones, causing a blemish on India's credibility. Most international parties opt to settle conflicts in the International Court of Justice in The Hague, London or Singapore, as India's alternate arbitration and mediation facilities are seen as time-consuming and expensive. At a recent conference on Alternate Disputes Resolution (ADR) organized by the International Conference on Document Analysis and Recognition (ICDAR), JUDGE RONNY ABRAHAM, president of the International Court of Justice (ICJ), The Hague, told NEETA KOLHATKAR that international commercial relations had given rise to more cases on diplomatic protection issues 64

December 31, 2015

With increasing foreign investments from countries with different judicial systems, is the world today facing more commercial disputes? How does the ICJ deal with these cases?

Yes, you are right. With globalization and liberalization, disputes have increased over the years. With countries and private parties having commercial interests in different countries, this is bound to happen. Also, every country has different rules of judiciary. The International Court of Justice gives top priority to settlement of international disputes related to commercial activities. We even tackle complex issues involving diplomatic issues.

“With countries and private parties having commercial interests in different countries, disputes have increased over the years. While the International Court of Justice gives top priority to the settlement of disputes related to commercial activities, we even tackle diplomatic issues.”

Ronny Abraham, president, ICJ

India has been inundated with an increasing number of commercial disputes. But it has a long way to go before establishing ADR of international standards. Why do international parties who invest in India prefer to go to The Hague, London or Singapore in case of a dispute?

India, like other countries, is handling more and more commercial disputes and is finding the best ways to resolve these disputes peacefully through judicial, arbitration, mediation and other means. I have heard the efforts that are going on. I cannot state any preference but I will definitely speak of the work we do and the issues we tackle.

Can you mention a case that stood out?

I would like to highlight the role of the International Court in handling

Diplomatic Protection. We are getting more and more such cases. On May 24, 2007, there was a case of Guinea versus the Democratic Republic of Congo (DRC). Our court gave its decision based on preliminary objections raised.

The case concerned a claim of diplomatic protection by Guinea, which alleged that Congo had violated the rights of its national, Ahmadou Sadio Diallo, by expelling him and confiscating the property he owned and controlled in Congolese companies.

The Court held that the state of a shareholder who has invested in a foreign company could not diplomatically protect him. This was because, if the company possessed its own separate legal personality, although two separate entities may have suffered from the same wrong, it is only one entity whose rights have been infringed. An act

directed against and infringing on only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected.

This decision severely restricted the diplomatic remedies available to shareholders in foreign companies operating in foreign jurisdictions.

There is also a judgment by ICJ in the Brazilian Traction case which creates a nearly insurmountable barrier to foreign shareholders hoping to protect their investment based on general principles of international law. Since the Court concluded that shareholders’ interests constitute indirect interests which do not warrant international legal protection, a claimant state cannot espouse the claim of its nationals who have invested in foreign corporations unless treaties specify otherwise. IL INDIA LEGAL December 31, 2015

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HUMAN RIGHTS/ Geneva Conventions

An Unequal War The Geneva Conventions are meant to protect civilians during war. But nations have flouted these with impunity, leading to collateral damage in places like Afghanistan and Yemen

By Anuj Raina

GHOST TOWN Remains of the MSF Hospital in Kunduz, following the US strike

W

AR doesn’t have many rules. Though it is often romanticized as a fair confrontation, the reality is quite different. Modern combat is usually about fighting as unfairly as possible.

It entails eliminating the enemy as efficiently as possible, while exposing oneself to as little risk as possible.

Insofar as rules go, there are a few that

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most nations have agreed to, as codified by the Geneva Conventions of 1949. These confirm immunity for civilians, hospitals and medical staff. Also, the 1977 Additional Protocols to the conventions state: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”

The rule is that civilians must not be directly targeted for military attack. Also, wounded, sick or shipwrecked military personnel, who are considered to be hors de combat (out of action due to injury), are pro-

COMPLICIT IN THE ATTACK? According to the US military’s investigation, the military’s headquarters at Bagram (left), had been informed of the impending attack, with exact location of the hospital.

tected, as are prisoners of war.

One of the oldest references to conduct in war can be found in the Mahabharata, where a discussion takes place between Bhishma and Yudhishthira concerning what constitutes acceptable behavior on a battlefield.

According to Bhishma: “One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him.... War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him.”

Let’s fast forward to 2015. International Humanitarian Law (IHL) is a legal framework applicable to situations of armed conflict and sets in when two or more parties engage in an armed confrontation. These may be international or non-international in character. The application of IHL is not dependent on a declaration or formal recognition of war. Broadly speaking, international law (along with its subordinate IHL) is based on three pillars: Treaties, customs and general principles.

Only states that have taken necessary and sufficient steps to bring a treaty into force are bound by its terms. Even if a state is not party

to a specific IHL treaty, many of its rules reflect customary international law.

These rules came into play recently when Médecins Sans Frontières’ (MSF) trauma hospital in Kunduz, Afghanistan, came under precise and repeated airstrikes on October 3, 2015. The main building, which housed the intensive care unit, emergency rooms, laboratory, X-ray, outpatient department, mental health and physiotherapy ward, was hit during each aerial raid, while the surrounding buildings were left mostly untouched. It left at least 30 dead, including 10 patients, 13 staff and 7 unrecognizable bodies. When the attack occurred, there were 105 patients in the hospital and 80 MSF staff who were on duty.

This was done despite the Geneva Conventions saying that hospitals, ambulances, medical aircraft and medical personnel are entitled to protection from hostile fire, provided that the structures are marked with a red cross or red crescent and not used improperly or near military objectives.

The Geneva Conventions specify that civilians must not be directly targetted. Also, wounded, sick or shipwrecked military personnel, who are out of action due to injury, should be protected.

FATAL ERROR By the US Department of Defense’s own admission, MSF had provided the GPS coordinates of the trauma hospital to the US INDIA LEGAL December 31, 2015

67

HUMAN RIGHTS/ Geneva Conventions

On October 3, 2015, MSF Trauma Hospital in Kunduz, Afghanistan, came under precise and repeated airstrikes.

Around 30 were killed.

EQUAL TREATMENT The Geneva Conventions state that enemy combatants, including insurgents like the Taliban, should be cared for if they are wounded

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December 31, 2015

Department of Defense, the Afghan Ministry of Interior and Defense and the US Army in Kabul less than a week before the airstrike.

The attack continued for more than 30 minutes despite MSF informing the NATO command in Afghanistan and US military officials in Kabul and Washington that it was a hospital being hit.

According to the US military’s investigation of the incident, the medical facility was misidentified as a target by its personnel who believed they were striking a different building several hundred meters away where there were reports of Taliban fighters. The hospital was on the military’s so-called “no-strike list”.

A minute before the firing, the crew transmitted the coordinates of their target to their headquarters at Bagram Airfield, north of Kabul, giving the accurate location of the hospital.

MSF’s hospital in Kunduz was the only facility of its kind in north-eastern Afghanistan, providing free life- and limb-saving trauma care. Since its opening in 2011, more than 15,000 surgeries were conducted and more than 68,000 emergency patients were treated. The hospital has been substantially destroyed and is no longer operational.

INDEPENDENT PROBE MSF has now demanded an independent investigation by the International Humani-

tarian Fact-Finding Commission (IHFFC) to establish the facts of this event. IHFCC is not a UN body; it was created in 1991 by Additional Protocol 1, Article 90 of the Geneva Conventions that govern the rules of war. It was set up to independently investigate violations of humanitarian law such as attacks on hospitals which are protected in conflict zones.

Although the US military has formally apologized for the incident with suspended members accepting that the “cause of this tragedy was avoidable human error, compounded by process and equipment failures”, it has categorically rejected accusations of war crimes and calls for independent inquiries.

Far more troubling are the broader implications of the US military’s report on the incident. They indicate deep, systemic failures at every level of the US military’s chainof-command. At no point were US forces in visual contact with Taliban fighters; they relied on the reports of Afghan soldiers, who reported taking fire from the hospital.

Moreover, the US military’s Central Command had the precise GPS coordinates of the hospital’s location and yet bombed it.

Counterterrorism expert and executive director of Delhi-based Institute for Conflict Management Ajay Sahni points out the double standards of the US. “One of the justifica-

tions the US gave for the attack was that Taliban insurgents were using MSF hospital as a base. That doesn’t hold water. If you remember, at the UN, the US itself was pushing to condemn Sri Lanka, which killed civilians who were being used as human shields by the LTTE. So targeting insurgents using civilians as human shields in Afghanistan is illegal as well,” he says.

CULTURE OF IMPUNITY The US is not the only power that has recently been accused of violating IHL by targeting medical facilities. An examination of conflict zones shows a disturbing culture wherein states wage war disregarding the Geneva Conventions with impunity.

Airstrikes carried out on the night of October 26 by the Saudi Arabia-led coalition in northern Yemen destroyed a hospital supported by MSF. Miraculously, no one was killed. Hospital staff and two patients managed to escape before subsequent airstrikes occurred over a two-hour period. With the hospital destroyed, at least 2,00,000 people now have no access to medical care.

Less than two months later, on December 2, another airstrike carried out by the Saudiled coalition hit a clinic in southern Yemen run by MSF, wounding nine people, including two MSF staff. Three airstrikes initially targeted a park in Taiz city’s Al Houban

district, 2 km from MSF’s clinic. The MSF team immediately evacuated the clinic and informed the Saudi-led coalition that their jet planes were mounting an attack nearby.

Regardless, the clinic itself came under attack a short while later. The hospital’s GPS coordinates were regularly shared with the coalition and the roof of the facility was clearly identified with the MSF logo.

While the US and others have often implied that MSF provides medical care to wounded insurgents and enemy combatants, such criticism is utterly baseless insofar as IHL goes. Geneva Conventions clearly state that so long as they refrain from any act of hostility and do not attempt to escape, the wounded and sick—of all parties—must be collected and cared for. Medical personnel, units, and transports under the control of those parties have so-called “special” protections under IHL. Moreover, under IHL not only warring states but also “organized armed groups”, at least pursuant to Additional Protocol II, may control their own medical personnel, units, and transports. Those organized armed groups may thereby extend “special” protections to the medical personnel and objects under their control.

So obviously, though rules are laid down, it isn’t necessary that they will be followed with care. IL

CRIPPLING EFFECT The destroyed MSF facility in Yemen following Saudi Arabia’s October 26 attack

INDIA LEGAL December 31, 2015

69

SPOTLIGHT/ Space/Property Rights

Buy Me the Moon!

Photo Imaging: Anthony Lawrence

With the United States signing an act allowing its citizens to mine asteroids, the race for property rights in outer space will get keener. And with a weak Outer Space Treaty, the repercussions could be scary

By Papia Samajdar 70

December 31, 2015

O

N November 25, 2015, Barack Obama signed the US Commercial Space Launch Competitiveness Act which allows US citizens and companies to mine asteroids. What caught the attention of everyone is a provision in it for extension of property rights to US companies and citizens legalizing the “ownership” of asteroids. This means that if they can retrieve minerals, metals or resources from outer space, they can keep it.

The Act says: “Any asteroid resources obtained in outer space are the property of the entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations.

A US commercial space resource utilization entity: *Shall avoid causing harmful interference in outer space *May bring a civil action in US district court for any action by another entity subject to US jurisdiction causing harmful interference to its operations with respect to an asteroid resource utilisation activity in outer space.”

LAWLESS US This is one of the biggest steps in terms of extension of property rights to outer space.

However, is the US allowed to extend property rights to its citizens when it’s bound by international law which universalizes outer space and celestial bodies? The new law provides US jurisdiction with respect to outer space activity if a domestic company or citizen is involved, which is in violation of the Outer Space Treaty, 1967. This international treaty, which the US is a signatory to, does not give it the right to own, obtain or transport resources.

The US justifies its law by saying that it is not against the international treaty and that it has not given sovereign rights for the celestial body, but merely extended its right to economically exploit resources affirmed by the state practices.

The Outer Space Treaty, or the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including Moon and Other Celestial Bodies,

NASA

russianspaceweb.com

1967, has 104 countries as signatories. The treaty seeks to ensure peaceful activity in outer space and specifically prohibits states from parking weapons of mass destruction there. The treaty emphasizes that outer space belongs to everyone, and exploration and study would be done to benefit everyone. No one state can either claim sovereignty of jurisdiction in outer space. Article 2 of the Treaty states that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Article 4 of the Treaty leaves the supervision of outer space with the international

UNMINDFUL SPACE ACTIVITY? (Top) More than 1,000 active satellites orbit the Earth as of now (Above) The new US commercial space launch law legalizes the ownership of asteroids

INDIA LEGAL December 31, 2015

71

SPOTLIGHT/ Space/Property Rights

India must look into the effects of outer space activities. It should maintain that outer space property can’t be appropriated and any extraction of resources can't happen without an international instrument, from spacefaring nations.

Photos: UNI

MISSION SUCCESSFUL (L-R) PM Modi congratulating ISRO Chairman K Radhakrishnan after the launch of Mars Orbiter in September 2014; ISRO scientists watch on screens display the graphics of Mars Orbiter Mission at ISRO complex, Bangalore

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December 31, 2015

community. There was a Moon Agreement (or the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979), which was a follow-up to the Outer Space Treaty. It was an attempt to establish a regime for the use of Moon and other celestial bodies. However, it failed to muster enough support as only 16 nations were signatories to it.

ENVIRONMENTAL IMPACT Outer space activity has seen a sudden rise, thanks to technological development during the Cold War era. Currently, 11 countries have space launch capability and over 60 own and operate approximately 1,100 active satellites orbiting the Earth. In the absence of a strong regulatory instrument, outer space is already crowded. Negligence and technological breakdown has caused enough damage to satellites, without any move to clean the debris. As a result, approximately 20,000 soft ball-sized debris are floating around the Earth.

This hyper activity is harmful enough, not to mention unknown imprints on Earth. If the US space mining law and others proceed to tamper with

the pristine environment, Earth’s immediate environment could suffer damage. The impact of space activity is unknown as governments don’t release enough data for the public on the issue. A feasibility study to understand the fallout of these activities does not seem to have crossed the minds of these mining companies.

Too much tampering might also spoil the clues crucial for the discovery of outer space life forms and other secrets the celestial bodies might hold.

Contamination of outer space with our bacteria might also adversely affect the atmosphere and ruin our chances of discovering how life on Earth might have evolved.

SPACE RACE Apart from the grave environmental impact of extra-terrestrial mining of resources and tampering with outer space, the US move could well trigger an international race to own and exploit asteroids and other celestial bodies. The US law has set the stage for other countries to come up with their own domestic laws which will permit resource mining.

Currently, with a handful of spacefaring countries, the Earth’s orbit is a crowded and dirty place. With time, the race will get faster and dirtier.

Countries such as Russia and China and

The US justifies the new law by saying that it is not against the international treaty and it has not given sovereign rights for the celestial body, but merely extended its right to economically exploit resources affirmed by the state practices.

UNI

even India can, in all likelihood, extend property rights of celestial bodies to their citizens without claiming sovereignty over them, just as the US mining lobby is doing.

Currently, the US accounts for 75 percent of the worldwide government funding for space and the US government or industry owns and operates roughly 40 percent of all active spacecraft in orbit. However, Russia and China follow closely.

As regards Russia, Article 2 of the Law of Russian Federation “About Space Activity” Decree No. 5663-1 permits “operations to explore and use outer space including the moon and other celestial bodies”. Article 4, however, restricts monopolistic and entrepreneurial activity, while Article 8 hints that their federal space program shall be elaborated taking into account conditions in the world space market.

The US law is enough ground for Russia to develop its own space program.

INDIA’S STAND India does not have a domestic law or policy with regard to outer space activity though it is a signatory to both the Outer Space Treaty and the Moon Agreement. However, it has been active in space explorations and has a number of satellites orbiting Earth. These

are used for mapping, communication, defense purposes, etc.

The Indian Space Research Organization (ISRO) has already showed the world its advanced technological capabilities by putting forward the Mars Mission Orbiter in one attempt and at a very low cost in September last year. India for the first time entered the Mars orbit. Until then, ISRO was dealing mainly with launching satellites.

Though the impact of the US law is futuristic, US mining companies are already investing and developing technology which will enable them to begin mining asteroids within a decade.

In the wake of increasing outer space activity, India needs to gear up and consider the repercussions of these activities. Our country and the international community should maintain that outer space property cannot be appropriated and that any extraction of resources cannot happen without a proper international instrument, which spacefaring countries should be signatories to. Also, a liability regime should be put forward.

The future when celestial bodies will be mined is not far. However, mankind should refrain from being irresponsible in outer space activity so that we don’t witness catastrophic consequences. IL

SPACE WAR? (Above) The US law on asteroid mining could well trigger an international race to own and exploit asteroids and other celestial bodies

INDIA LEGAL December 31, 2015

73

IS THAT LEGAL?

Surrogacy ban justified Surrogacy services for foreign couples have been banned in India.

Is that not a violation of an Indian woman’s right to livelihood?

The Indian government has banned surrogacy services for foreigners due to concerns raised over the largely unregulated industry. In many surrogacy agreements, poor women are sucked into it because of the money involved, thus heightening the risk of exploitation and abuse.

These women enter into lucrative

contracts as foreign couples pay much more than what they would have received in the country for such services.

As of now, only Indian nationals who cannot have children can commission wombs, a practice that has created a $1-billion industry in the country. The same viewpoint has been submitted by the centre before the Supreme Court wherein the government said it does not support commercial surrogacy.

Concern for disabled The disabled in India have fought many legal battles for their rights, especially for getting government jobs. Is the government not serious about their welfare?

The constitution mandates taking care of the disabled. The Government of India itself is committed to their welfare. It has set up national institutes to deal with various types of disabilities. There are Composite Regional Centers set up by the Ministry of Social Justice and Empowerment in different parts of India for their rehabilitation.

The National Handicapped Finance and Development Corporation provides loans to the disabled at concessional rates for self-employment. There are many NGOs supported by the government that work for the welfare of the disabled. There is a separate Department of Disability Affairs, under the Ministry of Social Justice and Empowerment for the disabled.

Perils of online shopping Several online shopping portals often do not deliver the same stuff that they display on their websites. There are also cases where the concerned company did not return the money when the customer rejected products. Can a buyer take legal action?

Any person buying a product online must follow the Latin term, Caveat emptor, which means “let the buyer beware” or implying that the buyer should know that product may be either defective or may fail to meet his or her expectations. This is a consumer law principle.

Having said that, the terms and conditions given on websites must be read carefully

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December 31, 2015

before ordering a product. Generally speaking, websites do have a detailed policy for product rejection or replacing it, and the buyer must go through the policy details carefully before the order is given.

It is prudent to opt for “cash on delivery” method. The buyer is well within his or her right to check the product delivered at his or her doorstep before signing the delivery receipt and paying the amount.

If a customer feels that he or she has been cheated, a complaint can be filed to the company itself for redressal. And if there is no action, one can approach a consumer forum or even go to a consumer court.

— Answers by Shailendra Singh Illustrations: UdayShankar

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MURALI KRISHNAN Taslima Nasreen’s exclusive interview

AJITH PILLAI Indrani’s mess gets messier

42

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VIPIN PUBBY: Identity crisis hits meat 40

BIKRAM VOHRA: Air travails of the disabled 64

RK MISRA: Wanting a Womb 26

R RAMASU Bad blood BRAMANIAN: Madras HCin 42

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INTERNATIONAL BRIEFS

A case for abortion T

he Belfast High Court has ruled that abortion legislation in Northern Ireland, which currently allows termination of pregnancy only if a woman’s life is at risk or if there is a permanent or serious risk to her mental or physical health, is a breach of human rights law.

The Guardian reported that the Northern Ireland Human Rights Commission (NIHRC) took up the case to extend abortion to cases of

Pak hangs Peshawar school attackers

P

akistan has hanged four men linked to last December’s massacre at an army school which killed over 150 people, most of whom were children, reports Al Jazeera.

Hazrat Ali, Mujeeb ur Rehman, Sabeel and Abdus Salam were convicted for their involvement in the attack. They were identified as members of the Toheedwal Jihad Group, a previously unheard of faction of the Pakistani Taliban.

The men were sentenced to death by a military court and are the first to be hanged in relation to the attack. Taliban militants stormed the Army Public School in the north-western city of Peshawar on 16 December 2014.

The massacre prompted a crackdown on Islamist militants, the establishment of military courts to try terror suspects and the resumption of capital punishment after a six-year moratorium.

76

December 31, 2015

No place for terrorists

A

ustralia has sought to strengthen anti-terrorism measures, passing a bill that will strip Australian dual nationals of their citizenship if they are suspected or convicted for terrorism. The

Olympian Pistorius convicted of murder

O

lympic athlete Oscar Pistorius has been found guilty of murder after a South African appeals court overturned an earlier manslaughter verdict, reports NBC News. Pistorius killed his girlfriend Reeva Steenkamp in February 2013 after shooting her four times through a locked toilet door.

South Africa’s Supreme Court of Appeal ruled that the lower court did not correctly apply the rule of dolus eventualis—whether Pistorius knew that a death would be a likely result of his actions.

A five-judge bench presided over by Judge Eric Leach reached a unanimous verdict, concluding that Judge

serious fetal malformation, rape or incest. A judicial review found the grounds for abortion should be extended in Northern Ireland. The UK’s 1967 Abortion Act does not apply to Northern Ireland.

In his ruling, Justice Horner said women who were the victims of sexual crime and cases of fatal fetal abnormality were entitled to exemptions. Attorney General John Larkin said that he was “profoundly disappointed” and was “considering the grounds for appeal”.

new law was one of the several terrorism-related legislations passed in the country’s upper house, the BBC reported.

Australia has been a significant source of jihadist foreign fighters in the Middle East, with at least 90 Australians having joined groups such as the Islamic State of Iraq and Ash-Sham.

About half of them are dual citizens.

The new laws apply only to such individuals and will not allow anyone to be left stateless, echoing measures proposed by French President Françoise Hollande following last month’s terrorist attacks

by ISIS in Paris.

Thokozile Masipa, who gave the original verdict, made “fundamental errors” and that elements of the ballistics evidence were “seemingly ignored by the trial court.”

The six-time Paralympic gold medalist faces up to 15 years in prison under South African law.

Hungary challenges EU migrant quota

H

ungary filed a legal challenge to the European Union's plan to distribute 1,60,000 asylum-seekers among member states under a quota system, a day after fellow bloc member Slovakia filed its own lawsuit against the mandatory quotas, at the European Court of Justice in Luxembourg, according to Hungary Today.

Under the EU quota system, both Budapest and Bratislava are expected to take in around 2,300 migrants each.

In September, Hungary voted against the scheme together with the Czech Republic, Slovakia and Romania at an EU meeting, revealing a deep split between western

and eastern bloc members.

Nearly 8,60,000 migrants have landed in Europe so far this year, with many fleeing violence in Syria, Iraq and Afghanistan. Hungary was a key transit country for people trekking along the western Balkan route to reach northern Europe, until it sealed its southern borders with razor-wire fencing in October.

Probing Blatter in FIFA bribery scandal

T

he US Federal Bureau of Investigation is probing suspended FIFA chief Sepp Blatter’s role in a $100 million bribery scandal, the BBC reported.

Blatter, who has led the organi-

zation since 1998, has denied knowledge of wrong-doing. He and two other FIFA officials were suspended for 90 days by its ethics panel in October.

Sports marketing company International Sport and Leisure paid a total of $100 million, including payments to two men, one of whom was indicted former Brazilian soccer chief Ricardo Teixeira, the other exFIFA president Joao Havelange of Brazil, according to the BBC. In exchange for that money, ISL received lucrative television and marketing rights throughout the 1990s, the BBC said.

Guantanamo prisoner “mistakenly” held

T

he US Government has admitted that a prisoner held at Guantanamo Bay for 13 years may have been detained as a result of mistaken identity, reported ABC News.

Mustafa al-Aziz al-Shamiri, a 37year-old Yemeni, is now thought by US officials to have been a low-level Islamist fighter and not an al-Qaeda courier and trainer, as originally believed.

A report, written by the Pentagon, presented to the hearing

said that while Al-Shamiri had admitted to interrogators that he had fought in Yemen’s civil war in 1996 and for the Taliban in Afghanistan in 2000-2001, officials wrongly thought he had a more significant role because he was confused with someone else who had a similar name.

Brazil’s President faces impeachment

T

he speaker of Brazil’s lower house of Congress, Eduardo Cunha, agreed to start impeachment proceedings against President Dilma Rousseff, raising pressure on the beleaguered leader at a time when she is grappling with a severe economic downturn and a colossal graft scandal in her government.

Voice of America reported that the move was instigated by Cunha, who is himself battling charges in a bribery case. A vote in Congress on whether to impeach Rousseff is expected to involve weeks of delicate political negotiations, making it challenging for proceedings to culminate before a holiday recess in December end.

Rousseff, who earlier called an emergency cabinet meeting, said she was confident that the impeachment motion would be rejected. Two-thirds of the lower house must approve the process. The governing coalition has a majority in the lower house of Congress.

—Compiled by Anuj Raina INDIA LEGAL December 31, 2015

77

CAMPUS UPDATE

Upcoming Moot Court Competitions

H

idayatullah National Law University, Raipur, is organizing the 8th Justice Hidayatullah Memorial National Moot Court Competition in memory of the 11th chief justice of India, Justice Hidayatullah, on February 19-21, 2016. The subject is International Environmental Law and International Law. The last date to register is

Award for Outstanding Contribution

P

rof (Dr) Sukh Pal Singh, Vice-Chancellor, Hidayatullah National Law University, Raipur, was conferred the prestigious “Award for Outstanding Contribution to Education” at the 23rd Business School Affairs & Dewang Mehta National Education Awards, 2015, in Mumbai on November 28.

This award was in recognition of his leadership development, innovation and industry

interface of the institute. The award was received by Dr Deepak Kumar Srivastava, registrar in-charge, on behalf of Prof Singh.

R

78

KIIT Conference on International Law

T

Institutional Excellence Award for WBNUJS

ecognizing its contribution to innovative legal education and multi-disciplinary research on contemporary legal issues, Society of Indian Law Firms (SILF) and Menon Institute of Legal Advocacy Training (MILAT), Thiruvanan-thapuram, conferred on West Bengal National University of Juridical Sciences (WBNUJS), Kolkata, this year’s SILF-MILAT Institutional Excellence Award.

The award acknowledged the

January 10, 2016.

Meanwhile, the New Law College, Pune, is organizing the 6th Justice PN Bhagwati International Moot, to be held from March 19 to 20, 2016. This is in honor of Justice PN Bhagwati, the 17th chief justice of India and an eminent jurist. The last date of registration is January 5, 2016.

law university’s consistently good record of academic performance and contribution to legal scholarship, with a large number of research publications and some innovative extension services.

he International Law Society at KIIT School of Law, Bhubaneswar, is organizing the 1st KIIT National Conference on International Law to provide students a platform to deliberate upon the theoretical as well as practical aspects of International Law. The conference, to be held from January 15 to 17, 2016

will facilitate an interaction between students, practitioners and academicians. The registration closes on December 30, 2015.

Call for papers at NLSIU

I

ndian Journal of Law & Technology (IJLT), focused on the study of the interface between law and technology and published annually by the National Law School of India University (NLSIU), Bangalore, is now accepting submissions. These are: articles (5000-12000 words), essays (3000-5000 words) and case notes, legislative comments, book and article reviews (2000-6000

words) in the areas of intellectual property rights, internet governance, information communication technologies, access to medicines, privacy rights, digital freedom, telecommunications policy, media law and innovation. The last date for submission is January 31, 2016.

— Compiled by Sherien Kaul and Priyvrat Singh Chouhan December 31, 2015

FIGURE

IT OUT Internet users in India increased by 5.2 crore in the first six months of 2015—from 30.2 crore to 35.4 crore

by June 2015.

The Union government has announced a list of 98 cities that will be developed as smart cities.

A report published by World Health Organization in December 2014 says that 13 of the top 20 most polluted cities are from India—Delhi, Patna, Gwalior, Raipur, Ahmedabad, Lucknow, Firozabad, Kanpur Amritsar, Ludhiana, Allahabad, Agra and Khanna in Ludhiana district of Punjab.

A new survey, based on interviews of 15,000-odd teens, aged between 13 and 19 years, from 20 cities has revealed that the average age of first sexual contact for boys was 13.72 years and 14.09 years for girls.

In 2014, as many as 644 “communal incidents” took place, including 133 in Uttar Pradesh, 72 in Rajasthan, 97 in Maharashtra, 56 in Madhya Pradesh, 73 in Karnataka, 10 in Jharkhand, 74 in Gujarat, 7 in Delhi, 61 in Bihar and 16 in West Bengal.

This year, between January and October, 650 communal incidents have taken place, with a maximum of 139 reported from UP. Nearly 97 communal incidents were reported from Maharashtra, 86 from Madhya Pradesh, 79 from Karnataka,

24 from Jharkhand, 47 from Gujarat, 59 from Bihar and 24 from West Bengal, this year.

According to the National Crime Records Bureau (NCRB), in 2014, the country witnessed 33,981 murders and 3,332 incidents of culpable homicide not amounting to murder.

The Indian Coast Guard has a fleet of 117 ships while 74 more are under various stages of construction at different shipyards in the country.

Arthritis affects 15 percent people i.e. 18 crore people in India in some form or another. Of these, around one crore people suffer from rheumatoid arthritis.

Men above the age of 45 years are at a greater risk of having low levels of Vitamin D. About 80.63% of Indian urban men exhibit lower than normal levels of Vitamin D. Hindi has emerged as the largest Indian language spoken in the US, with around 6,50,000 people speaking it. Nearly 4,00,000 US residents speak Urdu, and Gujarati is spoken by over 3,70,000 people.

India is set to displace the UK and become the third largest aviation market globally. It’s among the five fastest-increasing markets with 27.5 crore new passengers, as per International Air Transport Association.

—Compiled by Mahesh Trivedi INDIA LEGAL December 31, 2015

79

PEOPLE / Chennai Deluge

DELUGE OF DESPAIR A street filled with debris

LIFE MOVES ON People being evacuated

80

December 31, 2015

FOR WHOM THE BELL TOLLS A woman at a partially submerged temple

DOG’S BEST FRIEND Carrying a pet to safety

WATERY WASTELAND The heaviest rainfall in over a century

SALVAGE OPERATION Household items kept out to dry

COPING WITH DISASTER A flood-affected couple dwarfed by the picture of CM Jayalalithaa

A RIVER RUNS THROUGH IT A flooded road in Chennai

WINGS UNDER SIEGE Paralyzed Chennai airport

— Compiled by Kh Manglembi Devi Photos: UNI

INDIA LEGAL December 31, 2015

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W

1. Plural of enfant terrible.

A: Enfants terrible B: Enfants terribles C: Enfant terribles D: Enfante terrible

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By Mahesh Trivedi

D: Languid 8. Cicerone.

A: Violent storm B: Narcotic drug C: Tourist guide D: A car brand

2. To psych up.

A: To brainwash B: To excite C: To feign D. To memorize

9. Albumen.

A: Egg white B: Carbohydrate C: Herb D: Sleeping pill

3. Basket case.

A: Precious B: Neglected C: Special case D: Useless

10. To play Judas.

A: To be a traitor B: To intervene C: To support lovers D: To impersonate

4. A Rip Van Winkle.

A: Sleeps a lot B: Cheats people C: Is a serial killer D: Toils whole day

11. Stupid person.

A: Romo B: Wazzock C: Vanilla D: Swingbeat

5. To sequester.

A: To collect B: To kill C: To set apart D: To crash 6. Dutch bargain.

A: Unfair deal B: Compromise C: Fair deal D: Written agreement

12. Penurious.

A: Painful B: Miserly C: Dirty D: Wealthy 13. Pull the other one!

A: Get lost!

B: I don’t believe you!

C: Start your work!

D: Think again!

7. Adjective of lip.

A: Lippery B: Labial C: Lascivious

14. To talk Billingsgate.

A: To talk in foul language

B: To flatter and deceive C: Remain silent D: Talk business 15. Verdant.

A: Aristocrat B: Strong C: Green D: Wordy 16. Quod.

A: Sea animal B: Long poem C: Easy chair D: Prison 17. Both oars in the water.

A: Crazy B: Bankrupt C: Mentally normal D: Very rich 18. Lunchtime engineering.

A: Office politics B: Eating together C: Idle talk D: Bribery

ANSWERS

1. Enfants terribles 2. To excite 3. Useless 4. sleeps a lot 5. To set apart 6. Unfair deal 7. Labial 8. Tourist guide 9. Egg white 10. To be a traitor 11. Wazzock 12. Miserly 13. I don’t believe you!

14. Talk in foul language 15. Green 16. Prison 17. Mentally normal 18. Bribery 19. Scuffle 20. In Real Life

Y L D R WO ISE

SCORES 19. Rough and tumble.

A: Mountaineering B: Scuffle C: Bad times D: Hard work 20. IRL. A: In Real Life B: I Received Letter C: I’ll Reply Later D: It’s Real Love

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

82

December 31, 2015

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