Final India Legal 31 January 2015 by India Legal

SECTION 66A License to smother 12 free speech?

NJAC Still on a bumpy ride

FIVE IMPORTANT EVENTS of 2014 that will change our lives 60

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ALIGARH MUSLIM UNIVERSITY

CAMPUS RUMPUS

special report on what women want 18

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PATENT PREDATORS After turmeric, basmati and neem, the West eyes khadi. Can India ward off the threat? 34

COAST GUARD A senior officer, denied promotion, knocks at judiciaryâ&#x20AC;&#x2122;s doors 28

ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

THE CASE FOR TRANSPARENCY HE legal community appears increasingly to support the framing of rules to allow recording of court proceedings. But even though it is not yet clear whether, at the moment, recording is legal or not, the debate is legitimate and valid. Proponents believe court proceedings should be taped, at least in the high courts and Supreme Court to start with. They are in many countries. In England, before taping, they used shorthand. Verbatim records of old proceedings are, I believe, still available. One of the most articulate champions of this cause has been senior lawyer KV Dhananjay, who took up this cause with an evangelical spirit more than four years ago in correspondence addressed to the chief justice of the Delhi High Court. The Indian Express picked up the story and reported: “A young lawyer has provoked a new debate on transparency in the judiciary by sending a letter to Delhi High Court Chief Justice AP Shah, seeking permission to, ‘non-intrusively’ tape-record court proceedings.” One section of the legal fraternity, however, feels that audio recording of court proceedings also carries with it a possibility that information could be manipulated, distorted, or used to embarrass, harass or intimidate parties to court proceedings. But Dhananjay reasoned in the letter that an audio record of court proceedings, especially interaction between the

January 31, 2015

judge and lawyer, would help his client accurately follow the case. “The recording would be done by a tiny device, which, without any displacement, can capture every sound generated in that specific court room. This device can even be worn inside a pocket of a shirt or a trouser. This device makes no sound or noise whatsoever as its mechanism and operation are electronic.” Dhananjay argued that transcription is now an essential part of judicial proceedings in most major democracies. Appellate courts in many jurisdictions routinely remand matters back to the lower court and order retrial in the event the previous trial was not captured in an official transcript or if the official transcript is lost or destroyed. In addition, intermediate and supreme courts customarily see transcripts of proceedings to decide considerable questions of law. Millions of transcripts of judicial proceedings from various parts of the world are posted on the Internet and have fostered immense trust and faith in the integrity of the judicial proceedings that are open for transcription. Further, every judicial proceeding is invariably reconstructed on appeal and the fairness of an appeal is directly determined by the degree of accuracy with which the proceeding below is reconstructed. Quoting from Dhananjay in a supportive blog, a prominent lawyer, Hemant Batra, wrote: “The absence of a transcription greatly burdens an appellate court with assumptions (about the proceeding below) that may greatly vary from the

actual proceeding. A transcript relieves an appellate court of such enormous burden and in doing so, similarly relieves an appellant of burden that is incompatible with the modern era.” Dhananjay also argued that a party to a judicial proceeding has an inherent right to information about such proceeding and the consequent right to preserve such information. This right is not fully honored as long as a party must reconstruct a judicial proceeding by employing his own memory or that of his counsel. Further, given the possibility of a different counsel appearing at different stages of the same judicial proceeding and of different appellate counsel, it becomes absolutely essential that a party’s need for an accurate reconstruction of a judicial proceeding is fully honored. Batra, partner, Kaden Boriss, Legal LLP, India; Vice President, SAARCLAW; and Chairperson, IICLAM, Singapore, makes these telling observations in support of Dhananjay’s arguments: First and foremost, it will improve the discipline and decorum inside the court rooms because everybody will be conscious of the fact that they are being recorded. It will improve the standards of practice; each lawyer would try to justify to his or her client about his or her best efforts. Likewise, it will also improve the justice delivery system; cause the Judges would be under scanner. It will improve the judicial mechanism as a whole because the data of judicial proceedings in any matter would be readily available for scrutiny by the higher court. It will speed up justice because the appellate courts need not hold actual detailed hearings; they can analyze video/audio and if need be, circulate questionnaire to the parties. Globally, we are moving towards digitization and electronic management system; everything should be available in composite data form. It will cut costs, since proceedings could be viewed through video conferencing mode; the litigants need not attend court proceedings, they could have a password oriented long distance video access to the proceedings. It will certainly bring about transparency in judiciary and the legal system as a whole.

Amitava Sen

Batra ends his note on a powerful observation worth recording: “I feel that one should always deal with a problem head on and not by escapism. Hold the bull by its horns because otherwise you will have no option but to be hit by it. The section of lawyers who are opposing the AV recordings are according to me not opposed to the idea of AV but are either scared of the risk of not being able to control the bull or are not confident enough or want to tame the bull first and then solve the issue; let me advise them that one cannot tame the wild bull. We in India are blessed with a proactive and sensitive judiciary who has, by and large, upheld the rule of law and sentiments of the society; I am sure that our judiciary will be open to the idea of AV recording of the judicial proceedings; I have full faith in the custodians of law; let us not lose hope. I wish all the very best to activist lawyers like KV Dhananjay in their initiatives directed towards modernization and transparency.”

editor@indialegalonline.com INDIA LEGAL January 31, 2015

JANUARY 31, 2015

VOLUME. VIII

ISSUE. 10

Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Niti Singh Assistant Editor Somi Das Art Director Anthony Lawrence Senior Visualizer Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar Verma

LEAD

AMU fracas

Following the controversial statement by its VC, MEHA MATHUR and ANIL SHAKYA visited the university to understand its ethos and gender dynamics

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January 31, 2015

ACTS & BILLS

Ringing in the new The National Judicial Appointments Commission that replaces the collegium system might face some formidable hurdles, writes SHAILENDRA SINGH

NATIONAL SECURITY

No lessons learnt The Coast Guard, entrusted with securing maritime borders, finds itself embroiled in a tussle for a top post. A long serving officer knocks at the judiciary’s door to get his due, writes VISHWAS KUMAR

PATENTS & IPR

Khadi wars Western research organizations and corporates tap into the traditional wisdom of India to patent products and remedies. Gandhiji’s favorite garment is their latest target. A report by RAJENDRAN NAIR KARAKULAM

10 28 34

INVESTIGATION

A judge and his daughter

Here’s the World Cup Squad

Much ado about a lost phone. A report by INDIA LEGAL TEAM CASE STUDY

Sanjay Dutt

SPORTS

Is the actor getting privileged treatment in jail or is the opposite true? INDIA LEGAL TEAM analyzes

52 60

The events of 2014 are harbingers of big changes, writes GEORGE FRIEDMAN

When reality turns macabre

A US TV programme showing a patient’s death has raised questions about how far the media can go to provide novelty, writes CHARLES ORNSTEIN

SOCIETY

Partners in the gender fight

Section 66A, our leaders’ favorite muzzling tool ......................................12 A boat from Pakistan that created ripples across the nation.........................…32

Team India goes into the tournament leaving out the stars of the last edition, writes GAURAV KALRA

A new world order

ALSO

Plight of a Gujarat riot survivor ........................46 Shivani Gupta’s struggle to ensure access to the disabled .......................48 A son pens his thoughts about his beloved mother ......................................50 Rajapaksa is routed in Sri Lankan elections..........56

Pranab Mukherjee’s book could have revealed more about the Emergency.......74

REGULARS

From being adversaries, men should be made facilitators in making our cities safe for women, writes ANITA KATYAL

Quote-Unquote ...............… ................................................................8 Ringside ..............................................................................................9 Supreme Court..................................................................................14 Courts................................................................................................16 International briefs.............................................................................80 Wordly-wise .......................................................................................81 People ...............................................................................................82

Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA

INDIA LEGAL January 31, 2015

QUOTE-UNQUOTE

“I stand with Charlie Hebdo, as we all must, to defend the art of satire, which has always been a force for liberty and against tyranny, dishonesty and stupidity.... Religions... deserve criticism, satire, and, yes, our fearless disrespect.” —Author Salman Rushdie on the killings of cartoonists at the Charlie Hebdo’s office in Paris, Twitter

“Even Raju (Hirani) is Hindu, so is Vinod (Chopra) and so is Abhijat (Joshi). In fact 99 per cent of the crew was Hindu. No one would have done such a thing.”

“I am stunned to hear that Delhi Police has filed a case of murder… in the demise of my late wife Sunanda.” —Shashi Tharoor, after an FIR filed on the death of his wife, India Today

“...In 100 marriages involving Hindus and Muslims 50 Savitris become Salmas, why can’t 50 Salmans become Ram?” —VHP leader Pravin Togadia at a convention in Bhopal

“I am Prime Minister’s wife, therefore the information under RTI was not given to me with someone’s intervention.”

—Aamir Khan on right-wing groups seeking a ban on PK because it allegedly made fun of Hindu gods and godmen, The Economic Times

“Jaitley is FM—Frustrated Minister—because he can’t get any bills passed in parliament. Jaitley is FM—Falsehood Minister.” —TMC spokesperson Derek O’Brien refuting FM Arun Jaitley’s allegations that his party was blocking crucial bills in the Rajya Sabha, The Times of India

—Jashodaben, Narendra Modi’s wife, after being denied information related to her protection by the Mehsana district police in Gujarat, The Times of India

“Amit Shah has wrongly been protected and we will challenge the court’s order in the high court.” —Rubabuddin, on special CBI court acquitting the BJP chief in the fake encounter case of his brother Sohrabuddin Sheikh, The Telegraph

“Smugglers don’t commit suicide or hara-kiri. A normal boat, even if carrying drugs would surrender after dumping their drugs”

“I am a little old-fashioned when it comes to love... I believe that in a relationship, a man and woman are never equal...” —Bollywood actor Priyanka Chopra on love and relationships, Hindustan Times

January 31, 2015

—Defense Minister Manohar Parrikar justifying that people on the sunken boat off Porbandar coast were indeed terrorists, The Times of India

Aruna

VERDICT All ambitions are lawful except those which climb upward on the miseries or credulities of mankind.

â&#x20AC;&#x201D; Joseph Conrad

INDIA LEGAL January 31, 2015

ACTS & BILLS/ national judicial appointments commission

Ringing in the new the old collegium system has made way for the national judicial appointments commission bill, 2014. but hurdles remain By Shailendra Singh

HE passage of the National Judicial Appointments Commission (NJAC) Bill, 2014, has been fraught with hiccups and could take some time to see the light of day. The latest salvo came on January 5, 2015, when a petition was filed in the Supreme Court by the executive committee of Supreme Court Advocates on Records Association. It challenged the legality and constitutional validity of the NJAC Act, 2014 and the Constitution (121st Amendment) Bill, 2014. This was barely a week after Pranab Mukherjee accorded his assent to them. The plea was filed by Prof Bhim Singh, senior advo-

January 31, 2015

NO SMOOTH RIDE (From left) Ravi Shankar Prasad had introduced NJAC and 121st Constitutional Amendment bills in parliament last August; the bills have been approved by President Pranab Mukherjee; Prof. Bhim Singh has gone to the apex court with objections to both

Anil Shakya

cate and chief of the Jammu and Kashmir National Panthers Party. It contended that the new system would result in excessive dominance of the executive in appointment of judges to the superior judiciary and the recommendation of the chief justice of India (CJI) would be reduced to mere suggestion. It further said the new process may jeopardize the appointment of judges in higher courts, resulting in further delay of justice to the common people. The NJAC Bill lays down the procedure to be followed for recommending persons for appointment as CJI and other judges of the Supreme Court, and chief justice and other judges of high courts. It was introduced in the Lok Sabha on August 11, 2014, by the then minister of law and justice, Ravi Shankar Prasad, in conjunction with the Constitutional (121st Amendment) Bill, 2014, meant to establish the NJAC. With the president giving his assent, the executive will now get an equal role in the appointment of judges to the highest judiciary. As per the constitution, a constitution amendment bill needs to be ratified by at least 50 per cent of state assemblies and this too was done recently by the legislatures of 15 states. OUT WITH THE OLD With the setting up of NJAC, the two-decadeold collegium system that gave judiciary the sole power for appointing judges to the higher judiciary will end. The NJAC will have the CJI as chairperson and two senior-most judges of the SC as members, apart from the union law

The petition said that under NJAC, the executive will have dominance over judges’ appointment, and the approval of CJI will be reduced to mere suggestion. minister and two eminent personalities, one of whom would be nominated from among the Scheduled Castes, the Scheduled Tribes, minorities, Other Backward Classes or women. Both the 121st Constitutional Amendment Bill and the NJAC Bill have been subjects of litigation in the apex court. Last year, shortly after parliament passed the NJAC Bill, five PILs were filed, seeking to declare the bill as unconstitutional as it violated the basic structure of the constitution by infringing on judicial independence. The Supreme Court observed that such a challenge was “premature” for the court to intervene as the 121st Constitution Amendment Bill was yet to be ratified by the states. The bench further said that the parties could move the apex court on the same ground at an appropriate stage. Despite many of the hurdles being cleared, the NJAC Act may not come into force immediately. As per a government of India gazette, the act shall come into force on a date the central government may, by notification in the official gazette, declare. But for that to happen, the government will first have to select two eminent persons as members of the commission. IL

NEW FRAMEWORK The judiciary will no longer enjoy the sole power of appointing judges to the Supreme Court and high courts once the National Judicial Appointments Commission comes into force

INDIA LEGAL January 31, 2015

ACTS & BILLS/ section 66a

Big A Brother’s Paranoia this section of the information technology law has been misused by state governments to arbitrarily arrest people for posting and commenting online By Shailendra Singh

UNFAIR GAGGING Ambikesh Mahapatra, a Jadavpur University professor, was arrested for circulating a picture spoof of the then TMC chief Mamata Banerjee and railway minister Mukul Roy on social networking sites

January 31, 2015

PIL against Section 66A of the Information and Technology Act in the Supreme Court recently showed the true colors of various political parties. Be it the UPA, under whom this act was hurriedly amended, or the BJP, which promised to reconsider and amend it, all parties seem to be in favor of it. The act has been misused to curb fundamental rights and public dissent by various state governments and police, leading to the arrests of various people. Section 66A prescribes punishment for sending offensive messages through communication devices, etc, and has been highly condemned as it gives unfettered discretion to state agencies to enforce it. There have been numerous instances where individuals have been arrested merely for sending messages or posting online comments on blogs, websites and social networking sites. But the furore that followed has seen the government treading cautiously over this act. It has been urged that the arbitrary use of Article 66A strictly violates the constitutional right to free speech and expression and personal liberty as guaranteed by Article 19 (1)(a), and Article 21 of the constitution. Offences under Section 66A are so loosely defined that almost anything, including causing “annoyance”, can attract penal action. This has led to various groups calling for the scrapping of this section or for it to be worded carefully to reflect similar provisions in the IPC dealing with things like promoting hatred, harassment, intimidation and so on. Last year, while the Supreme Court was hearing a plea by Shreya Singhal, a student, who had petitioned it against the arrest of activist Jaya Vindhyalaya under the IT Act, said that no person would be arrested under Section 66A for posting objectionable comments on social networking websites without prior approval of an officer not below the rank of inspector general of police. In her plea, Shreya had noted that Section 66A was vague and therefore, may lead to unprovoked abuse which would violate the right of speech and equality provided by the constitution. The court’s order restraining the police

CASES WHERE SECTION 66A OF THE IT ACT WAS GROSSLY MISUSED: November 2012: Shaheen Dadha was arrested for questioning on Facebook the shutdown in Mumbai after Shiv Sena leader Bal Thackeray’s death. It was “liked” and shared by a friend, Renu Srinivasan, who was also arrested. The message on Facebook profile was: “People like Thackeray take birth and die daily and people should not observe bandhs.” Both the girls were booked under Section 295(a) of the IPC for hurting religious sentiments, and Section 66A. October 2012: Businessman Ravi Srinivasan was arrested by Puducherry police for allegedly posting “offensive” tweets against Karti Chidambaram, son of union finance minister P Chidambaram. Srinivasan was arrested from his house after being charged under Section 66A based on a complaint filed by Karti. He was later released on bail.

from arresting a person under Section 66A came after it was informed that the central government on January 9, 2013 had issued an advisory to states on the procedure to be followed before police acted on complaints filed under the said provision of the IT Act. Recently, a Supreme Court bench headed by Justice J Chelameswar and Justice SA Bobde said that it was sure that Section 66A did not silence anyone. It further observed that one can always exercise the right to speak without offending people. Law does not silence anyone. But it may ask you not to offend anyone by what you speak. Section 66A is modeled on the same lines as Section 127(1)(a) of United Kingdom’s

May 2012: Two Air India employees, V Jaganatharao and Mayank Sharma, were arrested under Section 66A and imprisoned for 12 days for uploading lascivious and defamatory content on Facebook and Orkut against a local politician and threatening him with death. April 2012: Ambikesh Mahapatra, a professor of chemistry at Jadavpur University, Kolkata, was arrested for circulating a picture spoof of the then Trinamool Congress boss Mamata Banerjee and railway minister Mukul Roy on social networking sites. The charge was that he had sent emails with the spoof, parodying Satyajit Ray’s detective flick, Sonar Kella (The Golden Fortress). Banerjee said: “If one commits an offence, one has to face arrest. Conspiracies won’t be tolerated.” But Mahapatra said: "I am not repentant for my act."

Communication Act, 2003. Both these sections seek to penalize grossly offensive online communication. UK courts, while interpreting the said provision in a case titled, “Director of Public Prosecutions vs Collins”, laid down a set of parameters and said that there can be no yardstick of gross offensiveness other than by the application of reasonably enlightened standards to the particular message sent in its particular context. The test whether it is offensive or not can be done by way of examining whether the message is couched in terms liable to cause gross offence to whom it relates. So governments should watch out before implementing such “draconian” laws. IL

NEEDLESS CLAMPDOWN (From left) Ravi Srinivasan was arrested for tweets against Karti Chidambaram; Shaheen Dadha (left) and Renu Srinivasan (right). Dadha was arrested for a Facebook comment on Thackeray’s death, while her friend Srinivasan was taken into custody for “liking” it

INDIA LEGAL January 31, 2015

SUPREME COURT

Misgivings on transgender rights HE apex court agreed to look into objections raised and modifications sought by the center on its historical judgment on transgenders. It asked the National Legal Services Authority and states to file responses to the issues raised by the government within four weeks. The court had, on April 15, 2014, ruled that transgenders be constitutionally accorded the status of third gender,

treated as OBCs and allotted quotas in educational institutions and public appointments. The court also allowed them to have a family, adopt a child and seek divorce, among other rights. The center wanted certain clarifications and drew the court’s attention to the “political” and “practical” consequences of the verdict. The apex court will take up the matter again on January 22, 2015.

Illustrations: Aruna

From death to imprisonment N yet another case of commutation of death sentence to life imprisonment, the apex court granted the relief to a death-row convict serving imprisonment in the Birsa Munda Central Jail in Ranchi. A three-judge bench concluded that nearly four years taken by the center to decide on his mercy plea amounted to “inordinate delay”. The apex court also pointed out that its guideline was set apart by jailing him in solitary confinement after his death sentence was upheld by the apex court. The court had mandated that solitary confinement is needed only when the mercy petition has been decided upon. This was in gross violation of the rights of the convict, the court ruled.

January 31, 2015

Monitoring selection HE apex court instructed the center not to go ahead with the appointment of a chief vigilance commissioner (CVC) and a vigilance commissioner without its permission. However, it allowed the center to proceed with the selection process and shortlist candidates. The court was hearing a petition by an NGO. The petition had questioned the selection process and wanted a stay on the appointments. It alleged that the center was going ahead with the process without letting out information on the vacancies of the CVC and vigilance commissioners on offer. The court said it wanted to ascertain whether the right procedure had been followed in selecting candidates before the names were forwarded to the president for approval. It wanted the attorney general to submit details of the selection process and names on January 15, 2015.

Watch out, errant judges IFTEEN years after it was adopted, the apex court has published on its website, an “in-house procedure” to deal with complaints against its judges and those of high courts. The trigger for this came from a judgment delivered by Justices JS Khehar and Arun Mishra in December 2014 on a sexual harassment complaint filed by a former additional district judge in Gwalior against a Madhya Pradesh high court judge. A panel of judges framed the procedure on October 31, 1997, and this was adopted with certain amendments on December 15, 1999. The procedure details the steps to be taken by the judiciary in case of receiving a complaint. It further says a “deeper probe” be done if found necessary. It also provides for the setting up of a committee of three judges to conduct the inquiry. One of the clauses says that if the committee finds substance in the allegations against a judge, the chief justice of India should advise him to “resign or seek voluntary retirement”.

For fair justice EOPLE will lose their faith in the judicial system if litigants, hand-in-glove with lawyers, manage to get their cases heard by a judge who is likely to rule favorably, the apex court observed. While condemning the trend called “bench hunting” mostly seen in lower courts, the court said that the trend was found in cases where quick relief was sought, for example bail applications. It set certain guidelines to put a stop to such unethical practices and said that successive bail petitions in a case must be heard by the same judge, unless there are convincing reasons to opt for a different judge. The court was hearing a petition in a cheating case wherein the accused had objected to their anticipatory bail being turned down by the Delhi high Court because it felt they had resorted to bench hunting.

P Mobile charges must be taxed OKIA can’t avail the concessional tax rate for battery chargers on the plea that it is part of the mobile phone instrument, the apex court ruled. It struck down the verdict of the Punjab and Haryana High Court which had put the instrument and the charger as one single product. The apex court stated that the charger should be taxed separately. The case was related to the sale of Nokia cellphones in Punjab, where a VAT of 4 percent is imposed on Nokia mobile instruments, and a 12.5-percent VAT on its chargers. On the premise that a cellphone functions without the charger and the mobile phone battery could be charged through other means as well, the court concluded that the charger is only an accessory of the instrument. It further pointed out that chargers can be sold separately and Nokia has placed the charger as an accessory in all cellphone-related information on its website. It approved the decision of various tax authorities to consider charger as an accessory, to be taxed independently. The authorities also wanted Nokia to pay back the difference of 8.5 percent VAT enjoyed by the company.

No need for cameras IDEO cameras have no place in the apex court, ruled a three-judge bench of the Supreme Court, following the policy of the Supreme Court of the US. While putting down a request from a petitioner that the court agree to video-recording of its proceedings, the bench pointed out that as it is, nothing is hidden from public domain, be in confabulations in the innermost chambers of the court or discussions between judges during collegium meetings. Dismissing the petition, the court concluded that there is no need for installing CCTV in court.

INDIA LEGAL January 31, 2015

COURTS

Gadkari slapped a fine oad Transport and Highways Minister Nitin Gadkari was recently fined `10,000 by a Delhi court for failing to follow its order in filing an affidavit within the time limit. Gadkari had to do so in a criminal defamation case filed by him against former Delhi CM Arvind Kejriwal. As per court’s order, Gadkari was required to file affidavit three days before the hearing in the court on December 20, 2014, and send a copy to Kejriwal’s counsel. Gadkari’s counsel claimed that the copy was sent well in advance on December 18 but Kejriwal’s counsel refuted the claim and said that he received it only on the day of the hearing. The court pointed out that there was no record available with it to prove that Gadkari’s counsel had indeed filed the affidavit. It gave one last chance to Gadkari and fixed March 21, 2015 as the next date of hearing.

Illustrations: Aruna

Plight of pedestrians avements and footpaths are for pedestrians and not for hawkers or people who occupy them by setting up shops or kiosks, the Delhi High Court ruled. Rights of pedestrians can’t be sacrificed for the sake of providing livelihood, it observed. Lambasting NDMC for failing to follow an earlier order that called for cleaning up pavements and footpaths appropriated by hawkers, the court ordered NDMC to do so within a week. It was hearing a petition filed by a lady who wanted the court to ask NDMC to renew her pan stall lease. It was not convinced by NDMC’s response that the process of identifying such occupied sites was already in progress.

January 31, 2015

A case for adulteration esults of toddy samples tested in labs not recognized by the Kerala government can indeed be used for prosecution in cases of adulteration, the Kerala High Court ruled. It turned down a clutch of pleas by toddy shops that such tests were not valid. The petitions cited a Supreme Court verdict that only tests done in state government-approved labs were valid for initiating legal action. The toddy shops were facing cancellation of their licenses after samples picked up by the excise department revealed that starch had been added to toddy. The court concluded that the shops had violated Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002.

Caught napping on acid attacks aking a grim view of the acid attack on a woman in West Delhi in December 2014, the Delhi High Court put the center on notice on the recurrence of such horrific crimes in the capital. It pulled up the center for failing to implement Supreme Court directions on restricting the sale of acid in Delhi, and wanted to know what was being done to check such attacks. Checking whether enough measures had been taken for womenâ&#x20AC;&#x2122;s safety after the Nirbhaya case in December 2012, the court also pointed out that the center must quickly fill around 15,000 posts in Delhi police so that there could be a marked improvement in the law

and order, and prevent crime against women. The center assured the court that proposals for filling up posts in Delhi Police will be taken up at the earliest. Both the center and the Delhi police will have to submit their status reports by January 31. The court warned that forceful measures will be initiated if the center fails to address the issues.

Relief for Somnath Bharti he order of the National Human Rights Commission (NHRC), holding former Delhi Law Minister Somnath Bharti guilty of racial prejudice and unlawful acts against 12 African women in a midnight raid in south Delhi, was turned down by the Delhi High Court. The court asked NHRC to look into the matter all over again, hear Bhartiâ&#x20AC;&#x2122;s version and then pass a detailed verdict. Bharti was directed to follow NHRCâ&#x20AC;&#x2122;s directive and appear before it in January 2015. He had raided his constituency Khirki Extension in January 2014 after complaints of sex and drug trafficking were made by locals. It was alleged that during the raid, the African women were harassed and racially abused. Bharti was also blamed for conducting the raid at an unearthly hour. NHRC had initiated suo motu proceedings against Bharti in September 2014.

Fake conversions onversion just for the sake of marriage is not bonafide, ruled the Allahabad High Court, while refusing to come to the aid of five Hindu girls who had converted to Islam before marriage. The couples from different parts of Uttar Pradesh had approached the court, seeking its help against alleged harassment by their relatives and police. The court observed that there was no evidence to suggest that the girls who had converted to Islam had faith in it. It ruled that such marriages defied the tenets of Quran and went against the Supreme Court verdict on the issue. It also clarified that the girls testified they knew nothing about Islam, nor expressed faith in it, and merely followed the instructions of the boys. Even the boys acceded they had got the girls converted.

Immunity for judges he courts are not liable to reveal records of medical reimbursements made to judges under the RTI Act, as they fall in the realm of personal information and serve no public interest, the Delhi High court ruled. Even Section 8(1)(j) of the act allowed the exemption, it pointed out. The court quashed the order of the Central Information Commission (CIC) that ruled that the Supreme Court registry must compile information about the reimbursements availed by each of its judges in the last three years so that these could be furnished when asked under RTI. The Supreme Court register had challenged the CIC order in the court. An RTI activist, the main respondent in the case, had sought the information.

INDIA LEGAL January 31, 2015

LEAD/

aligarh muslim university / womenâ&#x20AC;&#x2122;s issue

What Women

WANT

this is the issue that many raised after a controversial statement by amu vc. and it seems that many women students here are fine with the limited freedom they get

AN OASIS OR A CLOISTER? Girl students, except a few, are happy to be at Abdullah Hall, with its neat, green environs

January 31, 2015

HE website of Aligarh Muslim University (AMU) proudly flashes photographs of its students demonstrating in support of the vice chancellor, Lt Gen (Retd) Zameer Uddin Shah, who was recently caught in a media furore. These photographs are telling because, unlike other campuses where students agitate over their rights, here, they are expressing confidence in the VC and satisfaction over the way the campus is run. AMU was in the news recently over a media report that undergraduate students of Abdullah Hall, the girls’ college of AMU, were being denied entry to the central Maulana Azad Library of the main campus, and the VC saying in a light vein: “If girls are allowed in the library, four times more boys will flock to the library.” Instantly, from being a problem of seating capacity, it became a gender issue.

REVOLUTION ON WHEELS Girl students of the university driving to their classes

INDIA LEGAL January 31, 2015

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aligarh muslim university / women’s issue

HISTORY AWAITING MODERNITY The majestic biochemistry and chemistry building, which is testimony to the rich tradition of the university

The remark caused nationwide fury, with the Ministry of Human Resource Development (MHRD) coming down heavily on the university authorities, and the Allahabad High Court directing it to open the gates of the library to these undergraduate girls. The university did the needful and changed rules to allow access to them from 8am to 11am every Sunday. Of course, it is a moot question as to how many girls would want to sacrifice their Sunday morning sleep for a library visit. Lt Gen Shah says the limited hours on Sundays are on account of rush in the library on week days. He admits the response so far has been lukewarm but adds: “Things take time to pick up.” Curious to understand the ethos and gender dynamics of AMU first-hand, we visited the campus in midDecember. Aligarh is a two-hour drive from Delhi, made easy by the Yamuna Expressway. As we traverse the labyrinthine gullies of the town where mounds of garbage are piled all over, we wonder how Modi’s Swachh Bharat Abhiyan will succeed in small-town India.

MU is located in the new town and is a clean, green and orderly place. We are greeted by magnificent structures dating back to the late 19th and early 20th centuries. The biochemistry and chemistry block with majestic minarets and arches attracts us in particular, though the insides cry out for renovation. It’s a quiet campus without much hustle and bustle, perhaps on account of exams. Unlike other campuses,

January 31, 2015

CAREER CALLING Like this young medico in the dentistry department, girl students aspire to become doctors, para-medical professionals or engineers

WELCOME TO THE WORLD OF BOOKS A woman employee of Maulana Azad Library, which boasts of a vast collection of books and manuscripts

EDUCATION AS AN EQUALIZER A young woman engrossed in studies, eager to make the best of the opportunity the campus provides

INDIA LEGAL January 31, 2015

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aligarh muslim university / women’s issue

PRIDE IN TRADITION A student, dressed in shervani, which is a common sight on the campus

we can’t see too many boys and girls having discussions or sharing a cup of tea in the open canteen. But we come across a striking sight for a campus with a cloistered atmosphere—smart, burqa-clad girls driving pink scooty. Quite a unique amalgamation of tradition with modernity.

ur being on the campus evokes curiosity. Crowds gather, eyebrows are raised, and a few question the motive of the media being on the campus. This, despite us getting prior written permission from the administration. As we talk to the faculty, a lecturer from the Abdullah Hall says that the issue is not just about access to the library, but about the rules of this girls’ college. Named after Sheikh Abdullah, the college is about three kilometers outside the main AMU campus. The girls’ college is an oasis apart—it is lush green, has playgrounds, a canteen, swimming pool, parlor, and a library, though it is not as well-stocked as the Maulana Azad Library. Classes are just a few minutes’ walk from the hostels. Students are allowed to visit outside the campus every Sunday. Though everything is available there itself, preempting the need to step out, this lecturer finds it problematic.

January 31, 2015

CENTER OF STORM A reading hall in theMaulana Azad Library, where seating capacity is an issue

MOULDING FUTURE Students learning various skills as part of vocational courses offered by AMU

While students of undergraduate courses in social sciences and life sciences have classes here and are therefore confined to this campus—barring the lab work on the main campus in case of science students—those studying professional courses, such as medicine, vocational courses and also theology have classes on the main campus. So, do the girl students feel they are missing out on anything by not being allowed to go to the main campus? These questions are quickly quashed by many. Omar Peerzada, an alumnus and a member of the National Monitoring Committee for Minority Education under MHRD, says: “The restriction on movements is because of the overall state of affairs in our country. The atmosphere of insecurity necessitates that. Also, every educational institute, including Delhi University, has a code of conduct. But this does not mean girls are being denied anything. They swim and play hockey and badminton.” Dr Sheeba Hamid, associate professor of tourism in the department of commerce, wonders: “Why do you feel they are being deprived? The woman’s college is a separate entity and its system is in the process of upgradation and full-fledged modernization.” She adds that girls who pass out of AMU are being given equal opportu-nities in placements and have taken up all kinds of careers. Surprising, a majority of girl students think on the same lines. When asked about more access and

THE GREAT UNIFIER Hostel students enjoying cricket after college hours

INDIA LEGAL January 31, 2015

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aligarh muslim university / women’s issue

“People have entrusted their daughters to me” Lt Gen (Retd) Zameer Uddin Shah, VC, AMU, got into a media maelstrom over not allowing access to women undergraduates to the main library in the campus. He defends his action to MEHA MATHUR, saying he is just providing what the parents expect—a sheltered environment for their daughters. Excerpts:

You are from an army background. What has been your impression of AMU? It is what I expected it to be. It’s a modern, secular university. And let me tell you, military officers do imbibe a lot of education. I am an artillery man—what they call topkhana—but education was constantly a part of the army. I have been training soldiers all my life. It’s really man management and how you manage the resources. An educational institution is no different from an army division. An army division would consist

RARE SIGHT Girl and boy students of a vocational stream chatting in free time

January 31, 2015

of 20,000 troops. Here, I have 28,000 students. The only difference I found was in the passage of orders. In a university you can’t order. You have to convince people. What is the role of the university in girls’ education and what needs to be done further? We are totally for women’s education. But people have to understand that these girls are first-generation university students. They come from conservative Muslim households. And there is a certain decorum that (these) households observe. And that’s why the woman’s college is located three kilometers outside the campus, to keep it a little away. We do accept that modernity has to come. But we cannot be ultra-modern. We cannot adopt the same yardsticks that are followed in metros. People have entrusted their daughters to me to be taken care of and I will protect them. And there has never been a case of molestation or teasing in AMU. Boys and girls know how to behave. We have given girls equal opportunities. And I am proud to say that most of medal winners are girls. In professional courses, the girls are part of the main campus. But it’s the girls of Abdullah hall… …It’s the undergraduates. They are 16 years old and

need extra care and protection. But medical students of the same age are part of the main campus. So why deny access to others? Medical and engineering students are from more progressive families. The ones in arts and sciences are from families which want their girls to be a little more sheltered. So I am just providing what the parents expect—a sheltered environment for their daughters. Your remark was picked up by media. Where did that come from and what was the actual issue? It was a simile. It was like saying it rained cats and dogs but does it rain cats and dogs? No, it doesn’t. It was a remark made in a lighter vein and the girls laughed, mind you. They laughed it off. And forgot about it. The media picked it up to bully me into submission. People wanted to use it as a handle to criticize the university. I apologized and the matter subsided because people could not make more capital out of it. They probably wanted me to run away from here but I will hold on. I have amission to do. And nothing is going todeter me from it. (Read the full interview on our website www.indialegalonline.com)

WITNESS TO HISTORY This old man has been selling fruits on the campus since the age of 10, and saw Pt Nehru arrive in a helicopter to lay the foundation of Maulana Azad Library

freedom, many ask: “Zaroorat kya hai (What is the need)?” Nazrana Mohammadi, doing her PhD in remote sensing, did her graduation from Abdullah Hall and postgraduation from the main campus. She defends the university stand, saying: “I have never felt any restriction and we can do what we want to do.” She says that students from her department have been recruited to ONGC, Geological Survey of India, Coal India, IITs and many research institutes. Kausar, a final-year student of BA Islamic Studies, says that Abdullah Hall, as well as all departments in AMU, have their own library. And all the books of Maulana Azad Library are listed on the online catalogue. In case a student wants a book, all she has to do is requisition it and the demand can be met here itself. Kahkashan Khanam, a research student of theology and a member of the students’ union, says there are two key issues here—that girls should get the books that they want and the seating capacity. “There’s no space in the library. Where will additional students sit?” While all these students seem to acquiesce with the rules, a student of a masters program, who refuses to be named, says that despite all the facilities Abdullah Hall provided, she just wanted to run away from it. “It’s when you move INDIA LEGAL January 31, 2015

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aligarh muslim university / womenâ&#x20AC;&#x2122;s issue

BOULEVARDS OF PAST Strachey Hall, where many a political leaders, including Mahatma Gandhi, addressed students

BUILDING BLOCKS OF FUTURE The entrance of Abdullah Hall, which has been designed using traditional architecture principles

January 31, 2015

MATTERS OF FAITH A lone ranger at the university mosque

to the main campus that you realize what you were missing in terms of freedom and facilities,” she says. She questions the paternalistic attitude of the university authorities who seem to take on the role of guarding the “daughters” in collusion with their parents in a case of joint guardianship (read box).

ressed in jeans and a loose, long pullover, she says it takes guts to dress up like this in AMU. For example, she overheard a boy in her class saying: “Jab main kisi ladki ko jeans mein dekhta hoon toh mann karta hai ki bas… (when I spot a girl in jeans I just feel like…)” And once, when she filed a harassment complaint, the authorities were supportive, but the girl students in her class asked her: “Kyon ghoomti hai itna katto ban ke (Why do you roam around dressed up like this)?” The unsaid dress code means that those who do not adhere to it are singled out for criticism and discomforting looks. This writer experienced it herself while visiting the historic Strachey Hall of the university. The emphasis on dress code became clear when, on March 8, 2014 (Women’s Day), students organized a huge exhibition, and, using

models, demonstrated how a woman should dress up. The faculty member we spoke to earlier said this was not so when she was a student. Those who donned the hijab and burqa were the odd ones out. However, Mustafa Zaidi, associate professor, Library and Information Sciences, puts the issue of access within the larger socio-cultural context. “You need to understand the peculiar conditions of the Indian Muslim community, which necessitates segregation. The other alternative is that if we open up, there will be no girls’ education at all. There’s a lot of debate going on about what level of education girls should have.” He adds: “Modernity is creeping in slowly. Only, don’t talk about it, or else, they will backtrack. The scooty has, indeed, liberated many girls. But if you conduct a survey and ask parents whether they will allow their girls to drive a scooty, they will reply: ‘Of course not’. Decisions are being taken at home at the insistence of girls. A silent change is happening.” How the university facilitates this change and empowers girl students will also determine the future of the Muslim community and the country as a whole. And therein lies their power and authority. IL

ANIL SHAKYA is a staff photographer at India Legal. He earlier worked with The Statesman, among other publications. As a photo journalist, he brings to the table a fresh perspective to photographs.

INDIA LEGAL January 31, 2015

NATIONAL SECURITY/ coast guard

IN CHOPPY

WATERS there is much that is murky in the top echelons of the indian coast guard, which is meant to guard india’s vast coastline. the scuttling of kps raghuvanshi’s appointment as inspector general has forced him to knock at judiciary’s doors By Vishwas Kumar

January 31, 2015

he 26/11 attack in 2008 exposed holes in India’s coastal security. Ten heavily armed terrorists from Karachi reached Mumbai through the sea-route, killed 166 and hurt 300, as they attacked various sites in India’s financial hub. After the initial shock, the government moved fast and kicked in a process to enhance counter-terrorism measures, with an additional focus on coastal security. This allowed security agencies to recruit, promote and procure more men and materials. BLATANT FAVORITISM However, a recent incidence of manipulation in appointments in the Indian Coast Guard has shown that few lessons have been learnt by senior officers for enhancing security and making sure that it is in the hands of capable people. So blatant has this favoritism become that the Delhi High Court had to pass strictures against top Coast Guard officials. It all began when Deputy Inspector General (DIG) KPS Raghuvanshi of the Indian Coast Guard approached the High Court because his appointment as IG was scuttled by Anil Chopra, the then director-general of the Coast Guard, who wanted to promote another official, KC Pande. Chopra later became vice-admiral of the Indian Navy, while Pande is presently posted as Deputy Director General (DDG), human resources department in the Coast Guard. Raghuvanshi’s credentials were excellent. An alumnus of the prestigious Naval War College (the US), he was the first UNI

STILL AT SEA? (Above) Terrorists who struck Mumbai had arrived via sea route and the Coast Guard had been unable to detect any suspicious movement then (Right) A Coast Guard vessel guarding the Indian waters

INDIA LEGAL January 31, 2015

NATIONAL SECURITY/ coast guard

WHEN WORK GOES UNREWARDED DIG KPS Raghuvanshi (left), who was denied the IG post despite his credentials

While these senior posts were created for more effective administration of India’s vast coastline of over 7,500 km, few realized it would be embroiled in unseemly controversy.

The manipulation to deny Raghuvanshi his promotion allegedly involved collusion between Admiral Chopra and Binoy Kumar, then joint secretary in the Ministry of Defense. person from his batch to be selected for the Indian Coast Guard. He joined it as assistant commandant in January 1984. In May, 2006, he stood first among DIGs and was shortlisted for National Command College, South Korea. He was awarded the Tatrakshak Medal by the President of India on August 15, 2007, for meritorious service. In September 2008, he came first in a National Defense College course in New Delhi. Raghuvanshi’s lawyers, BP Singh and Parma Nand, allege that the manipulation to deny him promotion involved collusion between Admiral Chopra and Binoy Kumar, then joint secretary in the Ministry of Defense (MoD). The new vacancy occurred in the organization due to the creation of fresh posts in the aftermath of 26/11 attacks.

January 31, 2015

VIOLATION OF RULES The flouting of rules was brought up before a double bench of the Delhi High Court comprising of Justices Reva Khetrapal and Pratibha Rani. In their judgment, they said the department arbitrarily changed rules to deny Raghuvanshi’s promotion. First, Admiral Chopra downgraded his Annual Confidential Report (ACR) and secondly, Kumar “clandestinely” granted “post-facto” approval of new promotion rules to favor Pande, in violation of rule books. The judges expressed their dismay that two high-ranking officials belonging to the IAS and the Indian Navy had played with the career of a bright official against the written advice of the then defense secretary. The judgment said: “Indubitably, the proposal for amendment of CGO (Coast Guard Office rules) 02/2005 was originally rejected at the level of Defense Secretary, i.e., on 16.04.2009. Indubitably also, the MoD had then directed the CGHQ (Coast Guard Head Quarter) to follow the CGO 02/2005 and conduct the DPC (Departmental Promotion Committee) expeditiously. Since the said proposal was originally rejected at the level of Defense Secretary, the ‘post facto’ approval granted by the Joint Secretary (Navy)/MoD on 19th June, 2009, was without any authority and an attempt to ride rough-shod over the orders passed by the Defense Secretary.”

Questioning the power of Admiral Chopra to review Raghuvanshi’s ACR, the judgment held: “The stand of the Respondents that a request was made to the Ministry of Defense on 13.04.2009 requesting for grant of dispensation to Vice Admiral Chopra, i.e., Respondent No. 2, to review ACRs of the officers who he had not observed for three months and that the MOD vide its letter dated 23.04.2009 acceded to the request and directed the Department that review of ACRs … is again bereft of merit and contrary to the record. “The record shows that though such dispensation was sought by the CGHQ on 13th April, 2009, it was categorically refused by the MoD vide its communication dated 23rd April, 2009, and the directions issued by the Ministry of Defense in this regard were that:‘Review of ACRs by the officer who has not observed the CG Officers for three months may be completed as per provisions of CGO 04/2005.’ (MoD ID No. 472/D (CG-R)/09 dated 23rd April, 2009).” SPOILING ACR Coming down heavily on the manipulation of merits, the judgment held: “… we find that the Petitioner (Raghuvanshi) has succeeded in establishing his case of selective change of ACR criteria to manipulate merit by the Respondents smacking of arbitrariness. The Petitioner has also succeeded in establishing that the review of his ACR for the period 2008-09 by Respondent No. 2, then Director-general in violation of para 54 of CGO 04/2005 was to his detriment, resulting in his being punished twice over for the same

PIB

incident (a minor accident)…. ” The judges directed the respondents, MOD/ Coast Guard, to hold a fresh DPC within a six weeks time (judgment was delivered on September 4, 2014) to rectify their omission and commission. But the respondents tried to once again stall the high court’s directive by filing a review petition that was dismissed on December 19, 2014. While the Coast Guard indulged in senseless litigations using the public exchequer, Raghuvanshi had to bear the cost of hiring lawyers and travel to and fro. Is this the way to treat an upright officer? Sadly, he is one among several others in the defense services who suffered manipulation in their promotions, leaving them bitter. How then can he, and many others like him, concentrate on securing the country’s borders? IL

ARMS AND THE MEN Tampering with the appointments and promotions in agencies entrusted with the country’s security would demoralize the forces and prove counterproductive

INDIA LEGAL January 31, 2015

NATIONAL SECURITY/ averted terror strike

THE MYSTERY CONTINUES As the boat sunk without a trace, security agencies are left with only telephone intercepts and pictures of it prior to it catching fire

Boat from Pakistan

UNI

while the coast guard intercepted a boat from pakistan, its identity is yet to be established by security agencies By Vishwas Kumar

he interception of a Pakistani “terror boat” by the Indian Coast Guard 365 km from Porbandar on the night of December 31 has raised alarm bells among security agencies due to a combination of internal and external factors. It happened at a time of heightened tension within Pakistan in the aftermath of Taliban’s brutal killing of school children in Peshawar, frequent clashes between India and Pakistan along the LoC and growing schisms in India over the rise of Hindutva forces. HIGH ALERT A security analyst claimed that terrorist networks from across the border could be

January 31, 2015

planning to attack some high-profile events such as the Pravasi Bharatiya Divas (January 7-9 in Gujarat), Vibrant Gujarat Global Investors Summit (January 5-14) and US President Barack Obama’s visit for Republic Day celebrations in January end. According to sources in the Ministry of Defense (MoD), the Coast Guard swung into action upon receiving intelligence inputs from the National Technical Research Organization (NTRO), the technical surveillance arm of the Research and Analysis Wing (RAW). MOD’s statement on January 2 said that as per intelligence inputs received on December 31, a fishing boat from Keti Bunder near Karachi was planning some “illicit transaction” in the Arabian Sea. Based on the input, the Coast

PAKISTAN

Clinical operation

Karachi

A fishing boat sailing from Keti Bunder, near Karachi, was spotted by the Indian coast guard on the intervening night of December 31, 2014, in the Arabian Sea, around 365 kilometres off the Porbandar coast.

Keti Bunder

INDIA Porbandar

The Coast Guard chased the boat and stopped it after firing warning shots. The four persons seen on board hid and set the boat on fire.

365 km Graphics: Lalit Khitoliya

Guard intercepted an unlit boat and gave it chase for nearly an hour. Finally, it was stopped after warning shots were fired. Four persons could be seen on the boat. Soon after, they hid themselves and set the boat on fire, resulting in an explosion. Due to darkness, bad weather and strong winds, neither the remains of the boat or the persons could be recovered. The Coast Guard and other security agencies have been maintaining high vigil for the last couple of months due to several inputs of a threat from the sea, it added. Intelligence agencies are trying to establish the identity of the boat, those in it, its mission and cargo. As the boat and its occupants have sunk without a trace, the agencies are left with only telephone intercepts and pictures of it prior to it catching fire. They are also coordinating with friendly countries to tie up the loose ends to get a fuller picture of the terror mission. HISTORY REPEATS ITSELF One cannot forget that six years back on November 26, LeT members had similarly used fishing boats to sneak into India and launch an attack on Mumbai that killed 164 and injured 300. Pakistan initially denied

The BJP leaders, in a congratulatory tone, taunted the Congress about how under the leadership of a weak Manmohan Singh it could not stop the 2008 Mumbai attack. these terrorists were their nationals, but this was later proved wrong. Meanwhile, a political slug-fest has started between the BJP and the Congress over this incident. The BJP leaders congratulated intelligence, security agencies and the government over the counter-terror measures, taunting the Congress about how under the leadership of a “weak” Manmohan Singh it could not stop the 2008 Mumbai attack. The Congress countered it by raising questions over the “authenticity” of this incident. Defense Minister Manohar Parrikar said: “There are speculations but I don’t intend to be part of speculations except saying one very important aspect—that the location (where the boat was found) is not a normal route for fishing boats.” Hopefully, security agencies will be able to tie up the loose ends soon. IL INDIA LEGAL January 31, 2015

CONTROVERSY/ patents and ipr

The battle over

KHADI

after basmati rice, turmeric and neem, it is the turn of khadi to face “bio-piracy”. this time, a german company has registered it as a trademark in the eu. india, once again, has to gird itself up By Rajendran Nair Karakulam

January 31, 2015

NOTHER case of Intellectual Property Rights (IPR) infringement has surfaced. This time, it is khadi, a product synonymous with Mahatma Gandhi’s non-cooperation movement. In a shocking development, a German company named Khadi Naturprodukte, which sells products such as shampoos, soaps and oils made from natural ingredients, has registered “Khadi” as a trademark in the Office of Harmonization of Internal Markets, which is responsible for trademark and design registration in the European Union. This development is surprising at a time when the khadi movement is sought to be revived by Prime Minister Narendra Modi so that the poor, who are dependent on this cottage industry, can benefit. In his first radio address, Mann ki Baat, Modi initiated a

PIB

To win the case, India will have to prove that KVIC’s products have been selling in the European market for a longer time than the German products.

campaign to encourage the purchase and promotion of khadi. One month later, on the same radio show, he said that khadi sales had increased by a staggering 125 percent. LEGAL PROTECTION Meanwhile, Khadi and Village Industries Commission (KVIC) has also been urged to create and market Brand Khadi to attract buyers, especially among the youth. The first step in this direction would be the registration of this brand as an international trademark. BH Anil Kumar, joint secretary in the Ministry of Micro, Small and Medium Enterprises (MSME), says: “A trademark would be a proof of authenticity and provide legal protection too.”

But this may not be as simple as it sounds. For a brand to be registered as an international trademark under the World Intellectual Property Organization’s Madrid Protocol, it is necessary that it is not registered elsewhere. But with the Germans beating India to it, there is a question mark over this Indian product. The most striking feature of the IPR infringement is that the German products are similar to KVIC’s, except for fabrics. They are even packaged and marketed in an identical design. Though the German company is not selling fabrics, it has expressed its intention to add more products to its online shop. But KVIC is not going to take this lying down, as it has sought cancellation of the trademark held by the German company. This is not the first time that India’s traditional knowledge or an indigenous brand has been commercially exploited and appropriated using intellectual property systems. It has been a victim of bio-piracy before and has successfully claimed its IPR at various international fora.

THE JOURNEY TO RAMP From being associated with the Independence Movement, khadi has become a fashionable wear, accepted in the global market

TOUGH FIGHT In the year 2005, the patent granted to a US company for methods of controlling fungal infections in plants using a composition that included extracts from the neem tree, was INDIA LEGAL January 31, 2015

CONTROVERSY/ patents and ipr

Patent predators, beware! India has won the patents battle for the following items:

NEEM, 2005 After a decade-long fight, India won a battle at the European Patent Office (EPO) against a patent granted on an anti-fungal product derived from neem. The patent was granted to the US Department of Agriculture and multinational WR Grace in 1995. India proved that neem was part of the traditional knowledge of Indian farmers and the scientific community for centuries. Vandana Shiva of the Research Foundation for Science, Technology and Ecology was then quoted as saying that this was a major victory for India as the US company had tried to enlarge the scope to include all neem-end products. Incidentally, neem derivatives have been used traditionally to make insect repellents, soaps, cosmetics, tooth cleansers, contraceptives, etc.

“PONNI” RICE, 2010 In 2010, a Malaysian High Court ruled that a local firm, Faiza Sdn Bhd, should not use the label “Ponni” for its rice products. This was based on an application by the Indian Agricultural and Processed Food Products Export Development Authority (APEDA) and four others. The judgment said “Ponni” rice was produced along the Cauvery river in Tamil Nadu and Karnataka and Faiza did not have the right to register it as its own trademark.

successfully opposed, on the basis that the method protected by the patent had long been known in Indian traditional medicine. Earlier, in 2001, a patent application on certain hybrids of basmati rice in the US was invalidated on the intervention of the Indian government. While the protection granted to the German company is subject to cancellation, it may prove to be difficult unlike patent cases, where it is sufficient to show that the methods protected were part of traditional knowledge of India. Prof Shamnad Basheer, an expert on IPR laws, believes that India will have to prove that KVIC’s products have been selling in the European market for a longer time than the German products and that the consumers associate the brand with KVIC. While India has entered an international legal battle to protect its traditional and cultural identity, all is not well within the country. The 37 trademarks, including “Khadi”, “Khadi Garmodyog” and “Khadi Bharat”, held by KVIC in India, have not been

January 31, 2015

TURMERIC POWDER, 1997 Six attempts by the University of Mississippi Medical Centre in 1995 to use of turmeric powder as a healing agent were rejected by the US Patent and Trademark Office after India challenged it, saying the technique was not new. The Council of Scientific and Industrial Research had, on October 28, 1996, challenged attempts by the US university to get the patent. Its director-general, RA Mashelkar, had said that this success had sent out strong signals that if patent cases were fought with well-supported techno-legal methods, traditional knowledge could be protected.

BASMATI RICE, 2001 India won a case against US rice firm, Rice Tec, which secured US patent on basmati rice lines and grain in 1997. APEDA had objected to it, as both India and Pakistan are known producers of basmati rice. The United States Patent and Trademark Offices finally ceded to APEDA’s views and restricted the patent to three rice strains.

renewed within the prescribed time limit and therefore, do not exist at present. Also, eight other entities continue to have the registration in their names, of which seven are held by private individuals and one is registered under the name of Rajasthan Khadi and Village Industries Board.

The most striking feature of the present IPR infringement is that the German products are similar to the ones KVIC deals with, except for fabrics.

RENEW TRADEMARKS With the re-emergence of a khadi trend in India, it is essential for KVIC to ensure that its existing trademarks in India are renewed and that “Khadi” is registered as an international trademark. Otherwise, traders within the country and abroad would appropriate it. Sadly, there seems to be a lack of urgency in dealing with matters relating to intellectual property. The government must start protecting brands and traditional knowledge unique to India so that it isn’t exploited commercially by international companies. In a major initiative, India’s Traditional Knowledge Digital Library, a database containing 34 million pages of formatted infor-

mation on certain medicinal formulations from across the country, has succeeded in bringing about cancellation or withdrawal of 36 applications in Europe alone. In times of globalization and the World Trade Organization, international instruments such as the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement are legitimizing bio-piracy and internationalizing indigenous ideas, marks, brands and designs. India, along with other developing countries, is fighting for an amendment of such rules which go against their interests. The sooner it girds itself, the more are the chances that our cultural heritage will be protected. IL

INDIA’S PRIDE (Facing page) Khadi yarn being woven into fabric in a handloom unit

INDIA LEGAL January 31, 2015

INVESTIGATION/ lost mobile

Is this protocol, MY LORD?

WORRIED JUDGE The case involved the daughter of chief justice of Andhra Pradesh and Telangana High Court. She had lost her cellphone while on an excursion in North Bengal (Facing page) A copy of the fax

there was much ado about a lost mobile in west bengal. not surprising, considering it belonged to the daughter of a judge By India Legal Team 38

January 31, 2015

UDGES have a lot of power vested in their office and their pronouncements and desires cannot be ignored, especially when it comes to their family members. And even if it is a mere matter of a lost mobile phone. On January 8, 2015, the district and sessions judge of Darjeeling and Jalpaiguri and

The fax brought to the notice of authorities that Debjani had lost her mobile in Jaldapara forest and thus they were asked to keep in touch with her through the mobile numbers of two of her friends. the district magistrate and superintendent of police of Darjeeling, Jalpaiguri and Alipurduar received a fax from S Chanda, joint registrar (protocol) of Calcutta High Court regarding the lost mobile of Debjani Sengupta, the daughter of Justice Kalyan Jyoti Sengupta, chief justice of Andhra Pradesh and Telangana High Court. This fax mentioned an earlier fax on January 6, 2015, regarding Debjani’s visit to Jaldapara and Kalimpong on a college excursion along with 34 students and teachers. The present fax brought to the notice of these three authorities that Debjani had lost her mobile in Jaldapara forest and therefore, they were asked to keep in touch with her through the mobile numbers of two of her friends: Alizabeth (number given) and Anjali (number given). They were further told to communicate these numbers to the local police stations so that they could contact her as and when required. Further, they were directed to tell concerned authorities to search for Debjani’s mobile at the earliest and to treat this matter as urgent. And in what is a clinching audio evidence for India Legal, Chanda spoke to its editorin-chief, Inderjit Bhadwar, and admitted that the police was, indeed, looking for Debjani’s mobile. Chanda said: “We have already informed through a fax message, the superintendent of police and local police station…we have guided the girls….We have already sent the EMI number, they are searching…we are blocking the mobile set….” When Bhadwar

asked him: “Who is taking care of the girls?”, Chanda replied: “Local police station.” Asked if they were under “proper VIP security”, the joint registrar replied: “Yes, proper VIP security, no problem.” While it is common for citizens to file FIRs on losing mobiles, what has raised eyebrows in this case is that instructions were passed to three senior government officials to get involved in this issue because the person concerned was a judge’s daughter. But who can ignore diktats of this sort? IL INDIA LEGAL January 31, 2015

CASE STUDY/ furlough/sanjay dutt

THE FAVORITE WHIPPING BOY?

the actorâ&#x20AC;&#x2122;s furlough was recently rejected by yerwada jail authorities. this, despite it being for valid health reasons. is he more sinned against than sinning? By India Legal Team

CTOR Sanjay Dutt got his present furlough rejected, but there is a general feeling that he has been singled out for favorable treatment while passing his term in Yerwada Jail in Pune. Questions have been raised in the public space about him getting frequent furloughs in the past and why he is not being treated like a normal prisoner. However, not many know that furlough is a privilege given by the Indian judicial system to all prisoners and Dutt is no exception. He has to follow jail rules to avail of it, just like any other prisoner. He can apply for furlough for 14 days and after that, request for an extension of another 14 days. In Maharashtra, numerous prisoners get furlough daily. But according to prison rules, they cannot get it for more than 28 days in a year. Furloughs were instituted to ensure the UNI

January 31, 2015

UNI

prisoner does not lose touch with society and attends to important social obligations. These are also granted for health considerations. Usually, furloughs are granted for 14 days and extensions can be given if there are valid reasons. On December 24, 2014, Dutt was released on a 14-day leave of furlough by Yerwada Jail authorities. Before that, he was granted leave in October 2013 for 28 days on health grounds. In December 2013, he was again allowed to go on leave to tend to his sick wife. This led to a public perception that he was singled out for preferential treatment. It is for the jail authorities to use their discretion to turn down furlough applications made by convicts who have been sentenced for rape, dacoity or offences under the Narcotic Drugs and Psychotropic Substances. Jail authorities also look at the prisoner’s behavior in jail before okaying the furlough. COMMON PRIVILEGE Besides Dutt, as many as 34 prisoners in Yerwada Jail had got furloughs at the same time in December 2014. Dutt had requested for an extension to get some affected nerves on his leg treated. The Mumbai Police

In Maharashtra, numerous prisoners get furlough daily. But according to prison rules, they cannot get it for more than 28 days in a year. cleared it, saying that on health grounds he could be given an extension of 14 days. The Mumbai Police received an email application asking for an extension and a mandatory “No Objection Certificate” was emailed to Yerwada Jail authorities on the same day, ie, January 9, 2015. In fact, his angiography was scheduled for the afternoon of January 10, 2015, but had to be abandoned due to his furlough being rejected. RT Dhamne, Deputy Inspector General of Prisons, Pune, chose not to grant the furlough despite it being okayed by the Mumbai Police and the fact that it was for a valid medical reason. When India Legal called Dhamne to ask why he hadn’t granted a furlough this time when he had granted it earlier on similar grounds, he could not give a valid reason. When probed further, he cut the call. Incidentally, Dutt will finish his five-year jail term in August this year. IL

BENEFIT OF DOUBT? (Facing page below) Sanjay Dutt with wife Manyata and twins, Shahraan and Iqra (Above left) Dutt promoting PK along with Aamir Khan and Raj Kumar Hirani during his latest furlough. He played the role of Aamir's friend, Bhairo Singh, in the film

INDIA LEGAL January 31, 2015

SOCIETY/ gender sensitization

Bridging the GENDER GAP

men are no longer seen as adversaries in achieving gender justice. they are seen as part of the solution. the battle against patriarchy wonâ&#x20AC;&#x2122;t succeed if women do not talk to men By Anita Katyal

UNI

January 31, 2015

In Maharashtra, Jharkhand, UP and MP, a special program is on in 1,500 villages to find out why men oppress women; urging them not to abuse their power. UNI

HEN hardened autorickshaw driver on the killer roads of Delhi, Chandrakant Pande, attended a gender sensitization class, he was initially skeptical But he came back a wiser man. “I have now realized the problems faced by women in Delhi.... my attitude towards them has changed. I understand the importance of respecting women,” he said. This remarkable change of attitude was an achievement of Delhi Transport Department and a local NGO, Manas Foundation, which joined hands to conduct classes on gender sensitization for Delhi’s 40,000 autorickshaw drivers. It is part of a quiet but perceptible shift in the focus of women’s movements across the globe over the past two decades. Bra-burning, militant feminism and male-bashing are no longer the order of the day. The conversation is no longer about “Them Vs Us” or “He Vs She”. It is moving towards how men and women can work as partners to achieve gender justice. Men are now seen as part of the solution, not the problem. There is growing recognition that it is imperative to involve men for gender equality since they continue to wield power and decide what is right for women.

The call for a partnership between both sexes was first articulated at the 1994 Cairo Conference on Population and Development in the context of reproductive rights. It was broadened the following year to include sharing responsibility at home and workplace.

A SHIFT IN FOCUS (Facing page) It is now imperative not to fight men but consider them as partners for ensuring gender equality

LET’S JOIN HANDS Gertrude Mongella, secretary-general of the Beijing World Conference on Women, had then famously declared that it is “now the turn of men to join women in their struggle for equality”. This was eventually included in the platform for action subsequently endorsed at the conference. Predictably, this radical shift was not easy to come by. Bandana Rana, president of Saathi, a Nepal-based NGO, who was at the Beijing conference, recalled how uncertain activists were about changing tack after waging a long and arduous battle against gender discrimination. She spoke to India Legal on a recent visit to Delhi for the 2nd MenEngage Global Symposium, organized by MenEngage Alliance and the Delhi-based Centre for Health and Social Justice. “I was a young activist when the Beijing conference was held. There were many discussions about involving men and boys in women’s battle for gender justice. There were serious apprehensions among women that by doing so, they

(Above) Members of various organizations at a recent protest rally against the sexual harassment of a 6-year-old school girl in Bangalore

INDIA LEGAL January 31, 2015

SOCIETY/ gender sensitization

OF MEN & MATTERS The ICRW-UNFPA study on “Masculinity, Intimate Partner Violence and Son Preference in India” was conducted in seven states—Uttar Pradesh, Madhya Pradesh, Rajasthan, Maharashtra, Odisha, Punjab and Haryana. Some key findings: One in three surveyed didn’t allow their wives to wear clothes of their choice. Sixty percent men believed they had a greater say than their wife or partner in the important decisions that affect them. Seventy five percent men expected their partners to agree to sex. Over 50 percent men didn’t expect their partners to use contraceptives without their permission. Sixty percent admitted to using violence to assert their dominance over their partner. Preference for sons is still prevalent across states.

January 31, 2015

will end up squandering the gains they have made so far and surrender the space they fought for all these years,” she said. It culminated in a grudging acknowledgement that the battle against patriarchy would not succeed if women did not talk to men. “The gender equality agenda has been led by the women’s movement for decades. But this is not a one-sided task. We see the engagement of men and boys—the other half of humanity—as a game-changer in shifting power relations to achieve gender equality,” remarked Phumzile Mlambo-Ngcuka, executive director of UN Women. LACK OF FUNDING However, there are some niggling doubts, the biggest of which is funding. There is a growing fear, articulated by several speakers at the MenEngage Global Symposium, that there would be a cut in the funds for programs on women’s empowerment and gender violence as money would be diverted to work on engaging men. “We see a clear crisis, as women’s organizations working at the grassroots are chasing donors and smaller women’s groups are closing down. Where is the sustained funding for women’s groups so that these issues do not get left out? For instance, illegal abortions continue to take place but there is no money for this work,” bemoaned Tulika Srivastava of South Asia Women’s Fund. There is also debate about the terms of engagement with men so that age-old gender stereotypes are not reinforced. The situation is particularly worrisome in the present Indian context when right-wing fundamentalist groups (as witnessed in the love jehad campaign in Uttar Pradesh) are whipping up passions to underline that a real man is the one who stands up to fight for his religion, community and women. As a result, a woman’s sexual autonomy is becoming limited. Then, there are traditional institutions like khap panchayats openly sanctioning punitive action against women who exercise their right to choice in marriage. Worse, principals of some educational institutions in cities are prescribing a dress code for women and even restricting their mobility. Kamla Bhasin of the Delhi-based

women’s organization, Jagori, expressed her concern that the outreach to men will end up projecting them as protectors of women’s honor, instead of becoming their allies. This could be all the more evident in cases when the man is an authoritative figure and the woman is compliant. SKEWED ADS Actor-activist Rahul Bose agreed, and referred to advertisements which show how men have to protect women. “This got me thinking. Though it is important to engage men and boys in gender justice, you have to engage them in the right way. It is not about protecting women, but about understanding that they will take their own decisions,” he said. But he also added that men have to learn to cede control. “They have to learn to let go,” he added. Nonetheless, working with men and boys has made some progress over the past two decades. At the international level, a global “Network of Men Leaders” was set up in 2009 as part of the “UNiTE to End Violence against Women” campaign. Meanwhile, UN Women launched a “He for She” campaign to create a critical mass of men who believe in gender justice. Many countries, including India, have launched several programs for adolescent boys and fathers, while women’s organizations have started working with men on these issues and protection of child rights and child care.

EARLY BIRDS (From extreme left) Bandana Rana, the president of Saathi, an NGO, was at the Beijing Conference on Women in 1995 that also recognized men’s contribution to gender equality; Gertrude Mongella, Secretary-General of the conference; Actor-activist Rahul Bose feels that men have to cede control

In Uttar Pradesh, Madhya Pradesh, Maharashtra and Jharkhand, a special program is going on in 1,500 villages to understand why men oppress women and to urge them not to abuse their power. Rana said their organization had decided to reach out to men through popular football clubs in Nepal. “It was not easy to persuade them to listen to us on an issue like gender violence but we tried….We told them that so far they had been idolized on the field, but if they changed their attitude towards women, they would also be idolized off the field too,” she explained. The efforts paid off, as many boys told them that women had started looking at them in a positive light once their attitude towards them changed. FORMATIVE YEARS But men were obviously ill-prepared to accept fast-paced changes women had undergone. Ravi Verma of the International Center on Research on Women (ICRW) pointed out: “Most men agree that women should be treated equally at the workplace and at home and that women should not be subjected to violence, but they do not translate this in their personal lives.” Verma should know; his organization had collaborated with the UN Population Fund on a study, “Masculinity, Intimate Partner Violence and Son Preference in India”. He maintained that these stereotypes could

“Though it is important to engage men and boys in gender justice, you have to engage them in the right way. It is not about protecting women, but understanding that they will take their own decisions.” —Rahul Bose, actor-activist easily be addressed during the formative years of kids by transforming schools and revising textbooks so that they show boys and girls as equal partners. One of the fixed views of men was that childcare and household chores are the woman’s domain. Preeti Sudan, additional secretary, women and child ministry, revealed that though India has a provision for 15 days of paternity leave, few men actually avail of it. “The socialization is such that men believe it is the woman’s job to care for the child,” she said. Lakshmi Puri, assistant secretary-general of UN Women, disclosed that when she spoke about the concept of shared work, a UN delegate’s immediate response was along predicted lines: “So now we will have to ask our breadwinners to stay at home.” Changing male attitudes ingrained from childhood will not be easy. It is difficult for men to acknowledge that they can be a part of what women had started. IL INDIA LEGAL January 31, 2015

HUMAN INTEREST/ juhapura/ahmedabad

No home T to call my own little has changed for many victims of the 2002 gujarat riots as their wounds continue to fester By Fayeza Pathan 46

January 31, 2015

HE clock has struck 1 pm. And I have set out for Anjum Colony in the center of a Muslim ghetto in Juhapura in Ahmedabad. It’s one of the few colonies where victims of the 2002 Gujarat riots have been resettled. Anjum means star, but that’s probably the only brightness in the lives of those who have lost everything in those riots. It doesn’t take much time for me to find this resettlement colony as I was also brought up there. The heat outside is strong, the sunlight, blinding. But in the bylanes of this colony, the light is dim. Motorcycles are parked on both sides of the street, making me squeeze myself in order to reach the stairway of a house. As I reach the first floor, I see dingy rooms in pink, blue and green. I sit on a charpai and catch a glimpse of a wrinkled 60-year-old woman offering namaz. Meet Niyaz Khala, one of the residents of Anjum Colony. After her prayers, she calls me inside her home, a small room with a kitchen and bathroom. She stares at me as if waiting for reassurance of my identity as a Muslim. I empathize with her as I understand the discrimination my people face in the name of religion. For her, it has been doubly hard. She used to live in Ognaj village, some 12 kilometers from Ahmedabad. Her husband is a quiet and reticent man and belonged to a family of wealthy farmers. They had a home which was 1,800 square feet. It was an opulent life compared to this dinginess. But her old life starting showing cracks. Khala talks about how boys from the Hindu community would tease Muslim girls in school and get Muslim boys in trouble, who would then be beaten up on the basis of these accusations. On February 28, 2002, at 5 pm on “jummah” day (considered holy for Muslims), some villagers came to her house and told her to leave the village. There were only 15 Muslim families in the village, all of whom had gathered at her place. “We didn’t want to escape and decided to face the consequences,” says Khala with resentment. The mob was huge—approximately 5,000 people. “They started attacking my house with stones, glass bottles and whatever they could find,” says Khala. As for the police, it arrived only at 7 pm after Khala had called them several times.

Anthony Lawrence

They took away 15-20 families from Ognaj village, including Niyaz Khala, to a relief camp in a government school in Juhapura, where already some 1,000 people were brought from different parts of Gujarat. Since then, Juhapura has been her home. The next house I visit is pink in color. A disheveled woman with unkempt hair and shabby clothes is sitting on the floor. She gives me a warm but uneasy smile. She asks me my name and ponders over it. It’s obvious that Muslims are wary of meeting strangers. “Seven of us used to stay in this small room,” says Mumtaz, as she lets down her guard.

umtaz works as a domestic help. She doesn’t remember her age. Her family too is from Ognaj village and was rescued from there. In the village, she and her husband used to work as agricultural laborers. Their earnings would suffice for the day. They lived in a jhuggi there and seemed content till the 2002 riots overturned their lives. They received `one lakh from the government, but it was spent in marrying off their two daughters. They visited Ognaj two years after the riots to see their house. “I couldn’t stop crying. We had lost whatever we had,” says Mumtaz. Worse was to come. After they were resettled in Ahmedabad, Mumtaz’s husband Rahim couldn’t find a job for more than two years. “Nobody wanted to employ Muslim men after the riots,” she explains. Her husband now drives an auto-rickshaw on rent and can barely sustain the family. Due to their crumbling financial situation, her elder son couldn’t

finish school and had to find work to support the family. However, her younger, a ninth grader, recently received `1,650 as scholarship and wants to study further. “I will save the money so that I can pay his college fees later on,” says the proud mother. Mumtaz and her family earn around `6,000-7000 per month. “We save `100 every month,” she says. Seeing their improved financial status, local authorities recently converted their Antyodaya red ration card (meant for families in dire crisis) with a BPL card. Over the years, there has been a precipitous decline in the income levels of Muslims as the riots forced us to abandon our previous employment and look for alternative sources of income. Most of those who were rehabilitated work in informal jobs, leading to a generation of illiterate and unskilled youth. Niyaz Khala has received three bravery awards and has travelled to 17 cities in India for the movement to get the Women’s Reservation Bill passed. Also, she has been made a conveyor of 84 resettlement colonies. “I have lost everything in the riots but my courage. I will fight to get justice,” says Khala proudly. It’s been tough for all of us. The 2002 riots brought about a sea change in the lives of Muslims and led to our marginalization. Despite our different social and economic status, we are compelled to stay in ghettos where we feel secure. It is here in tiny, airless rooms that people like Niyaz Khala, Mumtaz and I find solace. We struggle everyday and yet, despite having lost our worldly possessions, we have one thing intact—our courage. IL INDIA LEGAL January 31, 2015

RIGHTS/ / disabled/ accessibility

You can’t bar my entry braving odds, shivani gupta has waged a battle to ensure access in public places for the 2.6 crore disabled people in the country By Deepa Gupta SOARING HIGH Gupta (above right) with actor Sharmila Tagore at the launch of her book: (facing page) in Leh on a wheelchair

January 31, 2015

T was 1992 and New Year had just rung in. Shivani Gupta, 22, a feisty woman, was looking forward to a successful career in the hospitality sector. But in a shocking somersault, she had an accident, and was confined to a wheelchair for the rest of her life. Today, at 44, not only is she a recipient of the annual Helen Keller award—given to those who improve the lives of people with vision loss— but is also striving to change the Persons With Disability (PWD) Act 1995. And early this year, her autobiography, No Looking Back, was published. “The disability movement in our country is at a very nascent stage,” says Gupta. “We need to be more inclusive, while keeping peo-

ple of different socio-economic levels in mind.” And this is what goaded this access consultant to start AccessAbility, a consultancy that works towards improving accessibility in public places for the disabled and contributes to policies pertaining to them. Besides conducting training for the disabled in Mauritius and Cambodia, she is involved in drafting accessibility standards for India, civil aviation requirements for such people and working towards a barrier-free environment. All of which are dismal in India. The understanding of accessibility is limited in India due to lack of awareness and education despite the number of disabled in India being 2.68 crores, according to the 2011 Census. Even though funds have been

“When so much infrastructural development is happening across the country, why not in the area of accessibility? Developed nations are far ahead of us.” —Shivani Gupta, founder of AccessAbility

allocated to improve accessibility, not much has been done infrastructurally to make it easy for the disabled to access public places. “The attitude of the government is very laidback. There are lacunae in the PWD Act. Architecture colleges do not have an aggressive course on the subject of accessibility—it is only optional. Public procurement is a major problem too,” she says. She is demanding that the goods, services and works that the government buys must all be accessible for the disabled too.

upta was part of a team that conducted access audits in the government sector, corporates and NGOs across India, including remote locations like Ladakh. She found infrastructural shortfalls in many places. “When so much infrastructural development is happening across the country, why not in the area of accessibility? Developed nations are far ahead of us as they have strong acts, good human rights understanding and high civic sense. Our discussions on disability are also focused on urban areas. The rural population doesn’t even have a voice,” she stresses. Sadly, laws don’t help much as they do not apply to the private sector. This needs to

change. Besides setting up a legal framework, finances and training of professionals will help bring in an inclusive approach. As a consultant with the International Disability Alliance, Gupta has coordinated training programmes and undertaken two international studies on the accessibility issue. “India is a low middle income country. Only 6-11 percent people with disabilities, who require assistive technology, have access to it,” she explains. She was also master trainer for six workshops organized by the office of Chief Commissioner Disabilities. A training manual that she co-authored for the government is widely used by architects, designers, interior designers and engineers. She was also instrumental in creating an online access guide called Free to Wheel (www.freetowheel.com). In order to make tourism accessible to the disabled, Gupta worked with Himalaya on Wheels, Ladakh, India’s first travel package for disabled persons. “I travelled to Leh and proved how anyone with disabilities can access tough geographical terrain with a little sensitization,” she says. She has audited and recommended access changes across 14 destinations in Leh. “We are also providing technical guidance to the Ministry of Tourism and Culture and Indian Institute of Tourism and Travel Management in these issues.” Besides, she is also advising hotels, hospitals, railways and the Metro on improvisations required. “The railways have a separate coach for the disabled. But why this discrimination? Why cannot the entire train be accessible?” she asks. Meanwhile, the Ministry of Social Justice and Empowerment has plans to develop a National Institute of Universal Design. “If it is made and run well, I see some good things happening,” says Gupta, smiling. IL

Right to entry PWD

Act must ensure that all facilities and services open to public are accessible to persons with disabilities Public Procurement Act must ensure that everything purchased with public money is inclusive of and accessible to persons with disabilities Building bylaws must include accessibility as a requirement for building permits Accessibility must be cross-cutting in the Five Year Plan document for all ministries concerned

INDIA LEGAL January 31, 2015

DIARY/ shamir reuben

Happy Birthday,

Mom!

here‛s a touching letter written by a son to his mother who passed away three years ago, leaving him bereft and lonely Dear Mom, I remember the birthday we spent together three years ago. It must have been a few weeks into your chemo, but the scars of your struggle were now starting to show. For the first time in many years, you and I didn’t stay up late. For the first time, there was no birthday countdown and that childish, excited wait. For the first time, there was no birthday cake because no matter what you ate, your head would spin and you would be nauseated. It felt sad, having to celebrate your liveliness so quietly. On the day of your birthday, I overslept. When I woke up, the first thing I did was sprint up the steps to your bedroom door. I imagined you would be sleeping, so I quietly pushed it open in the hope that I’d be the first face you would see, as you woke up on your special day. But as I stepped into your room, I felt this uneasy silence that I had for so long learnt to associate with gloom; experienced in the countless hospital trips that conditioned us to expect nothing but doom. I saw an empty bed, and felt a rush of blood to my head— something’s wrong. I knew that you couldn’t even walk straight without me

January 31, 2015

Illustrations: Anthony Lawrence

by your side to take your weight. I could feel my hands shake; I could feel the insides of my head ache and throb and about to break. I called out your name, and I heard mine in return. I felt a sigh of relief as I immediately turned to where it came from. As I pushed open the bathroom door, I saw you slouched against the wall. Trying to maintain a fine line between furious worrying and escalating dread, I just stood there with a million thoughts inside my head. You just looked at me, and smiled. Typical of you, you know? When you realized there was tension you couldn’t dilute, you always flashed a smile so adorably cute, hoping I would forget. For a moment I did. But I asked again. You smiled once more. And then you spoke. In words I wish I remembered, so I could put them in quotes and do exact justice to how you saw things with hope. You told me how it hurt to be a burden. About how on days that hovered between bad and worse, you felt like a perpetual curse that just refused to go away. You told me how you didn’t like it when you needed me to walk just two meters or even less; how it made you feel so helpless, every single day. So on your birthday, you decided to be different. It hurts my heart to imagine how you swayed across the room to get to where you fell; but for that one day, living in hell made you feel a little more at ease, even if it meant falling to your knees, but at least you did it all by yourself. I didn’t know whether to smile or to cry, but the things you said were like invisible forces pulling me from both sides. I smiled back and heaved you up, as I walked you back to your bed. You were smiling, but your eyes were wet. I tried to give you the warm hug that you’d mastered over the years, one that so often helped my

tears find a reason to change into something else. If only you knew how much I live that memory, even today. Three years later, I celebrate your birthday the same way as you and I did back then. There is silence, and a quiet birthday wish in this letter; and an empty realization that things could have been so much better. What I miss far outweighs what I have found, but the balance would tilt so drastically if you were around. Today, I wish I could borrow your shoulders to keep my head; I wish I could kiss your warm cheeks and tell you everything I never said, instead of writing things you will never read unless heaven has a speed post service (which it desperately needs). What I would give to have you live not in memories, but somewhere real. Every second is now spent wondering how that would feel. Anyway, this isn’t about my wishes, it is about how hard it is loving you from afar. I only wish I had words to define these feelings of mine with a beauty that I wish was half as perfect as you are. I hope you have fun there (for Heaven’s sake) and that God employs the best bakery to make your cake. Stay as lively as you’ve always been, remember to lick the icing from the bottom of the cake tin, just how you’ve always liked it. Down here, Dad will raise a drink and we all will keep you in our prayers and think about the countless reasons you gave us to make happiness our own. We’ll keep missing you, even if we are three parts of a broken mess; and we will love you as things are, nevertheless. I miss you. I love you. Happy Birthday. Love,

Shamir

INDIA LEGAL January 31, 2015

SPORTS/ cricket/world cup 2015

The inevitable cull india will go into the prestigious tournament without virender sehwag, yuvraj singh, gautam gambhir, zaheer khan and harbhajan singh, the heroes of the last edition in 2011. are the ommissions justified? By Gaurav Kalra

January 31, 2015

N sporting life, time is at a premium. Cricketers in their heydays can virtually walk on water. They can wave bats like magic wands and make cricket balls swing, seam and spin at their command. But with time, their powers decline, their bodies creak and complain, and younger men bursting with ambition and skill jostle to take over. They fade and are finally forsaken. Virender Sehwag, Yuvraj Singh, Gautam Gambhir, Zaheer Khan and Harbhajan Singh—these men were integral to the cricket team on that musty April night in 2011, when India had just conquered the world by winning the tenth cricket World Cup in Mumbai. Less than four years later, the door has been all but slammed shut on their international careers. The writing was on the wall for a while now. None of them had played a one-day international (ODI) in 2014. Sehwag and Gambhir had played their last ODI in 2013, Zaheer in 2012, and Harbhajan in 2011. India has played 95 ODIs after winning the last world cup. Gambhir has fea-

tured in 33, Yuvraj in 19, Sehwag in 15, Zaheer in nine, and Harbhajan in three. Their records in these games range from mediocre to moderate. Long ropes have run their course and India’s one-day outfit has moved on decisively. In a carefully planned move, the Indian cricket board swapped the schedule of the domestic season around to play one-day tournaments before the four-day Ranji Trophy. The intention was to allow both discarded veterans as well as emerging players to stake a claim for the few spots on offer in the World Cup squad in Australia and New Zealand from February 14, 2015. But, none of these giants made a compelling case. Zaheer’s injuries have been frustratingly slow to heal, forcing him to simply bide his time on the sidelines. Sehwag and Gambhir made one 50-plus score each in six innings. Harbhajan took eight wickets in nine games and averaged nearly 49. And Yuvraj, the only one among the lot with a realistic shot at a recall, limped to 208 runs in nine innings, at an average of 26. Far from grabbing the selectors by the collar and hollering: “Look at

SCRIPTING HISTORY (Facing page) The triumphant Team India with the World Cup in 2011 (Below) The new ODI team for World Cup 2015 will have to justify BCCI’s decision to leave out stars like Sehwag, Yuvraj, Gambhir, Zaheer and Harbhajan

INDIA LEGAL January 31, 2015

SPORTS/ cricket/world cup 2015

The final 15 The Board of Control for Cricket in India recently announced the 15-member team for the World Cup Down Under, early this year. The team comprises MS Dhoni (captain and wicketkeeper), Shikhar Dhawan, Rohit Sharma, Virat Kohli, Ajinkya Rahane, Suresh Raina, Ambati Rayudu, Ravindra Jadeja, R Ashwin, Akshar Patel, Ishant Sharma, Mohammed Shami, Umesh Yadav, Bhuvneshwar Kumar and Stuart Binny.

GREAT EXPECTATIONS The likes of Kohli, Ashwin, Rohit and Dhoni, among others, will have to bear the burden of steering the team towards victory in the tournament

January 31, 2015

me, I am still around”, they barely registered on the radar. Contrast those numbers with the ones notched up by younger men who made the cut. Manish Pandey and Manoj Tiwary both made over 500 runs in 50-over matches, this season. Ashoke Dinda and Dhawal Kulkarni have taken nearly 20 wickets each. Kuldeep Yadav, Karn Sharma and Akshar Patel hold out much promise in their spinning fingers. Their claims were simply too strong to ignore any longer. It is foolhardy to argue that the weight of runs and wickets alone should be the criteria for selection. With proven pedigree, any of these veterans could have been considered

for a high-pressure tournament in alien conditions. Their experience and ability to soak in pressure in big game situations is, no doubt, a huge asset. However, with the likes of MS Dhoni, Virat Kohli, Suresh Raina, Rohit Sharma, R Ashwin and Ishant Sharma forming a strong core around which to construct the squad, there simply was no appetite to take a gamble or two. India’s triumph at the 2011 World Cup was borderline miraculous, with a rag-tag bowling and fielding unit somehow inspiring each other towards glory. But on unforgiving big Australian grounds, there will be no place to hide, and four years on, teams will arrive fitter, stronger and sharper. India can no longer invest in single, skilled individuals and hope for the best. The culling of men with exceptional track records is never emotionless. But in elite sport, form and vitality trump figures in record books. In the World Cup that India won, Yuvraj Singh was the man of the tournament, Gautam Gambhir top scored in the final, Zaheer Khan was India’s highest wicket taker, Virender Sehwag launched the campaign with a blistering 175 in the tournament opener, and Harbhajan Singh had the best economy rate among Indian bowlers. Those statistics embellish stunning careers. However, they are no longer tickets to another shot at replicating that grand Mumbai night. The baton has passed to a zestful new generation that will aim to defend the title these men won. Like sand in a fist, their time has passed. IL

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GLOBAL TRENDS/ sri lanka polls

The mighty fall of Rajapaksa T

power is a heady drug and can make one feel invincible. as lanka’s former president alienated his own party and minorities with strong-arm tactics, the electorate handed him a defeat he least expected By Col R Hariharan

HE recently concluded Sri Lankan presidential elections belied President Mahinda Rajapaksa’s confidence as he was beaten by Maithripala Sirisena, former health minister and a longterm colleague of his. People seem to have preferred “unknown angel” Sirisena to “known devil” Rajapaksa, as he described himself in an election rally. Rajapaksa was so confident of winning the people’s mandate for a third term that he advanced the election by two years before his second term ended. But Sirisena, general secretary of the Sri Lanka Freedom Party (SLFP), emerged as a challenger on the eve of the election announcement.

NEW ROLE Maithripala Sirisena takes oath as president in Colombo on January 9 UNI

January 31, 2015

According to the official results, Sirisena won by a 3.7 percent margin over the more crafty Rajapaksa and was preferred by 51.38 percent of the 121 million voters. This may not appear to be a bad performance if we consider that in 2005, Rajapaksa’s scrapped through with a wafer-thin 1.86 percent majority over his rival Ranil Wickremesinghe to become president. But a decade later, Rajapaksa went to the polls with the enormous executive powers of a serving president. In 2009, he used the popularity he earned after the victory in the Eelam War to gain twothirds majority in parliament for his United People’s Freedom Alliance (UPFA) coalition and also handsomely won the presidential election for a second time in 2010. Despite these advantages, Rajapaksa seemed to have lost direction and that cost him this presidency. But the central reason for his electoral debate has been the loss of support within his own party and the people at large, particularly minorities. Two major aberrations—concentration of power in the hands of the Rajapaksa family and the misuse of executive presidency— marked his second term as president. Since 2010, he used his parliamentary majority to consolidate his power base. In the process, he manipulated it to pass the 18th Amendment to the constitution, neutralizing the 17th one which gave a role to parliament in appointments for national institutions such as the judiciary, election commission, etc, and which made the president more accountable. But the 18th amendment gave the president overriding powers to appoint candidates, who did the damage control caused by poor governance. CHINESE PRESENCE Typically, many mega projects like the construction of Hambantota Port and airport complex and Colombo port development were financed by Chinese loans offered at usurious interests and executed by Chinese contractors. The whole process lacked

transparency, as there was no open bidding. There were also reports of widespread corruption in public sector bodies, draining the exchequer. Opposition efforts to inquire into allegations of corruption came to naught. Instead, threat and intimidation were often used to discourage them. For instance, the opposition United National Party (UNP) Commission that looked into allegations of corruption in the Hambantota project was threatened in public by a pistol-waving SLFP deputy mayor. The Bribery Commission and the

DRIFTING OF OLD ALLIES Sirisena was a one-time colleague of ousted president Mahinda Rajapaksa

Rajapaksa family’s enormous clout and its arrogant use of power alienated many senior leaders like Sirisena, who were sidelined in decision-making.

GLOBAL TRENDS/ sri lanka polls

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GOVERNMENT BY A FEW The second term of Mahinda Rajapaksa (extreme right) was marked by cronyism, corruption and high-handedness of some family members

January 31, 2015

police were ineffective in taking quick followup action in such cases. Scribes who criticized these aberrations were hounded out of the country. The army, instead of the police, handled trade union protests and other civilian activities, indicating increased militarization of public affairs. The writ of the president’s two brothers, Basil and Gotabaya, who were minister for development and secretary for defense and urban affairs respectively, seemed to influence most government decisions. Thugs and ruling party goons, often led by elected representatives, were involved in many a criminal case and disrupted political meetings of the opposition and terrorized the free press. This did not stop even in the preelection period. Ruling party goons attacked the residence of former president and estranged SLFP leader, Chandrika Kumaratunga and the election offices of Sirisena and the UNP. The Campaign for Free and Fair Elections received a record 574 complaints of election-related incidents, including 500 cases of election law violation. There were 47 cases of election violence, 16 relating to the use of firearms.

SIDELINED LEADERS Overall, Rajapaksa family’s enormous clout and its arrogant use of power seem to have alienated many senior leaders of the SLFP like Sirisena, who were sidelined in decisionmaking. The decline of Rajapaksa’s public image, coupled with his failure to carry his team, probably disillusioned Sirisena and as many as 26 MPs and scores of UPFA provincial council members crossed over to the opposition. This gave an opportunity for Chandrika Bandaranaike loyalists to encourage Sirisena to contest against the president. She joined hands with Ranil Wickremesinghe, leader of the UNP, and former army commander Sarath Fonseka, who gave up their own presidential aspirations to field Sirisena as a common opposition candidate. Surprisingly, this seems to have energized other UNP leaders, who were wrangling for control of the party. Their sole aim was to defeat Rajapaksa using Sirisena. Even the Buddhist right-wing party, the Jathika Hela Urumaya, a long-term ally of Rajapaksa and the UPFA coalition, deserted him to support Sirisena when he did not respond satisfactorily to its complaints of

poor governance, cronyism and corruption. Rajapaksa fared no better with his Muslim allies, who generally supported him. Muslims, who form about 10 percent of the island’s 20-million population, had their faith in Rajapaksa shaken after he failed to prevent antiMuslim activities of Buddhist fringe groups. The Bodu Bala Sena led an anti-Muslim riot in Alutgama that quickly spread to Beruwala (close to Colombo) on June 15, 2014, leaving three killed, over 80 injured and nearly 200 houses and property of Muslims torched and destroyed. Over 2,000 were rendered homeless. This forced the two major Muslim partners of UPFA—the Sri Lanka Muslim Congress and the All Ceylon Makka Congress—to cut loose from the ruling alliance. Their support to Sirisena brought him the solid support of Muslim votes. IGNORED TAMILS Despite Rajapaksa’s unchallenged power after the Eelam War, he didn’t kick-start a political process to resolve the Tamil minority’s long-standing grievances. He did not fulfil even the basic demands of the Tamil National Alliance (TNA) which captured power in the Northern Provincial Council elections. Though Sirisena offered no specific plans to address the Tamil issue, TNA decided to support him to remove Rajapaksa, and this paid him dividends, as the Tamils voted in his favor. As promised in the election manifesto, Sirisena was sworn in as president and Ranil Wickremesinghe as prime minister. Sirisena’s manifesto focuses on three weaknesses of the Rajapaksa rule—corruption, cronyism and accumulation of power in the hands of the president and his family. It promises to replace the “present autocratic executive presidential system” with a “constitutional structure with an executive that is allied to

UNI

parliament through the cabinet”. Sirisena hopes that within 100 days, he will form a multi-party National Unity Alliance government to address urgent issues, and then, hold parliamentary elections to repeal the 18th Amendment by bringing in a 19th Amendment to free national institutions from the president’s control in the next six years. This is a tall order, because his New Democratic Front does not control the parliament. However, after defections, the UPFA’s strength has also come down. So Sirisena is likely to face a turbulent time in the next 100 days. Whether he succeeds or not, democracy has succeeded in Sri Lanka, freeing it from the autocratic rule of Rajapaksa. Only time will tell if Sirisena can redeem the peoples’ faith in democratically setting things right. IL

TABLES TURN Supporters of Sirisena rejoice at the election results

(Col R Hariharan, is a retired military intelligence specialist on South Asia and served with the IPKF in Sri Lanka as head of intelligence. He is associated with the Chennai Centre for China Studies and the South Asia Analysis Group) INDIA LEGAL January 31, 2015

GLOBAL TRENDS/ 2014 / defining events

January 31, 2015

THE WORLD ORDER CHANGETH our future will be shaped in many ways by what happened in the year gone by By George Friedman

’T

NO SOLUTION IN SIGHT Protests in Jordan over Israel’s offensive in Gaza Strip in July 2014. West Asia is caught in a perpetual bloody turmoil ever since western powers redrew boundaries in the region to suit their interests

is the season to make lists, and a list shall be made. We tend to see each year as extraordinary, and in some senses, each year is. But in a broader sense, 2014 was merely another year in a long chain of human triumph and misery. Wars have been waged, marvelous things have been invented, disease has broken out, and people have fallen in love. Nonetheless, lists are called for, and this is my list of the five most important events of 2014. 1: EUROPE’S PERSISTENT DECLINE The single most important event in 2014 was one that did not occur: Europe did not solve its longstanding economic, political and social problems. I place this as number one because regardless of its decline, Europe remains a central figure in the global system. The European Union’s economy is the largest in the world, taken collectively, and the continent remains a

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INDIA LEGAL January 31, 2015

GLOBAL TRENDS/ 2014 / defining events

That the major economic centers of the world are completely out of sync with each other indicates that a major shift in how the world works may be underway. center of global commerce, science and culture. Europe’s inability to solve its problems, or really to make any significant progress, may not involve armies and explosions, but it can disrupt the global system more than any other factor present in 2014. The vast divergence of the European experience is as troubling as the general economic malaise. Experience is affected by many things, but certainly the inability to find gainful employment is a central feature of it. The huge unemployment rates in Spain, Greece and southern Europe in general profoundly affect large numbers of people. The relative prosperity of Germany and Austria diverges vastly from that of southern Europe, so much so that it calls into question the European Union’s viability.

We have seen a rise of anti-EU parties not only in southern Europe but also in the rest of Europe as well. None have crossed the threshold to power, but many are strengthening along with the idea that the benefits of membership in a united Europe, constituted as it is, are outweighed by the costs. Greece will have an election in the coming months, and it is possible that a party favoring withdrawal from the eurozone will become a leading power. The United Kingdom’s UKIP favors withdrawal from the European Union altogether. There is significant and growing risk that either the European Union will have to be revised dramatically to survive or it will simply fragment. Its fragmentation would shift authority formally back to myriad nation states. Europe’s experience with nationalism has been troubling, to say the least—certainly in the first part of the 20th century. And when a region as important as Europe redefines itself, the entire world will be affected. Therefore, Europe’s failure to make meaningful progress in finding a definitive solution to a problem that began to emerge six years ago has overwhelming global significance. It also raises serious questions about whether the problem is soluble. It seems to me that if it were, it would have been solved, given the threat it poses. With each year that passes, we must be open to the possibility that this is no longer a crisis that will pass, but a new, permanent European reality. This is something we have been pointing to for years, and we see the situation as increasingly ominous because it shows no signs of improving.

NO METHOD TO THIS ECONOMIC CHAOS The Greek economy was thrown into turmoil and the richer EU nations like Germany put tough conditions to bail it out, much to the discomfort of the country’s population

January 31, 2015

2: UKRAINIAN AND RUSSIAN CRISES Historically, tensions between Russia and the European Peninsula and the United States have generated both wars and near wars and the redrawing of the borders of both the peninsula and Russia. The Napoleonic Wars, World War I, World War II and the Cold War all ended in dramatic redefinitions of Europe’s balance of power and its map. Following from our first major event of the year, the events in Ukraine and the Russian economic crisis must rank as the second most important event. Stratfor forecast several years ago that there would be a defining crisis in Ukraine that would be the opening to a new and extended confrontation between the European Peninsula and the US on one side and Russia on the other. We have also forecast that while Russia has regional power, its long-term sustainability is dubious. The same internal factors that brought the Soviet Union crashing down haunt the Russian Federation. We assumed that the “little Cold War” would begin in the mid-2010s, but that Russian decline would not begin until about 2020. We have seen the first act, and we continue to believe that the final act isn’t imminent, but it is noteworthy that Russia is reeling internally at the same time that it is trying to cope with events in Ukraine. We do not expect Russia to collapse, nor do we expect the Ukrainian crisis to evolve into a broader war. Nevertheless, it seems to me that with this crisis we have entered into a new historical phase in which a confrontation with significant historical precedents is re-emerging… . The Russians think of this as an event triggered by the United States. In the newspaper Kommersant, I was quoted as saying that the American coup in Ukraine was the most blatant in history. What I actually said was that if this was a coup, it was the most blatant in history, since the United States openly supported the demonstrators and provided aid for the various groups, and it was quite open in supporting a change in government. The fact that what I said was carefully edited is of no importance, as I am not important in this equation. It is important in that it reveals a Russian mindset that assumes that covert forces are operating against Russia. There are forces operating against it, but there is nothing par-

IMAGE MANAGEMENT MP doesn’t exactly shine on the various parameters of development. But Shivraj Singh Chouhan wants a rosy picture painted through a costly PR exercise

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ticularly covert about them. The failures of Russian intelligence services to manage the Ukrainian crisis and the weakening of the Russian economy raise serious questions about the future of Russia, since the Russian Federal Security Service is a foundation of the Russian state. And if Russia destabilizes, it is the destabilization of a nation with a massive nuclear capability. Thus, this is our second most important event.

FAITH WITHOUT MERCY The Islamic State has unleashed unprecedented violence in the territory it has occupied in Syria and Iraq, not even sparing followers of Islam

3: THE DESYNCHRONIZATION OF THE GLOBAL ECONOMY Europe is predicted to see little to no growth in 2015, with some areas in recession or even depression already. China has not been able to recover its growth rate since 2008 and is moving sideways at best. The US announced a revision indicating that it grew at a rate of 5 percent in the third quarter of 2014. Japan is in deep recession. That the major economic centers of the world are completely out of sync with each other, not only statistically but also structurally, indicates that a major shift in how the world works may be underway.... The desynchronization of the international system raises questions about what globalization means, and whether it has any meaning at all. But a major crisis is occurring in economic theory. The forecasts made by many leading economists in the wake of 2008 have not come to pass. Just as Milton Friedman replaced INDIA LEGAL January 31, 2015

GLOBAL TRENDS/ 2014 / defining events

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CAN WE GIVE THEM A SAFER WORLD? Children were unsuspecting victims of conflicts across the world, be it Israel’s offensive on Gaza (like in this picture) or Islamic State’s atrocities on Yezidis, attack on a Pakistani school or the abduction of school girls in Nigeria

January 31, 2015

John Maynard Keynes as the defining theorist, we are awaiting a new comprehensive explanation for how the economic world is working today, since neither Keynes nor Friedman seem sufficient any longer. A crisis in economic theory is not merely an academic affair. Investment decisions, career choices and savings plans all pivot on how we understand the economic world. At the moment, the only thing that can be said is that the world is filled with things that need explaining. 4: THE DISINTEGRATION OF THE SYKES-PICOT WORLD Sir Mark Sykes and Francois Georges-Picot were British and French diplomats who redrew the map of the region between the Mediterranean Sea and Persia after World War I. They invented countries like Lebanon, Jordan, Syria and Iraq. Some of these nation-states are in turmoil. The events in Syria and Iraq resemble the events in Lebanon a generation ago: The central government collapses, and warlords representing various groups take control of fragments of the countries, with conflicts flowing across international boundaries.... The question is how far the collapse of the post-World War I system will go. Will the national governments reassert themselves in a decisive way, or will the fragmentation continue? Will this process of disintegration spread to other heirs of Sykes and Picot? This question is more important than the emergence of

the Islamic State... . What is significant is that while a force, the Islamic State is in no position to overwhelm other factions, just as they cannot overwhelm it. Thus it is not the Islamic State, but the fragmentation and the crippling of national governments that matters. Syrian President Bashar al Assad is just a warlord now, and the government in Baghdad is struggling to be more than just another faction. Were the dynamics of the oil markets today the same as they were in 1973, this would rank higher. But the decline in consumption by China and the rise of massive new sources of oil reduce the importance of what happens in this region. It still matters, but not nearly as much as it did. What is perhaps the most important question is whether this presages the rise of Turkey, which is the only force historically capable of stabilizing the region. I expect that to happen in due course. But it is not clear that Turkey can take this role yet, even if it wished to. 5: THE BIRTHS OF ASHER AND MIRA I was given two new grandchildren this year. For me, this must be listed as one of the five major events of 2014. I am aware that it is less significant to others, but I not only want to announce them, I also want to point out an important truth. The tree of life continues to grow new branches inexorably, even in the face of history, adversity and suffering. The broad forces of history and geopolitics shape our lives, but we live our lives in the small things. As much as I care about the other four matters—and I do—I care much more for the birth and lives of Asher and Mira and my other grandchild, Ari. Life is experience in the context of history. It is lived in intimate contact with things that history would not notice and that geopolitics would not see as significant. “There are more things ... than are dreamt of in your philosophy,” Hamlet said to his friend Horatio. Indeed, and their names are Asher, Mira and Ari. This must not be forgotten. Have a happy New Year’s, and may God grant you peace and joy in your lives, in spite of the hand of history and geopolitics IL

—Courtesy Stratfor

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MEDIA/ the us /reality tv / ethics

When TV becomes macabre the abc television show ny med filmed mark chanko’s final moments without the approval of his family, raising a legal storm. even though his face was blurred, his wife recognized him. “i saw my husband die before my eyes,” she says. By Charles Ornstein

NITA Chanko could not sleep. At 4 am, on an August night in 2012, she settled onto the couch in her Yorkville living room with her dog, Daisy, and her parrot, Elliott, and flipped on the DVR. On came the prior night’s episode of NY Med, the popular real-life medical series set at NewYorkPresbyterian Hospital, starring Dr Mehmet Oz. Mrs Chanko, 75, was a fan of the show and others like it.” It starts off, there’s a woman with stomach cancer and her family, and then there’s somebody with a problem with their baby, I think it was a heart,” she remembered. “And then I see the doctor that treated my husband.” Mark Chanko, her husband, had died 16 months earlier, in April 2011, after being struck by a sanitation truck while crossing a street near his home. The doctors and nurses at NewYork-Presbyterian Hospital/Weill Cornell Medical Center tried in vain to save his life. On the TV screen, she saw the chief surgery resident Sebastian Schubl, responding to an emergency in which a man is hit by a vehicle. “And then I see, even with the blurred picture, you could tell it was him,” she said. “You could hear his speech pattern. I hear my husband say, ‘Does my wife know I’m here?’.”

January 31, 2015

There was no doubt in her mind: The blurred-out man moaning in pain was her husband of almost 46 years, the Korean War veteran she met in a support group for parents without partners. “I hear them saying his blood pressure is falling. I hear them getting out the paddles and then I hear them saying, ‘OK, are you ready to pronounce him?’.” She clenched her fists so tightly that “the palms of my hands almost looked like stigmata” and her mouth got so dry that her tongue stuck to the roof “as if I had just eaten a whole jar of peanut butter.” “I saw my husband die before my eyes.”

o one in the Chanko family had given NY Med permission to film Mr Chanko’s treatment at the hospital or to broadcast the moments leading up to his death. Such moments—indeed, all of the intimate details of a person’s health—are supposed to

be shared only with a patient and whoever they designate, under a federal law known as Hipaa. In the 18 years since the law was passed, doctors and hospitals have put in place an ever-expanding list of rules meant to protect patient privacy. Hospitals warn staff members not to discuss patients’ conditions on elevators. Drug stores ask customers to stand back so they don’t overhear information about others’ prescriptions. Yet, even in the face of this growing sensitivity, reality shows like NY Med have proliferated, piggybacking off popular fictional counterparts like ER, Grey’s Anatomy and House. Medical ethicists and groups like the American Medical Association worry that these shows exploit patients’ pain for public consumption, but their makers argue that they educate viewers and inspire people to choose careers in medicine. “We have heard many stories of people who were inspired to go to medical school, to become nurses or paramedics, or to head

TRAUMA, ALL OVER AGAIN (Above) Anita Chanko, who watched the televised moments of her husband Mark Chanko’s death (Facing page) Deceased Mark Chanko

INDIA LEGAL January 31, 2015

MEDIA/ the us /reality tv / ethics

ALL FOR THE CAMERA (Below) A cameraman records a procedure in an operating room for the reality show NY Med (Facing page) Dr Sebastian Schubl, who treated Mark Chanko

January 31, 2015

into particular specialties like trauma or transplant surgery after watching our show,” Terence Wrong, executive producer of NY Med, said in an email. (He declined to discuss Mr Chanko’s case or to be interviewed for this article.) Hospitals like NewYork-Presbyterian, meanwhile, have seized upon such shows as a way to showcase themselves, vying to allow TV crews to film their staff and patients—even emergency-room patients sometimes in no condition to give permission.

hen the first season of NY Med was broadcast on ABC in 2012, the hospital’s vice president of public affairs at the time, Myrna Manners, told PR Week: “You can’t buy this kind of publicity, an eight-part series on a major broadcast network.” (A second season, also based at the hospital, ran over the summer and garnered more viewers than the first. ABC has not announced whether another season is planned.)

For the Chankos, the episode of NY Med added a coda of anger to more than a year of grief. Their daughter, Pamela Chanko, said seeing the specifics of her father’s injuries and death on TV sent her spiraling back into clinical depression. “It just sent me straight back to square one,” she said. Kenneth Chanko, Mr Chanko’s son, filed complaints with the hospital, the New York State Department of Health, ABC, a hospital accrediting group, and the US Department of Health and Human Services’ civil rights office. The show had caused him “great emotional distress and psychological harm,” he wrote in a complaint to the hospital. “I had to unnecessarily relive my father’s death at your hospital a second time, while knowing that the public at large was able to—and continues to be able to—watch my father’s passing, for the purposes of what can only be described as driveby voyeuristic ‘entertainment’.” ABC quickly removed the segment involv-

ing Mr Chanko from its website, DVDs and future viewings (although not from the promotional blurb for the episode, which still says “Sebastian Schubl, a Dr McDreamy-like young trauma surgeon, tries to save the day when a critically injured pedestrian struck by a vehicle is brought to the ER.”) In 2013, the state cited the hospital for violating Mr Chanko’s rights. That was not enough for the Chankos, who sued ABC, NewYork-Presbyterian and Dr Schubl for damages. An appellate panel recently dismissed the case, but the family has asked for that decision to be reviewed. Dr Schubl and the hospital declined to comment for this article, citing the continuing litigation. ABC referred a reporter to Mr Wrong’s statement. In court filings, the hospital and ABC do not dispute that they did not have consent from Mr Chanko or his family, but they say the patient is not identifiable to the public. The network has asserted that because NY Med is produced by its news division, it is protected by the First Amendment. Lawyers for NewYork-Presbyterian have argued that the state does not recognize a common law right to privacy and that any privacy right Mr Chanko did have ended upon his death. They say that the Chankos themselves are responsible for their loss of privacy. “There would today still be no identification of the patient or his family but for the latter’s publication via this lawsuit,” a brief for the hospital says.

he day Mr Chanko was hit by a private garbage truck had been entirely forgettable, his wife said. “If I had a diary, I’d leave the page blank.” They arrived home past 11 pm after spending a few days at their second home in Goshen, Connecticut, in Litchfield County. As they unloaded their luggage, Mr Chanko looked in the refrigerator and noticed they were out of milk and bananas. He decided to run across York Avenue, in the Yorkville section of Manhattan, to a deli. After Mr. Chanko had been gone a few minutes, the building doorman buzzed up and asked Mrs. Chanko to come downstairs. Not understanding the urgency, she said she would be down in a bit. The doorman buzzed again. Moments later, the doorbell rang. When she answered, a

Medical ethicists and groups like the American Medical Association worry that these shows exploit patients’ pain for public consumption. longtime neighbor grabbed her arm. “Anita, you have to come with me,” she recalled the neighbor as saying. “Mark needs you. He’s been hurt.” When she got downstairs and walked outside, Mrs Chanko saw an ambulance and her 83-year-old husband on a gurney, his head bandaged. The neighbor drove her to NewYork-Presbyterian. There, she watched as the medical team hurriedly pushed the gurney carrying her husband near the emergency room. “I rushed up because I wanted to run alongside him and just hold his hand and reassure him and say, ‘You’ll be OK,’” she said. The doctor said no. “That would have been my last chance to even say something to him.” Mr Chanko was initially alert and awake, and able to respond to questions, medical INDIA LEGAL January 31, 2015

MEDIA/ the us /reality tv / ethics

NOT TO TAKE THINGS LYING DOWN Anita Chanko with son Kenneth. The Chankos have sued ABC, the hospital and Dr Schubl for violation of privacy

January 31, 2015

records show. But he was in bad shape: His pelvis had been broken in several places, as had his left femur. The skin was ripped off his right leg. Outside the operating room, doctors and nurses could not detect Mr Chanko’s pulse and resuscitated him. In the operating room, he became more unstable, medical records show. Twice more they tried to bring him back. He was pronounced dead at 1:17 am. Dr Schubl and a social worker walked into the conference room, where the family was waiting, and shut the door. “I did everything I possibly could,” Dr Schubl told them. “Unfortunately, he did not survive. I am sorry.” The family did not know until the episode was broadcast that a camera was focusing on the closed door of the room where they had gathered and that audio of Dr Schubl was being recorded. Afterward, on the episode, Dr Schubl turned to the camera and said: “Rough day. Rough day.”

“It was the last clip before the commercial,” Mrs Chanko said, “or as I put it, ‘Watch this man die, now we’re going to sell you some detergent.’”

ccording to PR Week, the public affairs staff at NewYork-Presbyterian contacted Mr Wrong in 2008, eager to bring one of his shows to the hospital. Mr Wrong had completed two shows based at Johns Hopkins Hospital in Baltimore and was working on another in Boston. After three years of trying, production began in 2011 at two campuses of NewYorkPresbyterian/Weill Cornell on the Upper East Side and Columbia University Medical Center in Washington Heights, both in Manhattan (some filming also took place at Lutheran Medical Center in Brooklyn). But two months into filming the first season, Mr Wrong later told the Philadelphia Daily News: “Weill Cornell was just not delivering enough traumas.” To capture more

drama and action for NY Med, he said he signed contracts with other emergency rooms and began keeping videographers in NewYork-Presbyterian’s emergency room at Weill Cornell 24 hours a day. Mr Wrong ended up with thousands of hours of footage, and the luxury of cutting any example that was not perfect, he told Capital New York last year. “You can be shut out of a critical moment that the case lacks emotional resonance without,” he said. “I will give you one of those: the ‘goodbye’ moment, it is the moment where a family says goodbye to their loved one going into surgery. If you don’t capture that moment, because a nurse shut the door on your camera’s face, you kill that piece.” Some of the patients and families captured by Mr Wrong’s cameras have no complaints. “I think they were honest in their portrayal of our family and the love that we had and the concerns that any average family would go through when faced with this type of surgery,” said Dara van Dijk, whose mother’s heart valve operation was featured on the same episode as Mr Chanko’s death. Ms van Dijk did have one quibble: She was shown falling off a chair while meeting Dr Oz in the episode. “In a million years, I didn’t think that they would show that,” she said. Typically, hospitals have not received money in return for allowing medical reality shows to set up shop, and NewYork-Presbyterian is no exception, an ABC spokeswoman said in an email. “That was very important to us,” said Peggy Slasman, a spokeswoman for Massachusetts General Hospital, which was featured on Mr Wrong’s Boston Med. “This was not entertainment. This was news. We would not have participated if they had said, ‘For $20,000 or for $50,000, we will include you in a series.’ We’re not the marketing department. We processed it in a similar way as we would any request that we would get from the media.” The real payoff for participating hospitals is distinguishing themselves at a time when other forms of promotion are no longer as effective, said Jennifer Coleman, the senior vice president of marketing and public relations for Baylor Scott & White Health, a large hospital system in Texas. Baylor self-produced a reality series about its cancer center

and paid to broadcast it on local television. “Advertising is just so saturated right now,” she said. “You put your thumb over anybody’s ad and it’s just the same. That’s what people are trying to break through.” By participating in a major network program, she added, “They get that endorsement.”

atients caught up in emergencies are especially vulnerable, posing special issues for reality shows. They may not be conscious or able to speak for themselves; they may be quite literally exposed, as caregivers work to help them. Joel Geiderman, cochair of the emergency medicine department at Cedars-Sinai Medical Center in Los Angeles and chairman of the ethics committee of the American College of Emergency Physicians, compared it to taping in a store dressing room and only asking for permission later. Patients’ loved ones, too, are caught up in the moment,

Lawyers for the hospital argue that Mr Chanko’s privacy rights ended upon his death and that the Chankos themselves are responsible for their loss of privacy. making decisions on the fly. The emergency physicians group opposes “the filming for public viewing of emergency department patients or staff members except when they can give full informed consent prior to their participation,” yet show after show returns to the emergency room, drawn by the life-or-death stakes. The New York Times Co was sued for invasion of privacy in the early 2000s, by a group of patients in New Jersey who appeared in Trauma: Life in the ER, a series produced for Discovery’s Learning Channel. One appeals court ruled that the show qualified as news and deserved the same protections under the law. Many of the plaintiffs settled their cases individually, a lawyer for them said. Mr Wrong of NY Med said by email that he had not been sued over his medical shows before: “We put enormous behind the scenes effort into training our team and working in the medical environment. We have profound respect for the work we witness and the INDIA LEGAL January 31, 2015

MEDIA/ the us /reality tv / ethics

Some hospital systems, including the New York City Health & Hospitals Corp., were approached about participating in NY Med but they declined. dispensation that allows us to do so.” Some hospital systems—including the New York City Health & Hospitals Corp., which runs the city’s 11 public hospitals—were approached about participating in NY Med but declined. “It was just going to be very difficult to provide all the access that they wanted,” said a hospital corporation spokeswoman, Ana Marengo. “It sounded interesting but it was just too much for us to accommodate really.” The Mayo Clinic, based in Rochester, Minnesota, regularly works with news crews to highlight medical care and patient stories. But it has insisted on asking patients for permission before they meet the film crews and has turned down requests to film first and seek permission later. “Clearly I can’t comment on whatever happened in some other hospital,” said Ginger Plumbo, a Mayo spokeswoman. “I can tell you here, we would not be comfortable with a situation where you’re filming patients’ situations and then trying to get permission after the fact.” Mr Chanko’s family had already settled a lawsuit against the private sanitation company whose truck backed over him by the time his widow saw the episode of NY Med featuring his case. A couple of hours after watching her husband die on TV, Mrs Chanko called her daughter-in-law Barbara, a health care ethicist at the US Department of Veterans Affairs in Man-hattan. Barbara Chanko remembers standing up in her office and saying: “If this happened, it’s got to be stopped.” When she watched the episode, she was shocked. “We protect patient privacy in everything we do,” she said. “I feel very betrayed by that medical staff for what they did.” The Chankos’ son Eric Chanko, a physician who works at a hospital in Ithaca, New York, said he, too, struggled to reconcile what he saw on the air with his own work. “They basically did everything that you’re taught in medical

January 31, 2015

school not to do,” he said. In the aftermath of the broadcast, a lawyer for New-York-Presbyterian tried to assure the family that no one could identify them from what was shown on TV. “Please be assured that your father’s and your family members’ images, likeness and other potentially identifying information were completely obscured in the episode,” the hospital’s associate general counsel, Caro-line S Fox, wrote in an emailed response to Kenneth Chanko’s complaint. Yet a few weeks later, Mrs Chanko said she received a call from a woman who used to work as a pet sitter for her and her husband. “She said to me: ‘Do you watch NY Med?’ She said: ‘That was Mark, wasn’t it?’ She recognized him.” Officials with the state’s health department concluded that NewYork-Presbyterian had violated Mr Chanko’s rights and, indeed, its own privacy policy. “The patient was unaware and uninformed that he was being filmed and viewed by a camera crew while receiving medical treatment thus his privacy in receiving medical treatment was not ensured,” inspectors wrote in a citation released under New York’s Freedom of Information Law. New York regulators did not impose any sanctions on the hospital. Federal health officials are still reviewing whether NewYork-Presbyterian was obliged to get permission from Mr Chanko or his family before allowing a TV crew to film him.

ipaa, more formally the Health Insurance Portability and Accountability Act, does not give patients a right to sue if doctors and hospitals violate their privacy. Neither does New York State’s Patients’ Bill of Rights, courts have ruled. In court filings, lawyers for the hospital and Dr Schubl made the argument that the law prohibits medical professionals from sharing information about a patient only after he has been examined or treated. Because the NY Med film crew had shot video during Mr Chanko’s treatment, they claimed, it was legal. In November, an appellate panel issued a unanimous order dismissing the case. The conduct “was not so extreme and outrageous” to justify a claim of intentional infliction of emotional distress, the judges wrote. The

doctor and hospital, the judges added, did not breach their duty to avoid disclosing personal information “since no such information” was disclosed. Privacy experts say the legal arguments made by ABC and the hospital have troubling implications for patients seeking medical care. “Taken to its logical conclusion, what they’re saying is you can invite anyone in, and unless the patient objects at that very moment, there’s no violation of the patient’s privacy,” said Joy Pritts, an expert in state health privacy laws who until recently was the chief privacy officer at the Office of the National Coordinator for Health Information

Technology. “That’s crazy.” The family is working on an appeal. “If this ever got in front of a jury, I can’t imagine a jury not thinking a wrong was done to my father and to us,” Kenneth Chanko said. “Morally and ethically it’s not right, and I would also think that legally it can’t possibly be right.” Asked what she would do if the case fails, Mrs Chanko said the family would not stop pushing for redress. “If there’s no applicable law, there most certainly should be. I’m willing to just pursue it all the way. Why shouldn’t there be a law against this kind of thing?” IL

THE STRUGGLE CONTINUES (L-R) Eric, Anita, Barbara and Kenneth Chanko, who say they will not leave any stone unturned to get justice in the case

—Courtesy ProPublica INDIA LEGAL January 31, 2015

BOOKS/ the dramatic decade: the indira gandhi years

Emergency an “avoidable event” this is what president pranab mukherjee’s book says about one of the most momentous events in india. he looks at various happenings of the seventies, but doesn’t reveal much By Rashme Sehgal

F any politician needs to learn a tip or two from Pranab Mukherjee’s book, The Dramatic Decade: The Indira Gandhi Years, it is none other than her grandson, Rahul Gandhi, who can do with her spunk. Mukherjee’s book scores in providing details about the reasons that led up to Indira Gandhi’s declaration of Emergency in June 1975, her sudden decision to lift it by announcing general elections on January 18, 1977, and the Congress party’s functioning, both after facing the stunning defeat in 1977 and then, returning to power in 1980. FIGHTER TO THE CORE Not only was the Congress party trounced in the elections, but both Indira and Sanjay Gandhi lost their seats in Rae Bareli and Amethi respectively. Several leading Congressmen, including ministers such as Jagjivan Ram and YB Chavan abandoned the party. In the early euphoria of the Janata Party’s victory, it seemed as though Indira Gandhi would be forced into political exile. But she did not lose heart. A fighter to the core, she began a mass people-to-people contact program, touring the length and breadth of the country, even going to the extent of meeting Jaiprakash Narayan in Patna. It was JP’s exhortation from the grounds of Ramlila Maidan in Delhi on June 25, 1975, to both the army and the police to disobey “illegal” orders and to citizens to take part in

January 31, 2015

a massive civil disobedience program that has been cited as one of the key factors that led Indira to impose Emergency. And yet, she was large-hearted enough to go back to both JP and Vinoba Bhave to seek their blessings. She met huge crowds wherever she went. The culmination of this campaigning was her visit to the site of the Belchi massacre, where 11 Harijans had been burnt to death by rich farmers belonging to the Kurmi community. Mukherjee describes this visit at great length. Belchi village did not have road connectivity. The jeep carrying Indira got stuck in the mud and a tractor was brought to pull it out. But that too got stuck. So determined was Indira to go forward that she pulled her sari above the ankle to march ahead. However, an elephant was requisitioned for her. This spunk remained with her throughout her life. If Rahul Gandhi had shown the same fighting spirit, the Congress would not have been in the doldrums it is in today. Mukherjee’s book also documents various happenings during the Seventies—East Pakistan’s struggle for independence in 1971, the oil crisis of 1973 and how it adversely impacted the Indian economy, coalition politics from 1977 onwards…. CBI SUMMONS Mukherjee’s description of Indira Gandhi’s arrest by the CBI makes for interesting reading, especially as there were no cell phones or round-the-clock television to heighten the drama. On October 3, 1977, Mukherjee got a tip-off from a UNI correspondent that Indira, along with KD Malaviya, HR Gokhale, PC Sethi and DP Chattopadhyaya, had been arrested. He too, he was informed, was on the hit list. Mukherjee writes: “I requested a friend (who was visiting) to go and fetch my wife, Geeta, who had gone out to watch a movie. And then I waited on the lawn with my pipe, tobacco, matchbox and a small suitcase. I decided I would not apply for bail and prepared myself for an indefinite stay in jail. Geeta came back and together we waited for the police but nobody came. After about 11pm, I told Geeta that instead of waiting for the police, we could go to Indira Gandhi’s residence and find out what was happening there. We left a note with our servant

Mukherjee admits Indira had a finger on the pulse of the nation, which he didn’t have, which is why he took a disastrous decision of contesting from Bolpur in West Bengal. in case the police came looking for us—that we would be at 12 Willingdon Crescent.” Indira Gandhi was able to use the blundering manner of her arrest to her advantage. Attempts by Janata Party leaders to isolate her also backfired, as did attempts by some Congress leaders, who hoped to take over control of the party. Mukherjee dismisses rumors that postEmergency, Indira continued to be surrounded by a caucus of leaders who had been active during the Emergency. The author writers: “The contention did not contain a grain of truth…. Although Zail Singh, Dr Jagannath Mishra, Devraj Urs and I continued to be summoned by various commissions, prominent leaders and activists during the Emergency like Om Mehta, Bansi Lal, VC Shukla and Rukhsana Sultana were nowhere near the group.” Another interesting fact is that home minister K Brahmananda Reddy signed the letter, which led to the imposition of Emergency, on a plain sheet of paper and not a letterhead of his ministry. The book also produces the letter written by Indira Gandhi to President Fakhruddin Ali Ahmed on the night of June 25, 1975, recom-

THE YEARS THAT CHANGED INDIA (Facing page) Indira Gandhi with son Sanjay, on whom she depended a great deal for political advice (Above) Indira with Pranab Mukherjee, who stood by the party even after the 1977 rout (Next page) Jaiprakash Narayan’s rally on June 25, 1975, that triggered the Emergency

INDIA LEGAL December 31, 2015

BOOKS/ the dramatic decade: the indira gandhi years

mending imposition of Emergency, as there was a “danger to the security of India being threatened by internal disturbance”. However, the author does not reveal much. The book alludes to the functioning of the Shah Commission and the manner it went about gathering evidence, but that is all. Pranab also does not criticize the Emergency, though he admits that as part of the Union Cabinet, he failed to understand its far-reaching impact. All he says is that “it was perhaps an avoidable event” for which both the Congress and Indira had to pay a heavy price.

The Dramatic Decade: The Indira Gandhi Years By Pranab Mukherjee Published by Rupa Pages: 321; `595

January 31, 2015

PRANAB’S HUMANITY Needless to say, Mukherjee remained a Gandhi loyalist through the turbulent years. He attributes this to his own upbringing. His father, Kamada Kinkar Mukherjee, was a Congress loyalist all his life. In 1978, when the Congress split, his father told him: “I hope you will not do anything that will make me ashamed of you. It is when you stand by a person in his or her hour of crisis that you reveal your own humanity. Don’t do anything that will dishonor your forefather’s memory.’ His meaning was clear, and I didn’t, then or later, waver from my loyalty.” Indira Gandhi, he writes, had a finger on

the pulse of the nation, which obviously, he didn’t have. And that is why he insisted on contesting the Bolpur constituency in West Bengal against her best advice. The result? A resounding defeat by a margin of 68,629 votes. When a demoralized Pranab was told that Indira wanted to meet him, he drove to 12 Willingdon Crescent. “It would not be an understatement to say that she was unhappy about my insistence to contest the election…. It was about 9 pm and Indira Gandhi was sitting in the dining room at one end of the long dining table. She had a bad cold and was soaking her feet in a tub of warm water. Standing at the other end of the dining table, I received a vociferous dressing-down for what seemed to be an interminable span of time. I was rebuked for taking the ill-advised decision of contesting from Bolpur against her advice, and was told that such imprudent decisions nullified all my other hard work. Having recognized my folly, I could do nothing till she calmed down. She then sent me home with a basket of fruit.” The Dramatic Decade is the first of a trilogy. The subsequent books are expected to cover the periods between 1980-98 and 1998-2012. We hope he will write about his colorful political career with more candor. IL

IS THAT LEGAL?

Irritant speed breakers We see many random speed breakers, often constructed at the behest of locals and without any official sanction. What action can be taken against them? SPEED breakers can only be constructed outside hospitals, educational institutions, temples, schools, in market places and other strategic locations for commutersâ&#x20AC;&#x2122; safety. The location is authorized by the traffic police or on suggestions received from the public to the municipal corporation of that city. The construction is done according to suggestions and guidelines given by the Indian Road Congress. However, in case speed breakers come up in an unauthorized manner, a complaint can be lodged with the police officer of the concerned area, and these can be removed by an order of the district magistrate or sub-divisional magistrate or anyone empowered. In case the person responsible for unauthorized breaker raises an objection, he can even be issued a showcause notice, and slapped a penalty according to Section 188 of the IPC. If his intransigence is a threat to human life, he can be jailed extending up to six months or imposed a fine extending to `1000, or both. Illustrations: UdayShankar

Unofficially married If a couple gets married but does not register it, what could be the legal implications? ALTHOUGH the bill on Marriage Laws (Amendment) Bill, 2010, is pending in the Lok Sabha, it was passed by the Rajya Sabha in 2013 to make registration of marriage mandatory for all the citizens of the country. Registration of marriage will prevent harassment of women in divorce cases, will be helpful in maintenance cases, protect the rights of children born from

the wedlock and provide a legitimate proof for custody of children and in succession rights. Moreover, registration will also make it easier for the husband to get a visa for his wife and avail tax benefit in foreign countries. The Delhi government has made marriage registration compulsory, and if a marriage is not registered within the prescribed period, a fine of `1,000 shall be imposed on such a person when he opts for registering his marriage.

Welcome break for prisoners What is the difference between a furlough and parole? Can other prisoners like Sanjay Dutt aspire for repeated furloughs? PAROLE is a legal sanction that allows a convict to leave the prison for a short duration on the condition that he behaves appropriately during the period of release and reports back to the prison on termination of the parole period. A prisoner may be released on parole either by the permission of the court or by an order of the district magistrate in certain emergency situations, like ill-health, death of a family member, attending important functions, such as marriage of son,

January 31, 2015

daughter, brother or sister, etc. On the other hand, furlough means the system of releasing prisoners in jail on a leave in accordance with the rules of the prison. A prisoner sentenced to five years or more or rigorous imprisonment, who has served three years, excluding remission, can be released on furlough. A prisoner generally is entitled to seven weeks of furlough in a year. However, state governments have their own set of rules in this regard. The conduct of a prisoner is the most important criteria for a furlough. Any prisoner can be granted repeated furloughs like Sanjay Dutt, provided he gets sanction from jail authorities on the basis of good conduct.

A case for adoption If a couple finds a homeless child on the street, can they bring the child home and adopt him? ADOPTION is permitted only through a legal route and not directly. With the enactment of the Juvenile Justice Act, 2000, and as per the guidelines issued by the Central Adoptions Resource Agency (CARA), every person is free to adopt an orphan child and he shall have to follow the procedures laid down under the aforesaid act. As per the guidelines governing the adoption of children issued by Ministry of Women and Child Development, Section 7 of the aforesaid guidelines specifically details the “Procedure for adoption”. Further, Section 17 provides for agencies which are involved in in-country adoption: a) The court of competent jurisdiction, which can pass order for adoption; b) Central Adoption Resource Authority (CARA); c) State Adoption Resource Authority (SARA) or Adoption Coordinating Agency (ACA); and d) specialised adoption agency (SAA). Section 23 lays down that the specialized adoption agency shall file a petition in the competent court of jurisdiction for obtaining the necessary adoption orders .

Mandate for arrests If an army man finds a person indulging in antinational activities, can he act on his own or does he have to wait for command from his seniors? SECTION 43 of the CrPC allows a private person to arrest a person who has committed a nonbailable and cognizable offence. He may hand over the person to a police officer or take him to the nearest police station. Apart from this, the Armed Forces (Special Powers) Act, 1958, commonly referred to as AFSPA, also empowers an army officer to act on his own in certain “disturbed” areas. According to AFSPA, he can fire or use other kinds of force even if it causes death, against the person who

is acting against the law in the “disturbed” area. He can also arrest without a warrant anyone who has committed a cognizable offense or is reasonably suspected of having done so, and may use force for the arrest. He can further stop and search any vehicle or vessel reasonably suspected to be carrying such a person or weapons. Any person arrested and taken into custody shall be handed over to the officer-in-charge of the nearest police station with a report of the circumstances leading to the arrest.

Unusual wedlock

Overzealous celebrations

What is the procedure for two people from different religions wanting to get married in a civil court without the consent of their parents? When will they get their marriage certificate? THERE is a provision according to the Special Marriage Act, 1954, wherein two people from different religions can enter into a wedlock. Both the parties need to provide notice that they want to solemnize the marriage to the marriage registration officer under whose jurisdiction either of the party resides. The said office thereafter issues a certificate of marriage to both parties.

Marriage processions taken out on roads restrict smooth movement of vehicles and create a nuisance due to the playing of loud music. Can this be stopped legally? ALTHOUGH marriage processions accompanied by loud music and dancing are not permitted under law, generally nobody files a complaint in such cases. This, despite the inconvenience faced. But in case a complaint is made with the authorities, action can be taken against the baraatis under Section 290 of IPC for creating a nuisance and they can be fined up to `200.

INDIA LEGAL January 31, 2015

INTERNATIONAL BRIEFS

Iranian law on hijab delayed IRAN’S GUARDIAN Council, the country’s 12-member legislative body, has rejected a new draft law prepared by the parliament, which was aimed at more stringent enforcement of hijab. If the draft law had been approved, the Iranian police and the volunteer militias (Basij) would have got greater powers to enforce women’s compulsory wearing of the hijab. The council, finding several flaws in the draft, has sent it back to the Iranian parliament for reworking.

Kenya softens draconian law THE HIGH Court of Kenya has amended a draconian security law enacted just a few weeks ago, which had come in for heavy criticism. The new law severely curtailed civil liberties on the grounds that the country has come under the threat of militants, who recently struck a busy mall in its capital. Opposition MPs had expressed fear that in the name of fighting terrorism the new law would have turned the country into a police state. But for now, the court has blocked eight clauses till further hearings.

Drunken drivers, beware DRIVERS IN Bangkok will not be able to avoid breath test, following a new law. The police now have the absolute power to stop any car, which, they think, is being driven by a drunken driver. If the driver refuses to take the breath test, he or she will be assumed to be drunk, and will have to face the punishment—jail and a heavy fine.

Anti-harassment rules at Harvard

Pak hangs two terrorists PAKISTAN HANGED two convicts, Ghulam Shabbir and Ahmed Ali, members of the banned Lashkar-eJhangvi. They had been sentenced to death by an anti-terrorism court in 2002. With this, Pakistan has now executed nine terrorists since the deadly Taliban attack on a Peshawar school in December 2014. It has also lifted its moratorium on death penalty in terror cases.

January 31, 2015

ACCORDING TO ABC News, Harvard Law School has agreed to revise its sexual harassment and assault policies and review sexual harassment complaints dating to the academic year 2012-13. US education officials had found the school in violation of federal law (Title IX requirements) in two sexual assault complaints. The school will also notify students and employees about their right to file complaints and how to do so; pursue the criminal process in sexual violence cases; and submit sexual harassment and sexual violence complaints to the US Education Department’s Office for Civil Rights.

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

1. Internet slang PDQ. A: Please don’t quote B: Pretty damned quick C: Please deliver quickly D: Pretty difficult question

8. Evanescent.

2. Dutch wife. A: Prostitute B: Hubby is drunkard C: Older than hubby D: Long pillow

9. Second wind.

3. Boo-ya! A: Cry of triumph B: Cry of pain C: Cry for help D: Toddler’s cries

10. Fed up to the … .

4. Who is a Cantabrigian? A: Citizen of Cambridge B: Citizen of Canterbury C: UK dog lover D: Cantankerous wife 5. Bawdy house. A. Gymnasium B. Brothel C. Hermitage D. Ramshackle home 6. Aladdin’s cave. A: Place of riches B: Very old cave C: Spacious home D: Den of robbers 7. Chinese fire drill. A: Morning exercise B: Breakfast of noodles

C: Chaotic situation D: Mass exodus

A: Must for women B: Profitable C: Dim-witted D: Momentary

A: Second wife B: New energy C: Afterthought D: Used vehicle

A: bone B: teeth C: fingers D: death 11. To hit the skids is to …. A: decline B: succeed C: thrash D: elope

A: Bad person B: Very sick man C: Discarded thing D: Dropped player 15. Flea-bite. A: Painful bite B: Small sum C: Cheap price D: Kiss 16. Loafer. A: Don Juan B: Wastrel C: Adonis D: None of the above 17. Parthian shot. A: Perfect shot B: Random shot C: Remark at parting D: Painless injection 18. Sheela is svelte. A: Coy B: Attractive C: Slender D: Flirt

12. Forty winks. A: Long wait B: Short sleep C: Short drama D: Eye disorder

19. On the wagon. A: Quickly B: Not drinking alcohol C: Travelling D: Very busy

13. Tommy-rot. A: Mischievous kid B: Darling pal C: Commoner D: Nonsense 14. Rotten apple.

20. A rolling stone …… no moss. A: gets B: takes C: kills D: gathers

ANSWERS

1. Pretty Damned Quick 2. Long pillow 3. Cry of triumph 4. Citizen of Cambridge 5. Brothel 6. Place of riches 7. Chaotic situation 8. Momentary 9. New energy 10. teeth 11. decline 12. Short sleep 13. Nonsense 14 .Bad person 15. Small sum 16. Wastrel 17. Remark at parting 18. Slender 19. Not drinking alcohol 20. gathers

Y L D R WO ISE

SCORES

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

INDIA LEGAL January 31, 2015

PEOPLE / photography as art

BRIDGE OVER MUDDY WATERS A villager carrying a child uses a makeshift bamboo bridge to cross a flooded area in Jorhat, Assam

WHITEOUT People walk through snow next to Lake Ammersee in Diessen, southern Germany Photos: UNI

ORANGE APPEAL Tourists look on as the sun sets by the island of Koh Tao

GLOW IN THE DARK A super moon rises in the sky near the Eiffel Tower, as seen from Suresnes, western Paris. This dazzling astronomical event occurs when the moon is closest to the earth in its orbit, making it appear larger and brighter than usual

Compiled by Kh Manglembi Devi

January 31, 2015

RNI No. UPENG/2007/25763

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