india legal 31 july 2015

SINGLE MOTHERS Supreme Court to the rescue

‘‘The verdict is a breath of fresh air for women’’ - Brinda Karat

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NDIA EGAL I L July 31, 2015

Atal Bihari Vajpayee

Farooq Abdullah

www.indialegalonline.com `100

DULAT UNPLUGGED The former intelligence chief pens a startling new chapter about intrigue and deception in Kashmir’s politics 24

Omar Farooq

AS Dulat

VYAPAM HORROR: More troubles in Chouhan’s kitbag 30

BIKRAM VOHRA: Jungle law in India 42

IIMs AND FTII: Mounting rebellion 48

LETTER FROM THE EDITOR

INDERJIT BADHWAR

KASHMIR: NOT AN OFFICIAL SECRET O self-respecting journalist should want Menon brings out in his interview—that the to become a part of the me-too-brigade: Kashmir problem, India’s number one national the herd instinct that propels so many of security headache—still festers because of bungus to jump on to the pack-journalism ling and sins of commissions and omissions that bandwagon of a breaking story and play lollypop-like into the ever-ready-to-stumpclaim I was there the “fastest with the mostest”. you Pakistan wicket-keeper’s hands.

Alas, there are moments in history when the comI’m happy Dulat has written this book because pulsions of analyzing or explaining news moments Kashmir was very much a part of my life in the late force you to bring yourself into the picture. That in eighties until the mid-nineties, after which, for a itself is not such a bad thing provided your ego or period, I had to avoid going to the Valley because I self-serving back-slapping does was on a militant hit list for taknot obscure or obliterate the ing a strong position against The Kashmiri is truth or at least an approximaterrorist violence in my articles taught as a child that for India Today. I write this tion of it. only to demonstrate that Dulat I use the word “approximahe is the subject of is correct in gauging the volatiltion” deliberately because the “Dilli Durbar”. ity of the Kashmiri issue— nobody knows entirely how history evolves—whether it is a Anybody who makes prone to sudden, mercurial shifts—and the changeability of combination of mythology, faca pact with “Dilli” is the mindset of ordinary tology, historiography, imaginabetraying Kashmir to Kashmiris and their leaders. tion, vendetta, vindication or Briefly, I covered Kashmir pure fiction. Or none of the “India”. He feels the from 1986 to 1991, and then above. Then what is it? same about Pakistan. returned to cover the 1996 elecPerhaps we will never know tion which has been described the gestalt of it. But we can

by Dulat as a political “master-stroke.” I saw the strive to know at least some of the components Congress-NC alliance between Rajiv Gandhi and through books, articles, and transcripts of speechFarooq Abdullah emerge in 1986 and then the es in order to come to a deeper understanding of fatally flawed and rigged February 1987 election in issues that need resolution, based on politico-legal, which the wildly popular, youth-oriented MUF social and psychological illumination in order to party was trounced and moderates like Abdul ward off future conflict.

Ghani Lone of the People’s Conference were All of this lands me bang into the middle of the hounded out of Handwara by NC goons. I wrote me-too syndrome. This is in connection with the about that election: “Congress may have won an cover story based on the explosive book by India’s election but India has lost Kashmir.” top operative in Kashmir in the 1990s, former The consequent backlash, within the next couintelligence chief AS Dulat, which gently reminds ple of years was the emergence of the gun, us—as reviewer Ajith Pillai writes, and Ramesh

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LETTER FROM THE EDITOR

UNVEILING THE TRUTH (From left) These three books tell the real story about Kashmir

Dulat writes about the game played by Kashmiris and India, and fills a yawning gap about what transpired in the 1990s in the spy-versus-spy HUMINT game. street battles, political assassinations, repression, mass marches, bombings, disappearances. India had played into Pakistan’s hands. Since the late 1940s, after Indian troops helped Kashmir trounce and repel the Pakistani invaders, who had tried to take Kashmir by force, Pakistan had not succeeded in training and sending armed militants to try and destabilize Kashmir on the ideological premise of the two-nation theory that Muslims are a separate nation and Pakistan is their natural homeland.

It is remarkable that while Pakistan had been able to arm Khalistani militants in Punjab, it had failed to achieve the same result in Muslim-majority Kashmir.

This is largely because the Kashmiris are fiercely independent. After all, in 1948, most of the innocents butchered and raped in Anantnag and Baramulla by the Pakistani invaders were themselves Muslims. Historically, Kashmiris had fought the Afghans, Mughals, Dogra rulers, and Maharaja Ranjit Singh. Their concept of Kashmiriyat was— and is—based on their historical fight against, and then submission to, outside rulers who treated them with disdain.

That is why the concept of azaadi is so deeply ingrained in the Kashmiri psyche.

The various legal resolutions on the Line of

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July 31, 2015

Control, the Ceasefire, UN observers, plebiscite, passed in the United Nations as well as Article 370, while kept alive as debating points in Kashmir, do not really impact the internal reality of the Kashmiri psyche. The Kashmiri is taught as a child that he is the subject of the “Dilli Durbar” and anybody who makes a pact with “Dilli” is betraying Kashmir to “India.” He feels the same about Pakistan.

But he knows the real world. India, for the sake of its own ideological secular identity and unity will never cede Kashmir. The Kashmiri knows this.

He may wave the Indian flag at times but, always, with two fingers crossed behind his back. India has learned to control Kashmir through a combination of politics, democracy whenever possible, force when necessary, undercover operations, money, bribes, sting operations, chicanery, jingoism, and cajoling puppet leaders. The Kashmiris have been smart enough not to escalate violence to such an extent that it would become a full-fledged armed rebellion inviting fearsome retribution. Both know where to draw the line. Both sides play the game.

Kashmiris are rewarded handsomely by India as well as from across the border. In their politics of blackmail—all Kashmiri parties participate in this—they use either the Pakistani or the Indian flag, whichever comes handy.

Indian politicians keep Kashmir alive because it is a handy tool to whip up nationalist fervor.

Pakistan does the same because without claiming Kashmir on the grounds of its Muslim majority, the underpinning of their ideological identity as an Islamic state would collapse.

And so, the game goes on. This is the game that Dulat writes about so engagingly, and in the process, fills a yawning gap about what transpired in the 1990s in the spy-versus-spy HUMINT game—far more effective than warfare or “encounter battles” in creating and weaning leaders to the Indian side. His account of the Shabir Shah game of nerves is brilliantly reconstructed, though I wish he would talk a little more about what we journalists called “Dulat’s Boys” or the “friendly militants” like Kuka Parrey who gave Pakistani operatives the fright of their lives.

The Kashmir dilemma is beautifully summed up by MJ Akbar in Kashmir: Behind the Vale: “Kashmir lies at the edge of India’s borders and at the heart of India’s consciousness. It is not geography that is the issue; Kashmir also guards the frontiers of ideology. If there was a glow of hope in the deepening shadows of a bitter partition, then it was Kashmir, whose people consciously rejected the false patriotism of fundamentalism and made common cause with secular India instead of theocratic Pakistan. Kashmir was, as Sheikh Abdullah said and Jawaharlal Nehru believed, a stabilizing force for India.”

According to the book’s summary, Kashmiriyat is the identity and culture that has blossomed within the ring of mountains for thousands of years. Akbar records Kashmir’s struggle in the century to first free itself from feudal oppression and then enter the world of modern India in 1947.

“Placing the mistakes and triumphs of those early, formative years in the perspective of history, the author goes on to explain how the 1980s have opened the way for Kashmir’s hitherto marginalized secessionists. Both victory and defeat have their lessons; to forget either is to destabilize the future. Kashmir and the mother country are inextricably linked. India cannot afford to be defeated in her Kashmir.”

Where Akbar left off, Dulat pitches in to take the narrative farther. But there are other important books that fit beautifully into the puzzle.

Governor Jagmohan’s book My Frozen Turbulence is a scathing indictment of Delhi’s abysmal misunderstanding of the Kashmir issue and of the Kashmiri psyche and the policy of benign neglect alternating with gratuitous political gamesmanship and interference that farther fueled militancy and violence in Kashmir just when successful doses of good governance under governor’s rule had helped to pacify much of the Valley.

Brigadier Amar Cheema’s The Crimson Chinar is a brilliant perspective on how India keeps blundering in its approach to Kashmir. He relies heavily on BK Nehru, former governor, Kashmir and Indira Gandhi’s cousin, in pinpointing the roots of discontent, starting with the arrest of Sheikh Abdullah, the “Lion of Kashmir,” in 1953, which virtually rendered the state’s constituent assembly a puppet grouping followed by a series of rigged or uncontested elections until 1976 which proved Indian claims of democracy in Kashmir a farce.

But Cheema is correct in pointing out that the Sheikh had himself become a corrupt and authoritarian leader and had completely rigged the election to the constituent assembly itself. History repeated itself in the 1987 election, largely fought on the corruption issue. The Farooq Abdullah government was widely perceived as venal to the core and the Sheikh Abdullah dynasty was as unpopular as the Shah of Iran before his downfall.

For Rajiv Gandhi to have allied with this corrupt party and then look away as the election was openly rigged and brazenly manipulated was the last straw. And both Kashmir and India are still paying the price. Prime Minister Narendra Modi learns quickly from history and tends to avoid the pitfalls of his predecessors. So far his Kashmir initiatives have been sensible. Each Indian PM writes his own chapter to the Kashmir story. One can only hope that Modi’s chapter will be fresh and someone in his administration will have learned the lessons spelt out in the books written by Dulat, IL Akbar, BK Nehru, Jagmohan, and Cheema.

COMPLEX ISSUE AS Dulat is correct in gauging the volatility of the Kashmiri issue, prone to sudden, mercurial shifts

editor@indialegalonline.com INDIA LEGAL July 31, 2015

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JULY 31, 2015

VOLUME. VIII

ISSUE. 22

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Business Editor Shantanu Guha Ray Political Editor Bhavdeep Kang Associate Editor Meha Mathur Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari Vice-President (Ad-Sales) Vivek Mittal-09810265619 For advertising & subscription queries sales@indialegalonline.com

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July 31, 2015

LEAD

Sleuth’s revelations Former RAW chief AS Dulat’s book, Kashmir: The Vajpayee Years, provides insights into the government’s handling of militancy. Yet, it raises questions about revealing state secrets, writes AJITH PILLAI. Also, an exclusive interview with Dulat by RAMESH MENON SUPREME COURT

Single and happy In recognizing the rights of a single mother in a recent judgment, the apex court has acknowledged changing family dynamics in Indian society, writes BHAVDEEP KANG. Also, read BRINDA KARAT and ROSHNI SETH PROBE

Mysterious deaths As the toll mounts in the Vyapam scam, it could singe Madhya Pradesh Chief Minister Shivraj Singh Chouhan and jeopardize his chair.

RAKESH DIXIT reports

22 10 30

ACTS & BILLS

Policy peril

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The new amendment in insurance laws will force insurers to be more vigilant in detecting fraudulent claims, writes SHANTANU GUHA RAY

No room for compromise The Madras High Court revokes its judgment on rape mediation after castigation by the Supreme Court, writes RAMESH MENON GLOBAL TRENDS

SPOTLIGHT

Mob meanness

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Various acts of vigilantism in India show that mob fury and primitive justice have become the norm in India.

BIKRAM VOHRA analyzes the psyche behind it EDUCATION

None of your business

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The HRD ministry seeks to take control of the prestigious IIMs. AJITH PILLAI asks if excellence will be compromised if government interference increases.

Theater of the absurd B-grade actor Gajendra Chauhan’s refusal to step down from chairmanship of the FTII could harm the institute immensely. PRACHI BARI reports .

Rainbow revolution

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The recent US judgment on same sex marriage could be a harbinger of similar shift in other countries, including India. A report by ROSHNI SETH

The Aegean impact Why did European leaders misjudge the resilience and pride of Greeks and assume they would buckle under threats? GEORGE FRIEDMAN analyzes the referendum.

TERRORISM

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Threat at the doorstep

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The Islamic State’s advances in Afghanistan will have a definite impact on South Asian security. How prepared are we? COL R HARIHARAN assesses.

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HEALTH

RO’s reverses

LEGAL EYE

Governor’s role A recent order of the Allahabad High Court has created a flutter about the extent of a governor’s discretionary powers, writes VINAY RAI

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REGULARS

A petition against reverse osmosis technology in the NGT raises issues of water wastage and loss of minerals in this process. DINESH SHARMA describes the pitfalls of RO. Edit................................................................................3 Ringside........................................................................8 Quote-Unquote.............................................................9 Supreme Court............................................................16 National Briefs............................................................18 Courts......................................................................... 20 International Briefs.......................................................65 Campus Update........................................................ 81 People......................................................................... 82

Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA

INDIA LEGAL July 31, 2015

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Aruna

VERDICT “Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. For even the very wise cannot see all ends.”

—JRR Tolkien, The Fellowship of the Ring 8

July 31, 2015

QUOTE-UNQUOTE

“I feel political credibility is essential. People vote for us and we have to live up to their trust.”

“Mrs Gandhi received numerous messages and greetings from people across the country and abroad, asking why she didn’t declare the Emergency much earlier.”

—BJP leader LK Advani, on his resignation from the Lok Sabha in 1996, in an interview to the ABP group

—RK Dhawan, Indira Gandhi’s closest aide, on the Emergency, in The Indian Express

“Nothing on this scale of interference has happened before. Every institution where the government has a formal role is being converted into where the government has a substantive role.”

—Nobel laureate Amartya Sen terming his stepping down from chancellorship of the Nalanda University as an 'ouster', in The Times of India

“Maharana Pratap is the source of inspiration, not Akbar.”

—Rajasthan Governor Kalyan Singh, questioning the suffix ‘great’ attached to Akbar, The Economic Times

“Does any MP understand what this NJAC is all about?”

—MP and senior advocate Ram Jethmalani reacting to discussion in Supreme Court that NJAC received overwhelming support in parliament and states

“I don’t think it is proper to take such a decision. Whoever has violated any law, the legal course must, and will follow.”

—Former law minister and Karnataka Governor HR Bhardwaj, on indications that the Congress may disrupt the monsoon session on the Lalitgate issue, in The Indian Express

“English bolne se gyan nahi hota (one doesn’t gain knowledge just by speaking in English). One should speak English when needed.”

—Home Minister Rajnath Singh, while addressing students in Noida, The Times of India

“Attending business chambers’ functions is a complete wastage of time because when it comes to asking them to do something for the country they do very little than talking.”

—Union Women and Child Development Minister Maneka Gandhi, referring to ASSOCHAM, FICCI and CII at an ASSOCHAM seminar in New Delhi

INDIA LEGAL July 31, 2015

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SUPREME COURT/ Single Mother Judgment

Natural Injustice Bizarre notions stopped single mothers from getting their due for too long, until the Supreme Court intervened

By Bhavdeep Kang

F

ATHERHOOD is a wellregarded theory, but motherhood is a fact.” Indian jurisprudence has yet to take satirist PJ O’Rourke’s formulation to heart. What should have been a woman’s natural and inalienable right—guardianship of her children—must be wrested from courts of law, inch by inch.

For a single mother to apply for a passport, open a fixed deposit or take out an insurance policy in the name of her child—acts a single father can perform without a second thought—has taken decades of struggle. Even so, filmmaker and unwed-single-mother-bychoice Kavita Lankesh must secure a “noobjection certificate” from her daughter’s biological father before she can get the child’s passport renewed! One can only imagine how Neena Gupta, pioneering single

FACING HURDLES Film-maker Kavita Lankesh had to secure an NOC from her daughter’s biological father, before she could get her daughter’s passport renewed

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July 31, 2015

mother to her daughter by Vivian Richards, managed way back in 1989.

It took another ten years for the Supreme Court to recognize, in 1999 (Githa Hariharan vs Reserve Bank of India), that a mother had as much right as a father to be the “natural guardian” of a child. Ruling on the RBI’s refusal to accept her signature on an application to open relief bonds for her minor son, the SC said the parents had equal rights.

Last fortnight marked a new milestone in the single mother’s quest for recognition.

Justice Vikramajit Sen, generally regarded as progressive and modern in his outlook, observed: “In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus.” Setting aside a previous judgment of the Delhi High Court, the Supreme Court ruled that a single mother could be the sole legal guardian of her child, even without the explicit consent of the father.

The Delhi High Court had held that the

mother in question, a Christian, could not be recognized as sole guardian unless the father of the child was heard; she would have to provide his name and address, so that he could be served notice.

Was it a landmark judgment? Perhaps not. It did not go beyond the immediate prayer for recognition of an unwed mother’s right to sole guardianship of a minor, where she is demonstrably able to care for him and the father, being married, plays no role in the child’s life. The ruling makes it clear that if the absent biological father suddenly surfaces and challenges guardianship, he can do so. But it did recongize that in most legal systems, “priority, preference and pre-eminence is given to the mother over the father of the concerned child”.

Despite Githa Hariharan, horrors are still visited on single mothers. Lankesh recalls the ordeal of getting her daughter’s passport renewed. Standing in line, she was grilled by passport officials on her marital status or lack thereof. “They could not understand that I wasn’t divorced or abandoned and that my

child was not adopted. I simply didn’t want to be married to the father of my child,” she says.

Bizarrely, the Bombay High Court was informed last year by a government counsel that an unwed mother who wants a passport for her child must state whether or not it was conceived as a result of sexual assault! Clause 3.2(a) of the passport manual put out by the Ministry of External Affairs stated that an unwed mother was required to file an affidavit stating how she conceived and why she does not want the father’s name on the passport. Was it desertion, divorce or rape?

The case related to a woman’s prayer regarding the passport authority’s refusal to include her step-father or her mother’s name in her passport—despite the fact that the mother had custody. Earlier this year, the court directed the state government to amend the passport manual with reference to single mothers.

If that is a perplexing exercise, it’s only because the law has thus far bent over backwards to protect the rights of the father.

In smaller towns and rural India, the child of a single mother can still be denied admission in a municipal school because the father’s signature is missing from the application form.

AHEAD OF THE TIMES Actor Neena Gupta with her daughter Masaba

INDIA LEGAL July 31, 2015

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SUPREME COURT/ Single Mother Judgment

Journalist-turned-spiritual activist Madhav Kant Misra has filed a petition in SC, which if approved, may do away entirely with the father’s name on official documents.

MOVING TOWARDS PARITY (Above right) Justice Vikramjit Sen delivered the landmark SC judment in favor of single mothers (Below) Author Githa Hariharan faced RBI’s refusal to accept her signature on an application to open relief bonds for her minor son; the SC then ruled that both parents had equal rights

Never mind that fatherhood isn’t a fact, only theory! The rights of the biological father, the step-father, the divorced/separated father, the MIA (missing in action) father were given primacy. The July 6 judgment is important in that it acknowledges that an absentee father—no matter what the reason for his absence—is dispensable.

If journalist-turned-spiritual activist Madhav Kant Misra has his way, the next step will be doing away entirely with the father’s name on official documents. He has filed a petition in the Supreme Court, essentially saying that motherhood is a fact, that is, “a mother’s identity is certain and definite.”

For the mother not to be given primacy was “against the basic law of nature”. He questioned the practice of not identifying the child with the mother’s name. A SC bench headed by Chief Justice HL Dattu himself, has issued notice to all state governments, asking them to respond to the petition.

Some commentators have objected to the ruling on the grounds that it infringes on personal law and amounts to batting for a

uniform civil code. Former law minister Salman Khursheed does not agree. “The ruling is limited to the issues raised in the petition in question. It has nothing to do with personal law. However, when such cases come up in future, no judge is likely to set this aside and rule otherwise,” he says.

How do these judgments translate on the ground? In metropolitan Delhi, schools do not question a mother’s signature. The Central Board of Secondary Education allows students to use either the father or mother’s name. For a single mother to open a bank account in her minor child’s name is now a breeze. But in smaller towns and rural India, the child of a single mother can still be denied admission in a municipal school because the father’s signature is missing from the application form. And passport authorities still demand that “spouse name” be endorsed when applying for a minor’s passport. The Vikramjit Sen ruling will hopefully lead to that procedure being amended.

What is urgently needed now is a clearly stated official policy, making the mother not only a co-equal “natural guardian” of the child but fully capable of being the sole guardian. The pernicious Section 6 of the Hindu Minority and Guardianship Act—creatively interpreted by the SC in favour of gender justice—which grants natural guardianship of a Hindu minor to the father “and after him” the mother, must be turned on its head, once and for all. IL

SUPREME COURT/ Single Mother Judgment

“The verdict is a breath of fresh air for women shackled by patriarchal barriers”

O

N July 7, the Supreme Court had to ask India to grow up and accept the fact that a woman can take good care of a child all by herself. And then it pronounced a judgment on an unwed mother’s guardianship of a child born out of wedlock. While declaring this, Justice Vikramjit Sen also overturned a judgment by the Delhi High Court, which held a contrary opinion.

Across the country, the SC judgment has been hailed as a landmark one. It is a breath of fresh air for thousands of women who continue to live behind old, suffocating patriarchal barriers.

Being a single mother in India always touches the raw nerve, the woman is ridiculed and harassed. She is often the subject of pity and criti-

Communist Party of India (Marxist)’s BRINDA KARAT hails the landmark judgment delivered by the Supreme Court granting guardianship rights to unwed mothers. She spoke to SHANTANU GUHA RAY

cism. And to have a biological child out of wedlock, comes with loads of unwanted social stigma and shame.

I am happy that the court recognised the same.

I think what is very encouraging and interesting is the fact that the country’s apex court has understood the predicament of a woman who is unable to put the name of her son or daughter as nominee to her savings and insurance policies.

The social media, Facebook and Twitter, are full of such examples of women who have tremendous financial liquidity and need no men to groom their wards.

There are cases where daughters and sons have rued how their passports and college certificates have names of the father and not the mother. I think it’s cruel, inhuman. India’s convoluted system insisted that the child’s biological father must be identified in official documents. Why? No one had an answer.

The court has allowed women their right to privacy. What is ironical is the fact that the court observed a lot of women were choosing to bring up children alone. It means a change has already set into the Indian society. I think the Indian political system should now wake up and elaborate on the need for the Indian society to evolve, so that such fears don’t stalk women. Ideally, having a child should not lead to severe complications. Actually, it does not in many countries. Why should it happen in India?

The time has come to change ourselves. We—as a society—must evolve. Don’t we know a mother is best-suited to take care of a child born out of wedlock? The Supreme Court, brilliantly, identified “affection” or “mamata” as the reason why the mother should have the right to a child born out of wedlock.

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SUPREME COURT/ Single Mother Judgment

The times are a changin’ The SC judgment on single mothers reflects how society has evolved

By Roshni Seth

Amitava Sen

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July 31, 2015

T

HE Guardians and Wards Act, 1890, requires that a notice be given to the parents of a minor before a guardian is appointed; and a guardian cannot be appointed if the father is alive and is not unfit to be the guardian of the minor. In normal course, it is the father’s right to be involved in the child’s life and his welfare but what if he forsakes his responsibilities in the upbringing of his child? Should the law be applied in such a case?

On July 6, the Supreme Court delivered a path-breaking verdict in a case where a woman belonging to the Christian faith questioned the need to send notice to the father, saying any disclosure would create problems for both parents. She asserted her right not to disclose the parentage, arguing that in her case the father had nothing to do with the upbringing of her child.

The court held that, “where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility.”

The biological father who has abandoned his duties and responsibilities cannot be constituent to the well-being of the child. The archaic legal provisions such as seeking consent of an unwilling father for guardianship of the child only reflects backwardness and patriarchal notions prevalent in society.

As a result, unwed mothers and their children have faced social stigma through the ages.

The judgment rightfully establishes the parentage of a child with the

unwed mother and also recognizes that the unwed mother has the fundamental right to privacy. The unwed mother cannot be forced to publicly notify the name and particulars of the father of the child. The court has also directed that that the father’s name is not required in case an application is received from an unwed mother for issuance of birth certificate of her child.

The petitioner’s agony was compounded on account of her being a Christian. A Hindu unwed mother can get the child’s sole guardianship as Section 6(b) of the Hindu Minority and Guardianship Act, 1956, makes specific provisions with respect to natural guardians of illegitimate children, and gives primacy to the mother over the father.

Islamic law accords custody of illegitimate children to the mother and her relations.

The Supreme Court in this case did not go according to the tenets of Christian religion.

Instead it ruled for the rights of an unwed Christian mother. Last year the Supreme Court took a similar liberal stance when it allowed Muslim parents the right to legally adopt a child although Muslim personal law does not recognize adoption. The judgment held that Indians cutting across faiths have the right to adopt a child.

The courts in India have been continuously expanding equitable rights for all genders, including transgenders and members of all religious communities, and have been advocating implementation of Uniform Civil Code.

Former Chief Justices YV Chandrachud and VN Khare in the famous Shah Bano and John Vallamattom cases mentioned that a Uniform Civil Code will help the cause of national integration by removing contradictions based on ideologies.

Judgments such as these reflect the changing social norms and highlight the need for equal rights to people of all faiths to address religious inequalities and social prejudices prevalent in society.

It would be naive to expect that one judgment of the Supreme Court alone will redress injustices faced by unwed mothers. But the judgment is certainly a significant move forward and would help a large number of surrogate mothers, unwed mothers and sex workers with children. IL

SUPREME COURT

Trial begins for ship crew HE Supreme Court has directed that 35 members of the crew of the US patrol vessel, MV Seaman Guard Ohio, will be tried by a trial court in Tamil Nadu. The crew was arrested by the Tamil Nadu police in October 2013 for carrying arms and ammunition on board and entering Indian waters without permission. The ship was intercepted by the Coast Guard and detained at Tuticorin Port in Tamil Nadu. The crew was taken into custody under the Arms Act and the Essential Commodities Act.

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Parties and RTI N a move that may bring in transparency as far as political parties are concerned, the apex court issued notice to six national parties, asking them to explain why they did not fall under the ambit of RTI, as “public authorities”. The court was hearing a petition filed by lawyer-activist Prashant Bhushan which pointed out that despite the 2013 Central Information Commission (CIC) order that political parties are “public authorities”, the parties did not reveal information sought by the public under RTI, especially those related to funding. The petition also claimed that the CIC had no punitive powers to act against the parties and sought the apex court’s intervention. The court issued notices to the center and the Election Commission in this regard. They need to respond within six weeks.

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The Madras High Court had earlier struck down all legal proceedings against them, ruling that the Arms Act could not be slapped on them.

The apex court quashed the high court order and ruled that the accused had produced no evidence to claim immunity from the Arms Act. It asked the trial court to decide on the issue after examining the evidence. The apex court further ruled that it was for the trial court to decide whether the ship had entered Indian waters without permission.

ML Sharma to probe Ranjit Sinha N a fresh twist to former CBI director Ranjit Sinha’s case, the Supreme Court has chosen former CBI special director ML Sharma to head a probe team to investigate Sinha’s conduct on the “visitors’ diary” issue. The former CBI director has been accused of meeting people involved in the 2G and

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coal scams at his residence. It is alleged that the visitors were trying to influence the case. The court had earlier decided that a probe was necessary to ascertain whether the alleged meetings had any bearing on the CBI probe into the scams.

The investigating agency had expressed its reservations against such a probe, pleading that it will be a dent on its credibility.

No need to disclose medical bills HE Supreme Court did not entertain the plea of an RTI activist that medical expenses of judges and their family members must be in the public domain. The court ruled that it would be an assault on their right to privacy.

Subhash Chandra Agarwal wanted the information to be made public under RTI. The

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court felt that the information sought could lead to disclosure of ailments suffered by judges, which would be a breach of their right to privacy, and thus not acceptable. Agarwal had challenged the Delhi High Court verdict, objecting to the medical expenses of judges being made public, in the apex court.

Penalized for negligence HE parents of a child who lost her eyesight soon after birth in 1996, was awarded compensation of `1.8 crore by the Supreme Court. Fixing the blame on the Government Hospital, Egmore, in Chennai, where she was born, the court asked the Tamil Nadu government and the hospital to shell out the amount. It cited gross negligence by the doctors, who were monitoring the baby after her

T A relook at defamation laws HE Supreme Court has started taking another look at criminal defamation as a punishable offense. It was considering several petitions before it that stated that penal provisions in defamation cases had been done away with, in several countries.The court observed that defamation laws under IPC had been framed under the British Raj. The court questioned whether the time is now ripe to tone down the severity of the defamation laws.

It asked the government for a comprehensive response on how defamation laws could be decriminalized before it takes a final decision.

The sections in question are 499 and 500 of IPC which prescribe a maximum of two-year jail term for defamation offenses.

Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal had filed petitions stating that the penal provisions throttled the freedom of speech.

premature birth.

The apex court accepted the plea of the girl's parents that the doctors didn’t inform them about the impending risk of their child losing vision due to her premature birth. The parents alleged that the doctors did not prescribe any test to ascertain the risk and take preventive measures.And when the infant did show indications of blindness, it was just too late.

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Illustrations: UdayShankar

Justice Sabharwal no more

Creche facility withheld

ORMER chief justice of India (CJI) YK Sabharwal passed away recently. He was 73 years old. A distinguished judge, Sabharwal became a Supreme Court judge on January 28, 2000 and was CJI from November 1, 2005 to January 13, 2007. During his seven-year tenure in the Supreme Court, Sabharwal gave several landmark verdicts, which included asking the states to usher in reforms in police departments and upholding the power of courts to scrutinize laws listed by the center under the Ninth Schedule of the Constitution.

N a sudden turn of events, the Supreme Court has decided to put on hold its plan to inaugurate a crèche facility in the court premises on July 1. The decision was taken after a petition was filed by advocate Anindita Pujari, who pleaded that the proposed crèche had several shortcomings.The minimum salary fixed for helpers in the creche was less than the minimum wages prescribed by the Delhi government. Moreover the admissible age of children, fixed between 6 months to two years, was unreasonable and should be raised to six years, he pleaded.

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INDIA LEGAL July 31, 2015

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NATIONAL BRIEFS

Katju approaches Supreme Court FORMER SC judge, Justice Markandey Katju, has petitioned the apex court to expunge two resolutions passed against him, on March 11-12 by the upper and lower Houses of Parliament. The judge claimed that his rights as a private citizen to express his views freely had been violated by the resolutions. Katju had called Mahatma Gandhi “a British agent” and Subhash Chandra Bose “a Japanese agent” on his social media posts on March 10, earning the displeasure of the lawmakers.

The former chairperson of the Press Council of India alleged that parliament did not follow the principles of natural justice, as he was not heard. He pointed out that the resolutions were retrograde in nature and will block liberal thinking in India.

He even questioned parliament’s powers to condemn remarks made by a private citizen. The posts that included the remarks were only academic in nature, the former Supreme Court judge averred.

Kejriwal wants referendum

Bar Council okays foreign law firms THE GOVERNMENT’S proposal to open the legal sector to foreign players has got the nod from the Bar Council of India (BCI) and the Society of Indian Law Firms (SILF). But on one condition: Indian law firms should be allowed to operate from those countries given the go-ahead. The BCI and SILF felt that the legal sector cannot remain isolated when other services are being integrated globally.

Meanwhile, the government has begun consultations on the gradual opening up of legal services to foreign law firms with the safeguard that the litigation services will remain the exclusive domain of Indian lawyers. With India evolving as a hot destination for multinational companies, foreign law firms are eyeing the legal market. Some of the firms have approached the Supreme Court seeking permission to operate in the country.

Law against clinical trials soon STRINGENT RULES for clinical trials and punishment for violators is on the cards. The apex court, in a directive to the health ministry, had ordered it to frame guidelines for clinical trials of new drugs. Under the proposed law, companies will have to pay a fine of up to Rs 3 lakh for the violation of protocol even if the patient is not directly impacted. Companies will now have to take approval from the Drug Controller General of India (DCGI) prior to clinical trials of any medicine.

Whether a particular death, injury or bodily harm can be attributed to the trial will be decided by DCGI. It will also have the authority to decide the quantum of compensation.

THE DEBATE on full statehood for Delhi is back in the news. Chief Minister Arvind Kejriwal has dispatched a letter to the urban department to draft a law to facilitate it and to install government machinery to conduct a referendum on statehood for Delhi. The Constitution is silent on the issue of referendum and has no provision for it. According to the constitutional experts, achieving full statehood for Delhi through a referendum, involves a constitutional amendment which requires twothirds majority in Parliament. Meanwhile the state law department will discuss the legal issues pertaining to a referendum.

Demand of statehood for Delhi was part of AAP’s poll manifesto.

Bar Council to scrutinize all educational degrees IN THE light of former Delhi law minister Jitender Singh Tomar having acquired a fake degree, the Bar Council of India (BCI) has decided to scrutinize the educational qualifications of all its members. The BCI has been criticized for enrolling Tomar on the basis of an allegedly fake degree certificate. The BCI,

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the topmost statutory body governing enrollment, practice and conduct of lawyers across the country, has amended its rules to provide for identifying fake lawyers. The BCI Certificate and Place of Practice (Verification) Rules 2015 empower its decision making panel to oust fake people from court campus.

COURTS

Professor gets bail HERE is relief for Professor GN Saibaba of Delhi University. Arrested by the Maharashtra Police in 2014 under the Unlawful Activities (Prevention) Act for his alleged links with Maoists, Saibaba has been granted three-months bail by the Bombay High Court on medical grounds. Saibaba, incarcerated in Nagpur Central Prison, was earlier admitted to a private hospital on the court’s direction.

The court now held the view that Saibaba’s medical condition warranted not only medical attention but he also needed to be united with his family in Delhi. It observed that his fundamental rights would be violated if he was not granted bail. The wheelchair bound professor, suffering from degeneration of the spine

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Nestle India to export Maggi

N and other neurological complications, has been permitted to travel to Delhi.

The court directed Saibaba to furnish a personal bond of `50,000. It also barred him from having access to any communication device such as mobiles or laptops at his house.

Baseless FIR N a major embarrassment for the state, the corruption case moved against Prakash Mishra, CRPF DG, by the Biju Janata Dal government in Odisha was quashed by the Odisha High Court.

The court felt that the state vigi-

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July 31, 2015

OT good in India but good enough to be exported. Nestle India has been allowed to export its Maggi brand of noodles by the Bombay High Court. The court passed the order after the Food Safety and Standards Authority (FSSAI) stated that it had no objection. The FSSAI had on June 5 banned the sale of all varieties of Maggi noodles in India. This ban continues although Nestle India has challenged it in the Bombay High Court.

Maggi was banned by FSSAI due to the presence of excessive quantities of lead and Monosodium Glutamate (MSG) in its samples. Nestle informed the court that following the FSSAI ban, the company was incinerating and destroying Maggi packets in large volumes. FSSAI took the stand that exporting Maggi was preferable to destroying it if Nestle India felt the noodles were safe for consumption. But a few days later after the court verdict, FSSAI CEO pleaded that the order be altered.

lance department had filed a baseless FIR to fix Mishra. The case, registered in September 2014, had even ruined his chances of being considered for the CBI chief’s post that year.

Mishra, a former state DGP, was accused of doling out favours to certain suppliers in 2009 while he was CMD of Odisha State Police Housing and Welfare Corporation.

The director of Vigilance was pulled up by the court for not ensuring that the probe was fair before registering the case. The court found that there was no evidence, prime facie, to implicate Mishra.

The officer had approached the high court pleading that the FIR be struck down. He also alleged that his side of the story was never sought in the probe.

A piece of advice for Thampu F late the principal of St Stephen’s College, Valson Thampu, has been in the news for all the wrong reasons. This has led the Delhi High Court to observe that there must be a reason why everyone is unhappy with him and why he has been facing flak from students, teachers and the staff.

The court made this observation while hearing a case involving SK Dash, an administrative staff of the college.

Thampu had suspended Dash in 2014, accusing him of “gross misconduct”. The latter challenged the decision

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and rejoined college in April following a settlement order from the division bench of the High Court. Dash later sought contempt proceedings against Thampu for making him work under “deplorable” conditions.

Thampu’s lawyer de-nied the allegation.

The court has now asked the principal to resolve all issues with Dash.

It has advised the two that they should take into consideration the image of the college and sort out their differences.

Film in trouble HEN you have a film with a character dressed up like Lord Shiva mouthing objectionable language and demanding money from people who wish to be photographed with him, you are asking for trouble.

After being restrained by a Delhi court from an all-India release on account of objectionable content, the Sunny Deol-starrer, Mohalla Assi, hit another controversy. A local court in Muzaffarpur, Bihar, directed the police to lodge an FIR against director Dr Chandraprakash Dwivedi, actors Sunny Deol, Ravi Kishan and Sakshi Tanwar, and five others for “abusing” Hindu deities in the film.

The court gave the order on a complaint filed by a lawyer, who submitted that the movie was still available on the internet and upon watching it, he was shocked by the abusive language used against Hindu deities.

The court will decide the next date of hearing once the FIR is filed.

W Shun politics of vendetta ELIVERING its judgment in a 2003 rioting case in Madipur, West Delhi, a Delhi court blamed political parties which, while in opposition, incite mob violence for unsettling the ruling government. It urged parties to shun politics of revenge and instead stand behind the ruling establishment during a crisis and help it defuse it.

The court noted that the police is often seen as a mute spectator in cases of mob violence and observed that it should equip itself with special skills to contain the damage to public property and human lives, when such violent incidents occur. It also insisted upon speedy trial in such cases so that the guilty don’t go away scot free. It sentenced six persons involved in the riot to a one-year jail term.

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

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LEAD/ Books/ AS Dulat

An Insider’s Telling Tale The former R&AW chief’s book provides an insight into how governments actually function and how they deal with insurgencies

By Ajith Pillai

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PERSONAL ACCOUNT (Below) Dulat’s narrative is not a comprehensive history of Kashmir during the Vajpayee years

HIS is not the first time that those who served in Indian intelligence have penned their memoirs. But what sets AS Dulat’s Kashmir: The Vajpayee Years apart is that it is written with a reporter’s instinct of presenting recent history in a “this is how I saw the story unfold” format. But in doing so, the writer has not excluded the human element and drama from the narrative. This makes the book readable, entertaining and credible. In fact, so much so that for a moment the reader may

Photos: UNI

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even forget that the ex-spook (Dulat served with the IB, headed R&AW and was in the PMO as part of Prime Minister Vajpayee’s Kashmir peace initiative) has held back certain uncomfortable facts from his eyewitness account of what transpired since terrorism reared its head in the Kashmir Valley in 1988.

For instance, those who have covered Kashmir will note that the shocking human rights violations that were often brushed off as collateral damage inflicted on innocents in the fight against insurgency finds no mention in the book. Neither does it offer any insight on the prolonged deployment of the army and paramilitary in the Valley and its fallout on the civilian population. That said, it needs to be pointed out that the reader should not mistake Dulat’s narrative to be a comprehensive history of the period covered by the book. This is a frank, personal and emotive account of a journey during which the author saw and observed much. In fact, distilling those memories into an engaging tale is the charm of the book.

Dulat’s ringside view of events has already ruffled several feathers. There are many who are upset that he has written what he has.

The Abdullahs are cut up. The PDP is also unhappy. There have also been discussions

on TV on whether the writer should have pointed out strategy flaws in the handling of the Kandahar hijack. Was he making state secrets public when he “revealed” that insurgents willing to come over-ground were lured by the government with money and other sops? And should he have shared information about the intrigue, fears, apprehensions, priorities and suspicions that influenced our political leadership?

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uch of what has found its way into the book is not new for those who have followed events closely in Kashmir or have an understanding of how governments and intelligence agencies function. Perhaps, it’s the way Dulat has put it that has made many see red. Here is a sampling of his candid observations: “Using money to win people over is perhaps the most effective tool at the disposal of intelligence officers not just in Kashmir, and not just in the subcontinent, but all over the world. Most agents are paid agents. If in Kashmir, for instance, you find someone who is working for the ISI, you just offer a lot more money than it does. Perhaps he will be afraid of getting killed by the ISI but at the very least you have neutralised him.

Corrupting a person by giving him money is not only a lot more ethical than killing him, but a lot smarter in the long run. And no one has come up with a better way of dealing with Kashmir. Money in Kashmir goes back a long, long way.”

Such frank admissions and the human element which peppers the narrative makes Dulat’s book a gripping read. For instance, he recalls how he received a surprise call from Namrata, Vajpayee’s adopted daughter, a week after he joined the PMO. “Welcome to the family,” she said, adding: “Now that you are here, we’re reassured. Please look after the two old men. They’re your responsibility.”

The reference was to the 76-year-old Vajpayee and Brajesh Mishra, principal secretary to the PM and NSA, who was four years his junior. Again Dulat’s description of the all powerful Brajesh Mishra, who “most senior ministers in the government did not see eye to eye with” including LK Advani and Jaswant Singh, is something most journalists missed or dared not write about. “He was not a social namby-pamby drinker. He drank everywhere and drank only Scotch. Also, he would talk about how, when he went to New York, the first thing he wanted to do was go and listen to some jazz. He loved jazz and often spoke of the jazz in New York....At the same time, however, you would never see him in anything but a safari suit ...,” he writes.

Dulat was obviously unimpressed by Mishra’s dress sense!

Buy this book because it gives you an insight into government functioning and how it dealt with separatists as well as political parties in insurgency-bound Kashmir.

And in between all the serious business, there are delightful nuggets that have great entertainment value. This is an insider’s story that is at times unbelievable, yet true. For instance, who would have thought that separatists as well as militants were in constant touch with the government and their demands and creature comforts were often met by the state. If Dulat had tweaked it appropriately, he could have passed his story off as a political thriller.

But as the old saying goes, sometimes truth is stranger than fiction. IL

READERS’ CHOICE (Left) While writing about insurgency in Kashmir, Dulat has not excluded the human element and drama from his narrative

Kashmir: The Vajpayee Years

By AS Dulat with Aditya Sinha Published by Harper Collins Pages: 342; `599

INDIA LEGAL July 31, 2015

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LEAD/

Interview/ AS Dulat

“Money has been there in the Kashmiri DNA” A

MARJIT SINGH DULAT has provoked a hornet’s nest both within the ruling BJP and the Opposition with his book, Kashmir: The Vajpayee Years. He is a former special director of the Intelligence Bureau and served as chief of the Research and Analysis Wing. After he retired, he was appointed as an advisor on Kashmir to the Prime Minister’s office. In his own words, it was a rise he had never imagined when he joined the IPS in 1965. It certainly never even crossed his mind that he would end up in the PMO when he joined the IB in 1969 as a young assistant superintendent of police. His journey has been punctuated with numerous historic events. In a freewheeling interview to India Legal’s Managing Editor RAMESH MENON, he talks about his career as one of India’s top intelligence sleuths. Excerpts: 24

July 31, 2015

What triggered off the idea that you should write this book and let the world know some small truths?

This is a question as complex as Kashmir. I had a 27-year association with Kashmir.

When I left the government in 2004, many publishers approached me but it was not appropriate at that time. But now I have had the time to think. I have learnt more after retirement and wanted to pen it down.

Why have so many eyebrows been raised since your book has come out?

Some say it is too forthright. But If one has to tell a story, it should be told truthfully.

I have tried not to offend anyone. But in the flow of telling the story, some do get offended.

Brajesh Mishra, principal secretary in the PMO and NSA called the shots in the Vajpayee government? How did he became so powerful?

Brajesh became powerful as he was close to the Prime Minister. He was the Principal Secretary and also the first National Security Advisor. It is a heady cocktail and so he was naturally powerful. But he did not flaunt his authority. He oozed confidence and did not need to demonstrate authority. He also delegated confidence.

You have said that Brajesh was the main cause of tension between Vajpayee and Advani. How did it manifest itself ?

Vajpayee and Advani had great regard for each other. In one of his interviews, Brajesh suggested that the post of NSA should be scrapped as it brought it in conflict with the home ministry as both dealt with national security.

Is it true that many of the ministers were not kept in the loop when major decisions were taken by the PMO during Vajpayee’s reign?

Not at all. In fact, it was a great cabinet. Not only did you have a PM like Vajpayee, you had a deputy prime minister like LK Advani and ministers like George Fernandes, Yashwant Sinha and Jaswant Singh who were strong personalities. George Fernandes complemented both Vajpayee and Advani as he was an excellent defence minister.

“Everybody thinks that their system is the best. The UPA said that they would not negotiate with terrorists. Jaswant said that everyone negotiates when the need arises. Even the Israelis have been known to negotiate.’’

Do you see any similarity between the style of Vajpayee and Modi?

They are very different people.

Vajpayee was heading a difficult coalition. But, Modi can do what he likes as he has a comfortable majority. Modi can do much more for Kashmir and Pakistan than Atalji or Manmohan Singh could do.

Is Modi doing enough?

He is meeting Nawaz Sharif. He is also visiting Srinagar during Eid which is very good. No PM has ever visited Kashmir during Eid. This is imaginative thinking on his part. The alliance of the PDP and BJP in J&K can be taken forward if they bond well. It can bring Jammu and Kashmir together.

This is what we need today.

You said that the NDA goofed up on the 1999 IC-814 hijacking. It will be good if you graphically describe what exactly happened.

The hijacking bit was handled

Photos: Anil Shakya

LEAD/ Interview/ AS Dulat

NOTHING FAULTY ABOUT IT Dulat says that besides the Amritsar goof-up, Indian response to the hijacking of IC-814 in December was apt

well in its totality. If you scrutinize it today, we had 50 minutes in Amritsar and it was an opportunity we did not utilize. I cannot give an answer other than this. KPS Gill was quite critical of the way Punjab police handled it, saying it showed weakness.

What was the flaw?

There was no flaw. It was handled in the best way we could. Other than the Amritsar question. We all goofed up.

Everybody thinks that their system is the best. The UPA said that they would not negotiate with terrorists. Jaswant said that everyone negotiates when the need arises. Even the Israelis have been known to negotiate.

Was it the fear of lives being lost that resulted in no one taking a decision or was it just bad strategy?

It was bad strategy. The safety of the passengers was uppermost in the minds of everyone. It was not an easy call to take. In hindsight, you can say

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“Post 1996, we came to understand that dialogue was important and much better than the gun.

It was a masterstroke of Narasimha Rao to revive the democratic process.� anything. But it was an unnerving situation.

The hijackers initially wanted over 100 terrorists to be freed.

The militants asked for the release of over 100 but we whittled it down.

How much do you think was the payoff to the militants at Kandahar

to secure the release of passengers?

Zilch. There are so many stories like the fact that boxes of cash were sent.

Had there been a plane full of cash it would have been hijacked.

Farooq Abdullah was furious over the deal with terrorists during IC 814 hijack. He vented his anger for three hours and then rushed to Governor Girish Chandra Saxena to resign.

The governor calmed him down with two glasses of whiskey and then he relented. This is what you say. What exactly went through Farooq Abdullah’s mind at that time?

Farooq was opposed to it in principle.

He wanted the theatre to play out to the full. When we got to the Raj Bhavan, the governor told him to calm down and not to throw in the towel.

Farooq said that the idiots do not know what they are doing. The governor said that Delhi had probably thought this

out and we had to go with it. Farooq then relented. He respected Governor Saxena.

You did have open lines with Kashmiri militants. How far was it successful and what did it yield in real terms?

Some say it yielded nothing. But it yielded a lot. The 1996 election was a crucial one as it revived the democratic process. Some militants came over ground and some even came to Delhi to meet Union Home Minister SB Chavan.

Whatever happened to “friendly militants” who were being cultivated?

It helped a great deal in fighting militancy. Post 1996, we came to understand that dialogue was important and much better than the gun. It was a masterstroke of PM Narasimha Rao to revive the democratic process.

It is said that politicians like Syed Ali Shah Gilani and Mirwaiz Farooq and other separatists were paid by both sides (India and Pakistan)…

People have been paid for ages in Kashmir. It is nothing new. It was always there since 1953. Money has been there in the Kashmiri DNA. How do you see the February 1987 rigged election in Kashmir that was reportedly done with the full knowledge of Rajiv Gandhi and Farooq Abdullah?

I was not there in 1987 and was posted there only in 1988. It was not such a big issue then. Kashmiri boys had started going across. Pakistan had this policy of “a thousand cuts” and 1987 was a catalyst of something that was already simmering in the system.

At some point or the other, numerous leaders like Sheikh Abdullah,

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LEAD/

Interview/ AS Dulat

POWER CENTERS IN THE VALLEY (L-R) J&K Chief Minister Mufti Mohammad Sayeed and National Conference leader Farooq Abdullah

weeks. This is how we function. It’s a very stressful life. Families get affected very seriously. There is very little glamour. People think we live the life of James Bond.

Farooq Abdullah and others have played the India versus Pakistan card, sometimes on the side of India and sometimes on the side of Pakistan.

Farooq never played the Pakistan card.

Whenever Kashmiri leaders come under pressure, Pakistan provides a fall-back position. It is a convenient cushion to fall back on.

Do intelligence agencies take the approval of the government before establishing contact and offering financial support to militants?

Nothing in our system can be done without government approval. But every time we do something, there is no need to tell the government everything.

What would you say are the failings of the Indian intelligence agencies and what corrective steps should be taken?

Having spent 30 years in the IB and 2 in RAW, I can never say that we have had failings. We are as good as anywhere in the world. There are failings and every time something goes wrong, intelligence is blamed. 9/11 would not have happened without an intelligence

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“Mufti Mohammad Sayeed was one of the tallest leaders in Kashmir. He had a complex relationship with Farooq. He wanted to compete with the Abdullahs.” failure. It happens all over the world.

There are manpower shortages in the IB in particular. RAW needs language experts and also some Muslim officers. Agencies need more recognition from the government as they function under extreme stress and it is not just a job. It requires expertise. It is not a bureaucratic job.

The winter of 1989-90 was so bad that all the central government officers in Srinagar left because of threats and only the IB and RAW officers stayed put. We were also under threat. We did not leave. We lost four officers in five

Should intelligence agencies like RAW and IB be held accountable to parliament? Should their accounts be subject to audit? Or do intelligence agencies have to operate in utmost secrecy and remain opaque?

Time will come for accountability. But it should not come all of a sudden. We are an open democracy and a great one at that. But we are not the United States of America.

Is it a healthy trend for politicians to use the IB for political reasons?

Not at all. It has been used before but let me say, mostly sparingly.

Was the Kargil War an intelligence failure? Did India become complacent after Pokhran-II? It is said that with Pakistan and India having achieved nuclear parity there was a perception within the political leadership that there would be no conventional war. There was even talk of paring down troops along the LoC. The intelligence bureau had sent a report indicating unusual activity that something was amiss. The Kargil Committee said that this report did not find its way to everyone who should have been informed. If it is going to the home ministry, it is taken for granted that they would keep relevant people informed.

Did the bonhomie shown during

ALL CHANNELS OPEN Former Prime Minister Atal Bihari Vajpayee with Kashmiri leaders, as part of NDA government’s efforts to restore peace in the Valley

Vajpayee’s bus ride to Lahore add to the overall complacency?

There was no complacency. We know that the worst damage to intelligence services are during times of friendship.

You have said that you used to enjoy a drink with Mufti Muhammed Sayed.

How would you describe him as a politician and what was his relationship with Farooq Abdullah?

Mufti Mohammad Sayeed was one of the tallest leaders in Kashmir, little shorter than Farooq. He was extremely astute. He was also a union home minister. He had a complex relationship with Farooq. He wanted to compete with the Abdullahs. In 2014 we saw that he had become a regional force.

How do you rate the current government’s policy on Pakistan and Kashmir?

They are maintaining a go slow. The status quo is never good enough.

You were the special advisor on Kashmir in the PMO during Vajpayee’s time. What was your point of view then on the Kashmir issue and what is it today?

My point has not changed. I learnt much from Vajpayee. We needed to move forward in Kashmir and we needed to end permanent confrontation with Pakistan.

During his visit to Lahore, Vajpayee said hum jung na hone denge (we won’t let a war break out) and Pakistanis loved him for that. Kashmiris loved it when he said let us talk within the ambit of humanity. Anybody who talks to anybody cannot talk outside the constitution. Why are we repeating this all the time? When the Hurriyat came and talked to Advani, it was not outside the constitution.

How has Pakistan’s stance on Kashmir changed?

It keeps changing. The most realistic position was what Musharaff had taken when he said that whatever is acceptable to the Kashmiris is acceptable to Pakistan. When people now start mouthing views saying let’s go to the UN resolution, there is no point.

Vajpayee and Manmohan Singh said that they wanted peace. That is the point. When Vajpayee visited the Minar-e-Pakistan, he wrote in the visitor’s book that a strong and stable

Pakistan was in the interest of India.

Why didn’t Vajpayee take a strong stand on Modi after the 2002 riots?

You have said that he was upset about it.

I am not aware I am not aware of his wanting to take action or if he was upset. He did say that maybe Gujarat was a mistake and may have affected election results (in 2004).

Why do you think the Agra summit failed? What really went wrong?

The Pak perception was that Advani was the architect and spoiler of Agra.

The Indian perception was that it was almost done and just slipped off at the last moment. Tactically, Pakistan made a mistake by putting too much pressure on the Indian prime minister.

The BJP claims that the book is not your voice but the voice of Aditya Sinha, your co-author. He has claimed that he had to dress up the book.

It’s a fact that Aditya Sinha helped me to write this book and maybe, without him, this would not have been finished.

But it’s not his voice. The voice is mine.

He is only the playback singer. IL INDIA LEGAL July 31, 2015

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PROBE/ Vyapam Scam

SKATING on Thin Ice The Madhya Pradesh chief minister faces an uncertain future as the job and college admissions racket snowballs into a big political storm

By Rakesh Dixit in Bhopal

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ECOMING Madhya Pradesh’s longest serving chief minister has been Shivraj Singh Chouhan’s long cherished goal. But will his dream run end as yet another case of coming so close yet being so far? Right now, Chouhan is just four months short of surpassing his predecessor Digvijaya Singh’s 10 year record as CM. But the raging fire of the Vyapam admissions and appointments scam threatens to singe Chouhan’s grand ambitions.

From a confident and proud CEO of his state, he has become a veritable political wreck.

And questions are being asked in Delhi, and that too within his own party, the BJP, about whether he will survive this agnipariksha.

The scam hit the national headlines at a time when the BJP is battling an onslaught of corruption charges which have already corroded the clean image of the Modi government. But the Vyapam racket is unlike the allegations of impropriety leveled at external affairs minister Sushma Swaraj and Rajasthan Chief Minister Vasundhara Raje. For a start there is no Lalit Modi to blame for leveling wild charges. Many of the facts that have become public are based on police investigations, court observations and the government record.

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FALL FROM GLORY Shivraj Singh Chouhan’s reputation as a quiet and effective leader has taken a hit following Vyapam

The swindle involves thousands of victims, hundreds of crores of rupees, accompanied by the stench of death. The list of those linked to the scam, who have died under mysterious circumstances, seems to be growing by the day and BJP spokespersons have been having a tough time defending the indefensible. If sources in the BJP are to be believed, there is a big question mark on how long the party will rally around Chouhan. Or will it leave the Madhya Pradesh chief minister to his devices and let him handle the crisis on his own?

TRAIL OF DEAD The big blow for Chouhan came on July 9 when the Supreme Court ordered a CBI probe into the multi-crore admissions and recruitment scam. The court order followed an unprecedented nationwide outrage over mysterious deaths of over 40 accused and witnesses related to the multi-layered swindle that has caused over 2,000 arrests, including those of politicians, bureaucrats, job racketeers, middlemen and businessmen, apart from a large number of medical students and their parents. Nearly 500 suspects are still absconding while 55 chargesheets have been filed in the state’s 22 courts against the benefi-

ciaries of gross subversion of pre-medical and recruitment tests conducted by the Madhya Pradesh professional examination board since 2008.

Although the scam had snowballed into a mega corruption scandal, a crafty Shivraj Singh Chouhan managed to keep his chin up.

His refrain that the Special Task Force (STF) of the state police was doing a fine job under the supervision of the Madhya Pradesh High Court may have evoked sharp protests from the Congress. But people in Madhya Pradesh had been largely insouciant. After all, corruption in medical college admissions and government jobs is acknowledged as a given in this part of the world. It is only after the relentless reports about the spate of “unnatural deaths” hit the national media that trouble for Chouhan began mounting.

The most disturbing of them all was the death of Akshay Singh, a TV journalist on July 4. Although the real cause of the scribe’s death is yet to be ascertained, a shaken Shivraj did everything he could to ensure that his reputation did not suffer. He even went to Akshay Singh’s house in New Delhi to offer a job to the deceased scribe’s sister and financial support which the bereaved family rejected.

Chouhan should have seen red when the special investigation team (SIT), set up in November 2014 by the Madhya Pradesh High Court to

The real reason for Chouhan agreeing to a CBI probe was BJP president Amit Shah’s call, asking him to spare the party more opprobrium.

PROTECTED BY PROTOCOL? Governor Ram Naresh Yadav is enjoying immunity only because of the post he holds

INDIA LEGAL July 31, 2015

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PROBE/ Vyapam Scam

IT GETS MURKIER (L-R) Two deans of Jabalpur Medical College, Dr DK Sakalle and Arun Sharma have died mysteriously over the last one year, and so has MP governor’s son Shailesh Yadav

It was only after the mysterious deaths hit national headlines that a shaken Shivraj did everything he could to ensure that his reputation did not suffer.

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July 31, 2015

monitor the progress of the STF investigation, reported 23 unnatural deaths of those accused and witnesses in the scam on May 27. The SIT was led by retired judge justice Chandresh Bhushan. Its status report to the court containing names of the 23 dead immediately brought other suspected deaths into sharp focus. Media speculated that the actual number of dead might be over 40. In its subsequent status report to the high court, the SIT too updated the death figure to 32 with nine more deaths being detected.

Most of the dead were young men between 25 and 30 years. The SIT report created a sensation in the local media. Till then only four suspicious deaths had hit the headlines but the police declined to probe any of them. Medical student 19-year-old Namrata Damor’s death was explained away as suicide that had occurred long before the scam surfaced. Her body was found on the railway track near Ujjain on January 6, 2012. A student of Indore medical college, Namrata had allegedly cleared the pre-medical test in 2009 fraudulently. A panel of three doctors, who conducted her postmortem, had declared she died of violent asphyxia which pointed to murder. Yet, the Ujjain police closed the case as a suicide.

Likewise, the police refused to see any foul play in the death of Governor Ram Naresh Yadav’s son Shailesh. His body was

found at his Lucknow residence in March 2015. The STF was on the lookout for Shailesh for helping eight candidates clear the contract teacher test after taking `3 lakh each from them. The police also did not deem it fit to probe the gruesome death of Jabalpur Medical College dean Dr GS Sakalle who allegedly committed suicide by pouring kerosene on his body at his residence on July 4, 2014. Dr Sakalle was scrutinizing the list of medical students who got admission since 2008. And Vijay Patel, an accused in three cases of job rigging, was found dead in April, 2015 in a hotel owned by a BJP leader in Kanker (Chhattisgarh). The MP police passed the buck on to their Chhattisgarh counterparts.

The government explained away the deaths as caused by road accidents, suicides and illnesses without promising a deeper probe. But Bhushan, assured the media that he would urge the high court to order a probe by the STF into the causes of these deaths. In the days that followed, the media patiently waited for the high court to issue such an order. No one in the state establishment reckoned that it was a proverbial lull.

It was on June 28 that the storm broke.

On that day, veterinary surgeon Narendra Singh Tomar, 28, died in an Indore jail under mysterious circumstances. He was in custody since February for helping two medical stu-

dents clear the pre-medical test in 2009. Outrage over his death was compounded by the death of Dr Rajendra Arya in a Gwalior hospital.

Dr Arya, who was accused of arranging impersonators to appear in exams, was on bail since February last year after being arrested.

There was more media frenzy as Aaj Tak channel’s special correspondent Akshay Singh suddenly collapsed after allegedly frothing in the mouth in distant Meghnagar town of Jhabua district on July 4. He had gone to interview the father of Namrata Damor who had mysteriously died. Singh’s death assumed a more sinister dimension when a whistle blower and forensic expert, Dr Anand Rai, alleged that the journalist may have been insidiously administered a slow poison that reacts late but fatally with the chemicals in the body. The recovery of Jabalpur Medical College dean, Dr Arun Sharma’s body in a New Delhi hotel the following morning had the media more furiously dubbing Vyapam as the most murderous scandal India had ever seen.

HE FINALLY BLINKED Chief Minister Shivraj Singh Chouhan was, predictably, a very perturbed man as the national media screamed murder and the opposition gunned for his resignation with renewed vigour. Already scarred by Lalitgate, the BJP leadership was rattled by the vociferous outburst. The chief minister, who would earlier depute his ministers to deal with media queries on the issue, finally acquiesced to the party leadership’s advice to do the explaining himself. In the press conference on July 5 at his residence in Bhopal Chouhan’s characteristic élan was missing.

He stonewalled all questions on a CBI probe by pointing out that the Madhya Pradesh High Court was satisfied with the STF enquiry and the Supreme Court too had endorsed the lower court’s decision to reject petitions for a CBI probe in the past. Therefore, he argued that agreeing to any independent probe at this stage would tanta-

mount to insulting the high court and he would not do that. “I have utmost regard in the Indian judicial system,” he repeated ad nauseam in the press meet, only to take a Uturn the very next day.

On July 6 the chief minister called media-persons to tell them that he was going to write to the high court that the state government intended to handover the STF probe to the CBI in view of growing public pressure. He attributed his decision to the public perception that he had something to hide by opposing a CBI investigation. Later, however, it transpired that his sanctimonious reverence to public perception (lok laj) was not the reason behind his volte face. The real reason was BJP president Amit Shah’s call, asking him to spare the party more opprobrium on account of the Vyapam scam.

The chief minister’s move was viewed as a desperate attempt to make a virtue out of necessity. A clutch of four petitions for a CBI probe was already slated to be heard in the Supreme Court on July 9. It was almost a foregone conclusion that in the light of the damning disclosures in the scam, particularly over the 40 suspicious deaths, the apex court would have no hesitation in

THE EPICENTER The Vyapam office in Bhopal

Congress leader Digvijaya Singh alleges the chief minister is also involved. He replaced his name with that of Union Minister Uma Bharti in a tampered excel sheet.

INDIA LEGAL July 31, 2015

33

PROBE/ Vyapam Scam

Admissions & job fixing: It started as a simple case of corruption but snowballed into VYAPAM Explained Vyapam is the acronym of Vyavsayik Pariksha Mandal or Professional Examination Board of Madhya Pradesh which conducts examinations for professional courses and recruitments to government jobs. The scam first surfaced in 2007 when it was discovered that corrupt officials were taking bribes to fix admission to medical colleges and recruitment of police personnel and teachers

Modus operandi Instead of the candidate an impersonator

appears for the examination. This is done with the connivance of the board officials and the invigilators. Payoffs are made at every level Candidates who have paid money are given high

percentages by those marking papers Seating arrangements in the exam hall is made

to accommodate a dummy candidate capable of scoring high marks and his answer sheets are passed on to the actual candidate.

“I thought about this seriously last night and I came to the conclusion that there should be CBI probe in this matter.”

Shivraj Singh Chouhan, chief minister of Madhya Pradesh

“Death is a natural occurrence, be it in the jail or on rail (train), one who has been born will die.”

Babulal Gaur, home minister of Madhya Pradesh

“Forget that journalist (Akshay Singh) who died. Is he more important than I am?”

Kailash Vijayvargiya, cabinet minister of MP, recently named national general secretary of BJP

Many twists and turns 2008-12: 55 cases of impersonation

in exams filed across Madhya Pradesh July 2013: Around 20 impersonators arrested by Indore Crime Branch and FIR registered against them. News of scam breaks out July 2013: Dr Jagdish Sagar arrested for allegedly helping hundreds of candidates to cheat in a medical entrance exam August 2013: All criminal cases registered in connection with examination conducted by Vyapam handed over to special task force (STF) September 2013: MPPEB’s exam controller Pankaj Trivedi arrested for his alleged role in the scam November 2013: The STF investigation reveals that Vyapam officials devised similar fraudulent methods in other recruitment exams, including

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July 31, 2015

food inspector selection test and sub inspector and police constable recruitment test etc December 2013: FIR against exhigher education minister, Laxmikant Sharma, filed in the case February 16, 2014 Opposition Congress reveals information sourced from a “whistleblower”, alleging the STF was protecting the MP Chief Minister April 2014: Twenty-seven students of Mahatma Gandhi Memorial College, Indore, expelled for having allegedly used fraudulent means to clear the PMT-2012 June 2014: STF arrests former state technical education minister and BJP leader Laxmikant Sharma for his alleged involvement in contractual teacher’s recruitment scam and

constable recruitment scam November 2014: Madhya Pradesh High Court rejects Congress Leader Digvijaya Singh’s petition, seeking CBI probe in the scam. However, to ensure the impartiality, court orders formation of an SIT to monitor the ongoing probe February 2015: FIR filed against Governor Ram Naresh Yadav in the scam March 2015: Shailesh Yadav, son of Governor Ram Naresh Yadav, found dead at Governor’s official residence in Lucknow July 7, 2015: An Aaj Tak journalist, a Jabalpur college dean and a woman sub-inspector found dead in a span of 48 hours. All three were involved in one or the other with the case July 9, 2015: Supreme Court orders CBI probe

A sordid story a major scandal, involving a trail of unexplained deaths

Dramatis personae Governor Ram Naresh Yadav The Special Task Force found evidence against the governor and filed a chargesheet against him for alleged involvement in MPPEB forest guard recruitment exam scam. His officer on special duty Dhanraj Yadav too is accused in the case and was arrested by STF in 2013. His son, also involved in the racket, was found dead under mysterious circumstances in March this year in Lucknow.

Shivraj Singh Chouhan, Chief Minister There are allegations of his involvement which has seriously dented his reputation.

“I am scared. I “Vyapam scam and “BJP must be ashamed am a minister but all deaths so far of the latest still I am scared. I must be thoroughly developments in this will convey my investigated and the case. The PM’s silence fears to Shivraj guilty punished. over the Vyapam scam Singh Chouhan.” Something must be raises a lot of suspicion.”

Uma Bharti, done to prevent D Raja, CPI leader Union minister more deaths ” Arvind Kejriwal, chief for water minister of Delhi resources

Mystery Deaths

There are several figures doing the rounds of the number of accused and witnesses who died. Some reports put it at 45, others at 36. The state government claims these figures are exaggerated. Here are some of the controversial deaths:

Vikas Singh Thakur Accused. Died on November 21, 2009, in Barwani due to illness and adverse drug reaction

the PMT exam scam died in Gwalior on June 14, 2010, in a road mishap.His family says that his death is related to the scam.

Anshul Sachan MBBS student linked to

An OSD to Laxmikant Sharma. He was involved in police constable recruitment examination scam of 2012. Initially he absconded, but later surrendered.

Pramod Sharma

Middleman in the scam. Died in Gwalior in a road mishap on November 28, 2012.

Dr Jagdish Sagar He helped around 140 students get selected to the medical courses illegally during 2009-12. He arranged impersonators, largely sourced from Uttar Pradesh. He ran the alleged racket since late 1990s.

Pankaj Trivedi, MPPEB Examination Controller

Namrata Damor

Arvind Shakya

OP Shukla Officer on Special Duty to Laxmikant Sharma.

He is accused in the scam. He allegedly took over `85 lakh as bribe from candidates for helping them clear the medical entrance test.

Sudhir Sharma

Named in police constable exam scam. Allegedly committed suicide in April 2013. His family says he was bumped off.

A Ist year student of MGM Medical College, Indore. Allegedly committed suicide in January 2012. However, her postmortem report reveals she was murdered.

Laxmikant Sharma, ex-Education Minister, MP He has been accused of influencing results in the contractual teachers’ recruitment and constable recruitment exams. According to the STF, he recommended names of at least 15 candidates for recruitment as constables.

Akshay Singh Special Correspondent with Aaj Tak investigating the Vyapam scam. Died on July 4, 2015. He was in the best of health and conducting an interview when he suddenly collapsed.

Was declared dead on arrival at the hospital.

Arrested in September 2013 and currently in judicial custody. The state anti-corruption police has recovered around `2.5 crore and numerous properties from him.

Anand Rai, activist Dr Anand Rai was the first to expose the scam through a PIL which led to investigation in the scam. He reportedly receives regular threat calls, and has also alleged that contract killers were hired to kill him.

INDIA LEGAL July 31, 2015

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PROBE/ Vyapam Scam

Nearly 500 suspects are absconding while 55 chargesheets have been filed in the state’s 22 courts against the beneficiaries of gross subversion of the exams.

IT’S MUSIC FOR CONGRESS Digvijaya Singh is doing his best to capitalize on this scam

upholding the petitioners’ pleas. And precisely that happened. The Supreme Court also expressed displeasure with the Madhya Pradesh High Court for “washing its hands off ” a similar petition of the state government a day before. The high court had refused to act on the state government’s petition for a CBI probe, citing the four petitions pending before the Supreme Court.

On the same day, the Supreme Court also served a four-week notice to the Madhya Pradesh Governor Ram Naresh Yadav and the union government on a petition seeking his removal from his post. The governor was accused of taking `3 lakh each from five candidates who appeared for a professional examination board exam. He allegedly took the money from them in the Raj Bhawan premises. The governor’s then officer on special duty, Dhanraj Yadav, is already in jail on similar bribery charges. The governor’s son, Shailesh, was also involved in the racket. Yadav’s continuation in his post had become untenable after an FIR was lodged against him in April this year on the Madhya Pradesh high court‘s direction to the STF. However, the same court stalled any action against the governor a month later accepting his contention of constitutional immunity.

SNOWBALLING EFFECT When Chouhan ordered setting up a STF to probe into the Vyapam scam a month after it surfaced in Indore in July 2013, he probably thought it a smart move that would effectively silence the opposition.

At that time, Shivraj’s popularity was at its peak. The assembly

election in Madhya Pradesh was barely three months away and the main Opposition, the Congress, was too demoralized to make the burgeoning scam a potent poll plank. His gambit paid off. People bought into the chief minister’s assertion that he sincerely wanted to get to the bottom of the case. Result: the BJP returned to power in the election with a bigger majority than before.

But the scam snowballed. Initially, it looked like an exposé of a homegrown nexus of pre-medical test admission mafia and the MP professional examination board officials.

But it metamorphosed into the biggest swindle of India as the board’s examination controller, Pankaj Trivedi, started singing like a canary in police custody. He confessed that a dozen-odd recruitment tests conducted by the board had been rigged since 2008. The board’s chief system analyst, Nitin Mahindra’s computer hard disk was a veritable minefield where names of those recommending candidates were duly mentioned in excel sheets. They included the governor, Union Minister Uma Bharti, RSS leader Suresh Soni, bureaucrats and their relatives apart from middlemen and job racketeers. The scam simply got bigger and bigger.

I

n Bhopal there is much speculation on what will happen to the chief minister once the CBI takes over the probe from the STF. Like the governor, the chief minister too is facing allegations of direct complicity in the scam. He is accused of having tampered with an original excel sheet from a hard disk in the Vyapam board office that had the CM’s name entered 48 times as a person who recommended candidates for a contract teachers recruitment test. Senior Congress leader Digvijaya Singh alleges that the chief minister had his name replaced with that of Union Minister Uma Bharti in the tampered excel sheet.

At the moment the chief minister is clearly skating on thin ice and will need all the support of his well-wishers in the BJP high command. But will party back him? Or will his detractors seize the opportunity to settle old scores? The chief minister looks visibly shaken and unsettled and is already the shadow of the man he used to be only a few months ago. IL

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

WHO ISLKAFRAID OF THE EMERGENCY? Advani’s fears spark off a national debate

Former law minister HR Bhardwaj, Seshadri Chari, Justice Mukul Mudgal, Rajeev Dhawan speak out

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ACTS & BILLS/ Insurance Act 1938

Anthony Lawrence

Time To Be Vigilant A new amendment to Insurance Act 1938 imposes a three-year time limit for insurers to complete verifications. After that a policy becomes valid and cannot be cancelled

By Shantanu Guha Ray

A

T a recent conference in Kolkata, worried officers of Life Insurance Council, an apex industry body of life insurance companies, were seen hurriedly formulating a centralized database of insurance policies to detect fraudulent claims.

The database, they hoped, would be ready by the end of this year and tackle what they claimed was going to be one of the biggest crisis of India’s insurance market. What is the worry?

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July 31, 2015

There is a new amendment to Section 45 of the Insurance Act 1938, which says that verifications and due processes will have to be completed within three years of a policy being issued. This means that even if due processes take longer, they will have to be completed within this time-frame. The amendment, claim experts, is a double-edged sword. While on the one hand, it is a boon to genuine policy-holders, there are also high chances that it will give a fillip to fraudsters.

V Manickam, secretary-general of the Life Insurance Council, said the new amendment could see a rise in dubious policies. “We fear

a large number of fraudulent policies would flood the market. We have got to be on alert,” he warned. Manickam should know.

BUILT-IN SAFEGUARDS The amendment is a tough one to handle.

The Act initially said: “No life insurance policy can be called into question on grounds of mis-statement or wrong disclosure after two years of the policy coming into force. However, if the insurer is able to prove that the claim was fraudulent, it need not be passed.”

Manickam says this was a great safeguard, enabling insurers to call for investigation after a death claim was received. The investigation was usually done within two or three years of the policy being purchased.

And the claim was rejected if there was misrepresentation, mis-statement or non-disclosure while acquiring the policy. In the same manner, all fraudulent claims were rejected.

“But now, we are in a different zone altogether,” Manickam told India Legal. He added that the council was in the process of short-listing a vendor who would offer technology to build and maintain a common database where all 24 life insurance companies will share their policy data, just like Indian banks.

The move has the blessings of the finance ministry, with Arun Jaitley already urging insurance companies to be on super alert because of the new amendment.

OLD VS NEW As per Regulation 8 of the IRDA Regulations, 2002, the insurer must settle a claim within 30 days of receiving all documents, including clarifications sought by him. An insurance company can set a practice of settling the claim even earlier. If the claim requires further investigation, the insurer must complete its procedures within six months of receiving the written intimation of claim.

The new amendment puts the onus on the insurers to do proper background checks at the time of underwriting a policy. Earlier, an insurance policy could be called into question even after two years if any wrong disclo-

sure or mis-statement by the policy-holder was discovered. In case of a wrong disclosure, insurers could even reject a claim. However, under the new rules, policies can no longer be called into question after three years of being issued.

Will a database alone be able to solve a mammoth crisis?

In February this year, an insurance claim investigator was attacked in West Bengal for trying to probe a fraudulent life insurance claim by a policy-holder. The investigator, seriously injured, spent a little over two months in a hospital.

UNDER THREAT The incident triggered a flood of news reports about similar incidents across India, where many of those probing suspicious claims were facing similar hardships. On paper, the job of a claim investigator is to review life insurance claims that look shady.

The investigator—an individual or a company—carries out a thorough investigation as well as verification of death claims.

“There has been a rise in individuals and syndicates indulging in fraudulent claim filings, leading to a challenging environment for investigators,” says former Delhi Police commissioner Neeraj Kumar. Individual investigators were facing more difficulties while doing their job as compared to specialized firms operating in this area, he added. “There are countless cases where investigators looking into death claims have been attacked. For the last two years, the number of criminals involved in filing fraudulent claims has almost doubled,” he said. Estimates from life insurers also show that

“Investigators would now be asked to play a major role in detecting frauds before the stipulated three-year period, so that such policies can be cancelled.

Life insurance companies need to be more vigilant now.”

—Ashok Sarin, a senior official with a private life insurer

REALITY CHECK V Manickam, secretary-general of the Life Insurance Council fears a rise of false claims as a result of the new amendment

INDIA LEGAL July 31, 2015

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ACTS & BILLS/ Insurance Act 1938

there has been a 20-30 percent increase in fraudulent claims.

Kumar said that abroad, insurers use data analytics to identify transactions and processes that require closer scrutiny.

“But that does not happen in India. It must, because there have been several cases where former insurance agents have been involved in fraudulent claims,” he said.

WAKE-UP CALL FM Arun Jaitley wants insurance companies to be more careful; Former Delhi police commissioner Neeraj Kumar feels investigators have a tough time ahead

With the revised Insurance Bill proposing that no claim can be repudiated after three years of the policy being in force, even if a fraud is detected, the investigators can do little, say insurers.

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July 31, 2015

ORGANIZED GANGS Thankfully, the insurance sector has woken up to this menace, which includes claims from non-existent persons, which are generated by organized groups operating across the country. Investigators are worried, ostensibly because there is not too much cash in the business. Based on the size of the sum assured, investigators are paid anything from `15,000 to `1,50,000 to verify a claim.

If the insured sum is huge, only then do verification fees go up.

Kumar said he had reports that organized groups operating in many pockets of north India had expanded their business into southern states. And acts of violence continue throughout the year.

The head of risks and claims in a private life insurance company, who spoke on conditions of anonymity, said he had encountered cases where the investigator was threatened to give a report in favor of the claim being passed. “In many cases, such incidents are not even reported by the investigating official. He simply resigns, citing some flimsy reason. We do not know what the real case is,” adds Kumar.

Consider the legalities in case of a death claim. Here, a claimant must submit the written intimation as soon as possible to enable the insurance company to start processing the claim. The claim intimation should consist of basic information such as

policy number, name of the insured, date of death, cause of death, place of death and the name of the claimant. If there is need for further investigation, then the company informs the family.

Now, how would this work under the new amendment? With the revised Insurance Bill proposing that no claim can be repudiated after three years of the policy being in force, even if a fraud is detected, the investigators can do little, say insurers.

CLOSE SCRUTINY Ashok Sarin, a senior official with a large private life insurer, says companies will now begin investigations into insurance policies and policy-holders even before a claim is filed, so that potential malpractices can be preempted. “Now, investigators would be asked to play a major role in detecting frauds before the stipulated three-year period, so that such policies can be cancelled,” added Sarin. So even though no life insurance policy can be called in question on the ground of mis-statement or wrong disclosure after two years of the policy coming into force, if the insurer is able to prove that the claim was fraudulent, it need not be passed. In short, it means India’s 24 insurance companies must quickly start sharing their database. “Life insurance companies need to be more vigilant now,” stresses Sarin.

With banks getting benefits from CIBIL, this proposed fraud-monitoring mechanism will help insurance companies get all details of customers and detect any fraud in disclosure and claims by policy-holders. The database could also help the council to study claim patterns.

Sudhin Roy Chowdhury, former member, IRDA, said if by 2020, India aims to achieve insurance penetration of 5 per cent—equivalent to garnering $1 trillion premium—then insurance companies must stress on better use of analytics to raise efficiency. “There will be a need for a robust underwriting process so that all issues are flagged before the policy inception. The insurer will have three years to raise any objections regarding the insured declarations,” adds Roy Chowdhury. If that happens, the amendment should be a welcome change for genuine policy-holders. IL

SPOTLIGHT/ Mob Violence

LAW OF THE

Increasing incidences of mob fury have shown India as an intolerant nation, where acts of impropriety invite immediate retribution and death in some cases. Why not let the courts mete out justice?

By Bikram Vohra

“The whole thing becomes like this evil enchantment from a fairy tale, but you’re made to believe the spell can never be broken.”

—Jess C Scott, Heart’s Blood

L

YNCH them. String them up. Tie them to a post and larrup the life out of them. Parade them naked and beat them with sticks and pelt them with stones. Instant justice, like instant coffee, is now the new muscle flex of power, exercised through the filters of politicians, sarpanches, religious zealots, corrupt police, self-styled keepers of the conscience and the mob (any of us) wishing to cleanse itself on the chosen sacrifice. All very pagan really but very much 21st century in India, where tacit approval for the shredding of a life in retribution of a transgression, real, imagined and often conveniently concocted, is given by the state, by the keepers of the law and by the breathless excitement and righteousness of the man on the street.

How can you fault him? He is only protecting that street, his mohallah, his village, his town, his caste, his creed, his honor, the general well-being. All these options and more are tied precariously together by the rusted guilt of neglect over centuries for Anthony Lawrence

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July 31, 2015

JUNGLE “JUSTICE” HASTENED, JUSTICE DENIED A massive mob dragged an alleged rapist from the Dimapur jail and beat him to death in March 2015

allowing the virus of social misconduct and imbalance to enter the national bloodstream.

The modern spiral was aptly reflected a couple of weeks ago in the killing of a school director in Patna after the bodies of two students were found in a canal near the school.

The frenzied mob found a suitable target, did an on-the-spot trial by jury and marched forth to do gory battle.

That the director may have had nothing to do with it nor was he given an opportunity to defend himself did not enter the equation.

The rage was justice served hot and meted out by a bunch of indolent teenagers (as opposed to the parents of the students), enjoying the thrill of the killing spree. Better than lolling against a lamp post at the local mall.

Such incidents are invariably accompanied by looting, burning of public property and a general free for all. What fun.

SPURRED BY PIETY The beginnings of every such cycle are usually benign and well-meant. We have sieved the traumas of the past through our mental piercings and created a new juice for “tear

around the top and pour” justice. After all, since piety was our spur, we cannot be challenged for impropriety.

Modern vigilantism, borne out of rape and assaults on women, has made for a perfect canvas for this new sport. It has become so easy to justify lashing out as a member of the mob. There is a mesmerizing sense of morbidity, safety in numbers, a slim chance of being held accountable and fame on the screen at the end of it.

The argument is easy to sell. It’s not as if anyone is helping us. The police are inept.

The politicians venal and corrupt. The judiciary creaking under the weight of its backlog.

The system entirely against us. Our daughters are in jeopardy, the demon is at the gate, we have to get this show on the road.

The eye-for-an-eye justice is the precursor to an open house. But when the police rape, when the protectors of societies become the invaders, can we preach to the mob?

HURTLE FOR TRPs That television has propelled the nation to do the dirty and win itself those dirt-encrusted 15 minutes of fame, made legendary by Andy Warhol is a given. Careless, totally without scruples or any sense of responsibility and ready to put the gory on a pedestal in the INDIA LEGAL July 31, 2015

43

SPOTLIGHT/ Mob Violence

quickly swallowed by the hubris that gratuitous violence spawns. The victim deserved it, didn’t he?

Righting the wrongs of history had to be done by crashing the applecart on its other side. There was also something deliciously evil about satisfying a long-frozen primeval urge for fame through shock. So, what started off as the projection of a man protecting his castle and his family turned into a national pastime. All we needed was a candidate for the purification and we could atone through this surrogate. If he died he asked for it.

MAJORITY MENTALITY (Above) Nigerian nationals come under attack at a Metro station in Delhi in 2014; (right) a protest against the spate of attacks on people from north-eastern states residing in Delhi

hurtle for TRPs, TV channels have sought the worst of every tribe to speak for the rest. It now does this pulpit-pounding incessantly, the modern drumbeat of a war that is just starting. Some years ago, bestselling author Arthur Hailey wrote a book on the creation of news by media so that scoops could be headlined and thereby, boost circulations. Making the news to break was molded into a corporate blueprint. Have no doubt. India has entered that realm. The spin on these horrific assaults is insidious.

It is also so gratifying. We can kill with impunity, feel good about it and having destroyed a life, make the world a better place.

Victor victorius.

Sherlock Holmes in Arthur Conan Doyle’s The Adventure of Charles Augustus Milverton, says: “The message was always subliminal. We had to save ourselves. The pagan in us salivated. Any tendril of guilt was

44

July 31, 2015

BAYING FOR BLOOD In an inflamed atmosphere, anyone can be pointed at and if you shout “there he goes, that’s him” loud enough, the mob will bay for his blood.

Whether he committed the foul deed is now a technicality. It does not really count.

Even the media doesn’t care to confirm the facts. The body count is more important.

Finding the corpse innocent would wreck the story. And for those who do not see it as it is, we have only just begun....

Woody Guthrie in the Vigilante Man asks: “Well, what is a vigilante man?

Tell me, what is a vigilante man?

Has he got a gun and a club in his hand?

Is that a vigilante man?”

Look through the list of atrocities in the recent past and see the common link. Normal people doing a normal day’s work so severely licensed by social media that they go for the kill. You can almost visualize their blood-drenched jaws drooling crimson with misplaced pride. They do not even realize how ghoulish they have become. The internet spreads the message instantly and news and rumor are now dispensed, with scalding immediacy and with equal import.

As the “rape” syndrome lost its novelty, the mob per se having tasted blood, now needed fresh kills. Strangers became a good choice. If you do not look like me, do not eat my food, speak in another tongue, you were the enemy. Deep-rooted prejudices tore through the fragile encasings of our minds.

State-sponsored chauvinism, so happily espoused on multiple microphones by public

figures, leapt of the stage and curdled over the past 30 years into hatred for the outsiders. Them and us gradually coalesced into a confrontation and is today central to collective violence. The series of assaults on those from north-eastern states and African students without a just cause, bear out the growing “popularity” of getting rid of the pests who are touted as the cause of our problems.

The frozen images are haunting. An African student cowering in a corner. A young man from Nagaland torn apart because he had the wrong shape of eyes and a funny hairstyle. A boy tied to a pole and beaten to pulp. But they don’t haunt. They just breed more of the same.

CIVILIAN AVATAR Psychologically, vigilantism is becoming an acceptable option in its civilian avatar because it is actually a government exercise that has been practiced on the slippery slope of expediency for decades. Plastic encounters with dacoits in the Chambal Valley, fulfilling quotas for arrests, bringing down smugglers, drug traffickers and breaking contraband and counterfeit money runners have been the norm for years, blurring the line between fact and fiction. On the other side of the coin, this sort of tyranny was exercised by panchayats grandstanding as custodians of morality.

Parading “shamed” women naked, exiling young lovers from different castes, ordering pain and punishment have all been part of our rural ethic and no one has ever questioned its ugliness.

On the third prong of this unholy trinity (besides sarpanches and the police) were the pantheon of earth-bound gurus who preached and practiced their forms of violence upon their disciples, increasing their assaults exponentially. Vigilantism to eliminate nonbelievers and those who would cry foul was tacitly encouraged as the inner sanctum’s fortunes grew. Even the armed forces, faced by guerrilla goons, have had to cleanse the areas of suspects with less than due process.

Tolerance for such terrorism against the individual has stayed high because it is fortified by fear of the unknown. We are taught that the “stranger” in our midst is a threat.

That he will take away our jobs, steal our

The here-and-now justice Instances of flawed notions of right and wrong, with horrifying results July 5, 2015 A woman in J&K was stripped and abused by five men in full view of a “deadwitted’’ public. One of the five was an army soldier. The police came late and so far has not much to say.

January 27, 2015 A 62-year-old NRI misbehaved with a Jharkhand passenger on-board a Mumbai-Bhubaneswar Indigo flight.

She went for him, taped him saying sorry. The video went viral. The NRI said it was a “mistake”. Was she right in sending out the video after complaining to the police?

December 2, 2014 A man was thrashed by the public in JP Nagar in Bengaluru. It was alleged that he was teasing women.

Onlookers went berserk. Earlier, in June 2014, two men in their midtwenties were roughed up, dragged and paraded naked by a mob after locals suspected they were thieves.

September 28, 2014 Three men of African origin were brutally attacked by a mob at Rajiv Chowk Metro Station in Delhi. They were accused of teasing women.

Outraged, the public went at them with belts, shoes, rods and glass.

Did their black identity make them easy targets?

January 29, 2014 Nido Tania, 20, from Arunachal Pradesh was murdered in Lajpat Nagar, Delhi, triggering widespread protests. Shopowners did not like his hairdo. Nido responded by breaking a glass door at the sweet shop. Four persons beat him on his head and face with a blunt object, killing him.

January 18, 2014 Somnath Bharti, then law minister of Delhi, conducted a vigilante-style raid on African women in a south Delhi locality, saying they were running a drug and prostitution racket and demanded their arrest. It is alleged that an African woman was even forced to give a urine sample in public for a drug test.

children, harm our women, destroy our way of life. We believe it because it is so potent in its capacity to dismiss charges against us for acts of omission and commission.

Daniel Nina, in the African Security Review, said: “My first contention is that fear of vigilantes gives the government an incentive to enforce law. A government needs to quell vigilantism because it is a threat to its monopoly on force, which is the basis of its power….”

GULABI GANG Even when a campaign has merit, it tends to spawn bastards. India’s Gulabi Gang made global headlines and its founder, Sampat Pal, found herself lionized. Her army of INDIA LEGAL July 31, 2015

45

SPOTLIGHT/ Mob Violence

Now, let the thought flow once again.

What about the young man from Manipur who was beaten into an inch of his life in hitech Bengaluru for not being able to speak Kannada? In the absence of an anti-racism legislation in India, he was unable to establish in the eyes of the law that the attack was racially motivated.

The same punishment as the rapist.

PINK PRIDE Gulabi Gang leader Sampat Pal leading her group during a protest against atrocities on women

Modern vigilantism, borne out of rape and assaults on women, has become so easy to justify. There is a mesmerizing sense of morbidity, safety in numbers and a slim chance of being held accountable.

46

July 31, 2015

20,000 women were fighting the good fight, resisting abusive husbands, taking to task crooked cops and demanding rape investigations. But gradually, others found in this exercise the kernel of blackmail. Women could now get even for past victimizations.

Men were on the run and in the cross-hairs of anyone who wished to accuse them of anything so far as it was shrill enough.

And while the element of gamesmanship was increasing, it was also, paradoxically, giving the grotesque members of society an excuse to continue their rampage.

Take the case of Santhosh Kumar, a 40year-old vendor who was caught raping a teenager. The crowd went for him and this was the report: “After dragging Kumar off the girl, the group stripped him, hacked off his genitals with a meat cleaver and threw them in the street—while filming it on their smart phones, of course. It’s a shocking, if increasingly familiar, story here in India, where communities are turning to brutal vigilantism after rapes, instead of pursuing justice through the law.”

Now hold that thought for a moment. Did he deserve to be punished severely? Of course, he did. But the eye-for-an-eye justice is the precursor to an open house. So herein lies the rub. When the police rape, when politicians and bureaucrats pay lip service, when the protectors of societies become the invaders, then, can we preach to the mob?

THIRSTY MOBS Move on. A wild-eyed mob of 2,000 in Andhra slaughtered 10 men suspected of theft. Just theft. What fun, pass the snacks, we got them, thirsty work, anyone has a Cola? Every such incident is glossed over by post-murder interviews, eyewitness accounts and the sour spotlight of the TV camera.

In Nagaland, a suspected rapist was pulled out of jail by several thousand people and beaten to death, after which they all went home for dinner. He was just a suspect under lock and key. Must have been a slow news day.

It is a helpless situation. There are just too many forces at play. And more innocent people will be robbed of justice, others railroaded and because whatever the provocation, the guilty will not get the harbor of the law.

Until the nation understands its fundamental duties, along with its fundamental rights, and the law is changed to make violence in public places a cognizable offence, nothing can change.

Till then, the rapist and the thief, the courageous woman who takes on the panchayat and offends it, the suspect and the man who takes his evening walk and finds himself in the wrong place at the wrong time, will be treated equally.

Sometimes, one feels the rope is slipping away. Where do you start correcting things in a nation that won’t pass an anti-racism law, where a sarpanch can order a rape as punishment for adultery, where reporting a crime is seen as the same as committing the crime.

There are no answers. No neat little compartments into which we can shove our theories and hope they fit into the slots. We have tasted blood and the feeding frenzy is on.

Martin Luther King Jr said: Injustice anywhere is a threat to justice everywhere. IL

NO I HOLDS BARRED

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EDUCATION/ IIM Bill

Degrees of Discontent

The HRD ministry’s attempt to wrest control of the IIMs comes in for much criticism. Will the government relent or go ahead with its “takeover” plan?

By Ajith Pillai

N

O Bible on management would recommend that an institution or business give up its independent decision-making process and allow itself to be micromanaged by the government. The controversial Draft Indian Institutes of Management (IIM) Bill, 2015, to be put up for parliament’s approval later this month, threatens to do just that—wrest autonomy from 13 premier management institutions across the country and bring them under the government’s oversight.

While recent press reports seem to suggest that the Union HRD Ministry piloting the legislation may suitably “tweak” it to accommodate the concerns of the various IIMs, officials of the ministry have indicated to India Legal that no major changes are expected. So, unless there is intervention from the very top (read the prime minister) or if the cabinet does not give its approval,

MILES COVERED IN EXCELLENCE Students of IIM-Bangalore, among the top-rated management institutes of the country

48

July 31, 2015

the legislation in its current form could well come up before parliament for approval during the monsoon session which begins on July 21.

Many in the top echelons of the IIMs see red at the prospect of the Bill getting the Parliamentary nod. In that event, they fear that the very character of the management institutes will be drastically altered and brand IIM’s credibility, built over the years, will slowly but surely take a hit. In fact, such is the concern that several objections have been raised against the proposed legislation in the last few weeks. According to former and serving faculty members, the government securing complete control over the IIMs would directly impact the independent functioning of the institutes.

P

rofessor Pankaj Chandra, former director, IIM-Bangalore, who had advised the UPA government during the first draft of the Bill, told India Legal: “The Bill is not what was agreed upon when we submitted our suggestions in 2013 after much deliberation. This is a revised version which incorporates all that we had objected to. In its current form it will bring in several levels of government interference in the functioning of the IIMs. In fact, under certain provisions of the proposed Bill, virtually every decision will require government approval. That is not how centres of excellence are run anywhere in the world.”

As per the new draft, all decisions relating to admissions, courses run, fee structure, new buildings, fellowships and scholarships at IIMs will have to be cleared by the HRD ministry.

This is as much the gist of what AM Naik, chairman of IIM-Ahmedabad Board of Governors, told reporters last month. He had pointed out that the independent functioning of the IIMs would be severely circumscribed if the Bill is implemented. “Our prime minister wishes to create world-class academic institutions, but this kind of regulation only pushes us in the opposite direction,” he had said. Naik also wrote to Union HRD Minister Smriti Irani on June 24, expressing the concerns of IIMs. To quote from his note to the minister: “On behalf of the Indian Institute of Management Ahmedabad (IIM-A), I would like to convey our deep reservations on the proposed IIM Bill that has been put up for public comments…. On a preliminary review of the Draft IIM Bill 2015, we are deeply concerned that some of the provisions of the Bill would seriously compromise the autonomy of the institute. We believe that developing a Bill that helps us achieve its vision requires a thorough and collaborative review process which needs adequate time and deliberation….”

Similar objections have been commu-

GLOBAL ASPIRATIONS British Prime Minister David Cameron interacting with IIM-Calcutta students during his India visit in November 2013

INDIA LEGAL July 31, 2015

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EDUCATION/ IIM Bill

media: “After nine months of silence, the government suddenly floated this new draft, which we saw just a few weeks back. It really caught us by surprise. The original Bill, which was approved by the IIMs and Ministry of HRD, has been completely changed, and rather made even worse than the original draft.”

T

IS IT GOVT’S BUSINESS? A letter from AM Naik, Chairman, IIM-Ahmedabad Board of Governors, to HRD Minister Smriti Irani, expressing his displeasure with the Draft Bill

50

July 31, 2015

nicated to the ministry by some other IIMs, including Bangalore, Calcutta and Lucknow.

According to IIM insiders, the new Bill, circulated two months ago by the HRD ministry took everyone by surprise. It was a clear departure from the Draft Bill discussed and agreed upon by the IIMs two years ago. In its new avatar the Draft Bill had all the sticking points that the institutes had earlier objected to. Naik articulated his frustration to the

hose who have objected to the Bill have taken particular umbrage over three sections of the new Bill which render the board of governors of the IIMs virtually powerless and toothless.

Should the new legislation be passed, all its decisions relating to admissions, courses run, fee structure, establishment of new buildings, fellowships and scholarships will have to be cleared by the HRD Ministry. The appointment of chairpersons and directors of the IIM boards will also be finalized by the government.

Not just that, each IIM director must give their assessment on the performance and contribution of the five highest paid employees in the institute to the HRD Ministry.

A senior faculty member of the IIM Lucknow says: “Every aspect of functioning has been covered by the Bill. It wrests total control with the government, reducing the IIMs to mere operating centres which will have to obey the diktats of the HRD Ministry in Delhi.”

Those who support the Bill point out that IIMs, though registered under the Indian Societies Registration Act, were created by the government in 1961 and are also funded by it. The institutes enjoyed dayto-day autonomy in their functioning till now although under the watch of the government which has been formulating broad policies for each of the IIMs. But this approach had to change with the number of institutes increasing from 3 to 13 and with 6 more on

WILL IT MANAGE THIS CRISIS? IIM-Ahmedabad, often ranked at the top in B-school listings

the anvil. The autonomy had to be codified by law and the role of the government defined.

Also, since government funding is involved, accountability had to be formalised and a uniform system had to be put in place to cover areas like appointments.

According to the government, the big takeaway for the IIMs as well as its students is that once the Bill becomes operational it will pave the way for these institutes to confer degrees instead of post-graduate diplomas that they currently award. This will not only attract foreign students to these Bschools but will help the institutes to set up campuses abroad for which a degree programme is essential. In short, the argument is that the Bill will only strengthen and help the IIMs grow.

But those opposed to the proposed legislation say that the degree is just a carrot offered by the government. According to Prof Chandra, if the Bill was all about giving IIMs the authority to grant degrees, why not focus on that and not on wresting control over the institutes.

He says: “If it was all about a degree then why not have a Bill that just says that and nothing else. In any case, even without a degree the IIM is accepted across the world for its excellence. The real intent of the Bill is

to facilitate the government takeover of the IIMs. If that happens then I fear that the IIMs will get bogged down by political and bureaucratic interference.”

M

eanwhile, over 400 private BSchools which offer post-graduate diploma courses in business management have also expressed their apprehensions over the proposed Bill. They fear that the courses they run will lose their grading if the IIMs begin to confer degrees.

Demanding a level-playing field, their plea is that a competent national body be constituted which will recognise private institutes and give them the authority to confer post-graduate management degrees like the IIMs. It’s been 10 years since the idea of a Bill to cover IIMs first started doing the rounds. It has courted controversy even since. As the Draft Bill awaits Cabinet approval, the HRD ministry still has time to make the proposed legislation a palatable one for all stakeholders. Otherwise, as JJ Irani, Chairman of the IIM-Lucknow Board, told the media: “There will be a revolt in the IIM system.”

Such seething discontent is the last thing one would want in the faculty of one of India’s premier management institutes. IL

“The Bill is not what was agreed upon when we submitted our suggestions in 2013 after much deliberation.

This is a revised version which incorporates all that we had objected to.”

— Prof Pankaj Chandra, former director, IIM-B

INDIA LEGAL July 31, 2015

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EDUCATION/ FTII

YUDHISHTHIR’S

Gajendra Chauhan’s controversial appointment as FTII chairman has been roundly criticized by reputed film personalities. Did he get the job because of his RSS-BJP links?

Prachi Bari in Pune

W

HAT began as a silent protest from the students of the Film and Television Institute of India (FTII) against the appointment of television actor Gajendra Chauhan for the post of the Chairman of FTII has now become a question of whether Pune will end up losing the institute forever or whether it will be handed over to Bollywood to run.

That would be most unfortunate since the institution, revered by those in cinema and intellectuals of all hues, has come to symbolize a facet of modern Indian culture that has resisted commercialization and found its place in world cinema. It is also the pride of Pune.

The I&B ministry’s response to the student protests has been to hold out a threat. It has suggested that the government is looking at shifting the ownership of the institute to Bollywood or a shutdown. The ministry is reportedly relying on the report of the Expenditure Reforms Commission, appointed in 2000 and headed by former finance

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July 31, 2015

secretary KP Geetha Krishnan. It had suggested handing over the institute to the film industry. The report also pointed out that the average cost of education for an FTII student funded by the state is in excess of `10 lakh per year and is a huge financial burden.

Reacting to reports, the students say that the I&B ministry was trying to deflect attention from the original issue of the arbitrary

STUBBORNNESS

appointment of Chauhan through selective statements. “During our meeting, neither the minister nor the secretary addressed the appointments’ issue even once. They simply reiterated the earlier promises of making the institute into one of national excellence but with no timeline. Now, they are quoting the apparent investment made on each student in terms of infrastructure and technology

which simply is like putting a price on culture and art,” says a student.

The appointment of Chauhan as FTII chairman has upset the students as well as many in the film industry. The serene FTII campus is boiling with rage and as the strike crosses a month, leading lights of the film industry—Jahnu Barua, Pallavi Joshi and Santosh Sivan—have resigned from their

FIGHTING FOR RIGHTS (L-R) FTII students protesting in Delhi against the appointment of Gajendra Chauhan

INDIA LEGAL July 31, 2015

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EDUCATION/ FTII

think what the students are asking for is illogical; they are not asking for the moon.

They are just asking for a fair chance, a fair opportunity, a good faculty, and a good syllabus. People look at the FTII graduates with so much respect.”

M

LACK OF FAITH (Above and right) The students have questioned Chauhan’s creative credentials and vision to guide FTII

Gajendra Chauhan was picked ahead of lyricist Gulzar and filmmakers Shyam Benegal and Adoor Gopalakrishnan, who were shortlisted by the I&B ministry for the chairman’s post. post as members of the FTII society. Even mainstream Bollywood stars are waking up to support the students.

Actor Ranbir Kapoor had this to say: “The appointment of the new FTII chairman has gone against the students’ wishes. I don’t

54

July 31, 2015

eanwhile, student representatives have also met officials of the I&B ministry in Delhi. But they came back dejected describing the talks as “inconclusive and unsatisfactory.” In fact, the FTII’s Students Association (FSA) said that the agitation that started on June 12 will continue.

“For us, this institution is what we believe in.

As artists, as creators of art, this institution has to retain its essence, which produced Oscar and national award winners like Resul Pookutty and Santosh Sivan. Thrusting a person (like Chauhan) whose only claim to fame is acting in a mythological series almost amounts to condemning this institution to death,” says Ajayan Adat, a sound engineering student at the FTII. With the protest gathering steam, film personalities like Kiran Rao, Saeed Mirza and Kundan Shah have come out to back the protesting students. Even Anupam Kher, a known BJP supporter, has candidly admitted on TV that Chauhan was a bad choice for the top job in FTII. The FSA maintains that it will continue its protest till Chauhan is replaced by a more suitable candidate. Chauhan was picked ahead of lyricist Gulzar and filmmakers Shyam Benegal and Adoor Gopalakrishnan, who were shortlisted by the ministry for the chairman’s post. Ever since his name was announced, FTII students have boycotted theory classes, practicals and diploma film work. They have expressed their disapproval through graffiti on the walls, which read: “Gajendra resign and leave”, “Dharmaraj

Yudhishthir? No Way!”, “Politics or FTII, both can’t go together”. As the protest escalated, a group of 70-80 students went from office to office forcing officials to stop work.

Harikrishnan Nachimuthu, who heads the students union, said they will intensify the protests if the appointment is not revoked.

The students have questioned Chauhan’s “creative credentials” and whether he has the vision to guide the institute, earlier helmed by internationally renowned luminaries like Girish Karnad, UR Ananthamurthy and Shyam Benegal. Many view the appointment as an attempt by the Narendra Modi-led BJP government to foist its right-wing agenda upon the institute.

What is the FTII Society?

The FTII functions as an autonomous body under the Ministry of Information and Broadcasting, Government of India, and is registered under the Societies’ Registration Act of 1860. The FTII Society is headed by a president who is a well-known personality from film and television, arts or academics. The Governing Council (GC) is constituted by election from among the members of the Society. The GC,

as the apex body of the FTII, is responsible for making all major policy decisions of the Institute in consonance with its aims and objectives.

The president of the society also functions as the chairman of each of the bodies, GC, the AC and the SFC. Shyam Benegal, Mrinal Sen, Adoor Gopalakrishnan, Mahesh Bhatt, Girish Karnad, Vinod Khanna and Prof U R Ananthamurthy have served as the chairman of the GC.

A

part from Chauhan’s appointment, students and progressive filmmakers are upset with the choice of the reconstituted FTII panel, where four of the eight are RSS propagandists.

These include Anagha Ghaisas, who has made documentary films on PM Narendra Modi; Narendra Pathak, a former president of the Maharashtra ABVP; Pranjlal Saikia, an office bearer of an RSS-linked organisation; and Rahul Solapurkar, closely associated with the BJP. The center, as of now, wants to brazen it out. The thinking is that it would be a loss of face if Chauhan is replaced. The controversy has already gathered momentum with top stars and filmmakers coming out in support of the students.

Those defending Chauhan have very little to say in his defence other than point out that he has acted in several films and TV serials.

Their other plea is that he should be given a chance since the FTII chairman’s job is purely administrative.

This is an argument few will buy since the person who heads the FTII will have to deal with international film-makers and actors.

Chauhan has not helped his case by declaring that “anything which sells is good cinema.”

He has also admitted that he has never attended an international film festival and is not well versed with world cinema.

Does that qualify him to head the FTII? The consensus is that he does not. But will the government hear the voice of reason? IL

LENDING HIS WEIGHT (left) Actor Anupam Kher has admitted on TV that Chauhan was a bad choice

INDIA LEGAL July 31, 2015

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LEGAL EYE/ Governor’s Power

WHAT IS GOVERNOR’S DISCRETION?

T

HE governor of a state has certain powers in his discretion, as opposed to functions which he can perform only “on the aid and advice of the council of ministers”.As the Constitution does not give any exhaustive list of such functions, the matter is generally left to convention and practice.

Thus, sending a report to the president under Article 356 of the constitution, and reserving bills for his consideration under Article 200 have been held to be some of the functions which the governor can exercise in his discretion.

In this context, the observations of a Lucknow Bench of the Allahabad High Court need to be noted. On June 22, while disposing a PIL (Ranjana Agnihotri vs State of Uttar Pradesh) seeking issue of mandamus to the governor to use his discretion while nominating members to the state’s legislative council, the Bench observed that he is not bound by the aid and advice of the council of ministers while nominating members. This observation could only be considered an obiter (made or said in passing) without any legal effect.

POWERS LAID DOWN The Sarkaria Commission, in its report to the central government in 1988, set out the matters where the governor has to act in his dis-

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NOMINATION TUSSLE UP Governor Ram Naik

The scope and ambit of the power of a governor has often been open to debate. A recent high court obiter has created a flutter as to the extent of his discretionary powers

By Vinay Rai

cretion. They are: In choosing the chief minister In testing the majority of the government in office In the dismissal of a chief minister In dissolving the legislative assembly In recommending president’s rule In reserving bills for the consideration of the president The commission clearly concluded that the governor has no discretionary power in the matter of nominations to the legislative council or the legislative assembly. If at the time of making a nomination, a ministry has either not been formed or has resigned or lost majority in the assembly, the governor should await the formation of a new ministry, the commission had recommended. (Paragraph 4.16.18).

Article 163 (2) leaves the scope of a governor’s discretion unlimited, as it lays down that if at any time any doubt arises whether he is required to act in his discretion, his decision shall be final. Further, the validity of anything done by him shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

Strangely, the brief order of the Lucknow Bench is silent on Article 163(2). The first case of exercise of discretion in regard to such nomination arose as early as in 1952, in Madras, when C Rajagopalachari was nominated to the legislative council and was then appointed chief minister. The issue later cropped up in Maharashtra.

The Sarkaria Commission in its 1988 report to the center clearly said that the governor has no discretionary power in nominations to the legislative council or the legislative assembly. state government told the Commission that the discretionary power needs to be curtailed, as the interpretation of the scope of this power is a potential threat to the autonomy of states and the right of the people to be governed by a responsible government.

The Sarkaria Commission, however, was of the view that the discretionary power of the governor as provided in Article 163 should be left untouched. When a governor finds that it will be constitutionally improper for him to accept the advice of his council of ministers, he should make every effort to persuade his ministers to adopt the correct course. He should exercise his discretionary power only as a last resort, the commission had recommended.

In Ranjana Agnihotri vs State of Uttar Pradesh, heard by Justices Arun Tandon and Anil Kumar, the petitioners sought a writ of mandamus directing the governor of the state not to act

CLARIFYING MATTERS Justice Rajinder Singh Sarkaria, head of the Sarkaria Commission

NO PROVISIONS The Sarkaria Commission was clear that Article 171 of the constitution does not provide for the exercise of discretion by the governor. Similarly, it said, no discretion is available to him to make a nomination to the legislative assembly under Article 333, which deals with representation of the AngloIndian community in the legislative assemblies of the states.

The Sarkaria Commission report mentions that state governments told the commission that the governor should exercise his discretion, in public interest, not arbitrarily, so as to subserve the purpose for which discretionary power has been conferred. One INDIA LEGAL July 31, 2015

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LEGAL EYE/ Governor’s Power

ing the elections for the legislature under the RP Act, 1951. While this issue may require the governor to use his discretion, the Bench asked the petitioners to approach the right forum to seek remedy, as the high court lacks jurisdiction to intervene in the matter.

The court noted that the practice of nomination by the governor on the aid and advice of the cabinet has continued only because a petition filed earlier, and raising a similar grievance, is still pending before the court.

(Writ Petition No.5722 (MB-PIL) of 2009).

The Bench asked the petitioners in the pending case to request the chief justice of the high court to constitute a special Bench to hear the matter expeditiously.

EARLY BIRD The governor’s discretion to nominate members for the legislative council was first used in 1952 to nominate C Rajagopalachari, in Madras

on the recommendations of the cabinet in the nomination of members to the legislative council of the state in exercise of powers conferred under Article 171 (3)(e) of the constitution.

NO INFLUENCE The petitioners contended that the governor, under this Article, makes nominations at his own discretion, and such discretion cannot be influenced by the cabinet, in any manner.

This is because the petitioners claimed that the latter part of Article 163(1) clarifies that in matters where the power is to be exercised by the governor on his own discretion, the advice of the council of ministers is neither required nor is it binding on him.

The petitioners contended that under Article 171(5), the governor of the state must examine as to whether the nominated member stands disqualified under provisions of the RP Act, 1951, or not. This is because it is settled law that what cannot be achieved directly cannot be achieved indirectly by getting nominated to the legislative council, by a person who stands disqualified from contest-

The court asked the petitioners to come back to it for seeking remedy as and when the governor makes nominations, and if they find there is infringement of constitutional provisions.

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PREMATURE PETITION The court, however, found the petition premature. As the court put it, the nomination of 1/3 members of the legislative council is made by the governor in his discretion of persons having special knowledge or practical experience in the fields prescribed. This discretion has to be exercised within the parameter of the constitution and not beyond it, the court held.

It also held that in the matter of nomination under Article 171(2)(e), the advice of the council of ministers is not binding upon the governor. He is to act on his own discretion, it said.

However, as the governor is still to nominate the members, the court could not prejudge his action, it suggested by implication.

The court asked the petitioners to come back to it for seeking remedy as and when the governor makes nominations, and if they find there is infringement of constitutional provisions. On the non-retirement of at least 1/3 members of the legislative council every two years as per Article 172 (2), the Lucknow bench expressed its inability to adjudicate the matter in the absence of relevant facts in the pleadings.

As the Bench has not given any immediate relief to the petitioners in this case, its observation regarding the use of discretion by the governor in the nominations to the legislative council can only be considered as obiter dicta. Shorn of any legal reasoning, it lacks even persuasive value. IL

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LEGAL EYE Rape/Controversial Judgment

No room for Compromise A Madras High Court order directing mediation between a rape victim and the accused has been overturned by the Supreme Court, which criticized it for its insensitivity

By Ramesh Menon

Illustration: Anthony Lawrence

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T

HREE weeks after directing a rape victim to mediate with her rapist, V Mohan, who was given interim bail on June 18, the Madras High Court recalled its order. This reversal came after the Supreme Court (SC) castigated another high court order, saying that any mediation in a rape case was illegal and against the dignity of women.

“It is a spectacular error on the part of the court to promote any such mediation,” the SC said. A bench, headed by Justice Dipak Misra, observed: “When a human frame is defiled, the ‘purest treasure’ is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honor which matters the most.”

The remark by Justice Misra was made in reference to another rape case, where he criticized a Madhya Pradesh High Court judge who had allowed Madan Lal, a rape accused, to enter into a compromise with the parents of a seven-year-old victim and had set aside the conviction and five-year sentence for the rape.

The Madras High Court order, passed by Justice P Devadass, had sparked outrage among activists and the legal fraternity. They felt that the rapist had agreed to the mediation, which would discuss marriage with the victim, as a ruse to escape payment of compensation and the seven-year sentence.

The verdict had led to protests in various parts of the country. Activists and legal experts argued that the rape victim, who is 22 years now, and the mother of a daughter born out of the rape, was not even asked if she wanted the mediation.

Justice Devadass revoked the order after the SC said that mediation and compromise

“In every judgment, the court must invoke constitutional principles. Something as blatantly unlawful as mediation in a rape case cannot be recommended. The core principle of equality, freedom to make decisions over one’s own body and mind must be invoked and protected.”

—Supreme Court advocate Karuna Nundy

should not be an option in rape cases.

On June 18, Justice Devadass had granted interim bail to Mohan, who had been sentenced to seven years imprisonment by the Mahila Court, Cuddalore, Tamil Nadu, for raping the girl who was 15 in 2008. She gave birth to her daughter on July 14, 2009.

A DNA test confirmed that the convict was the father. The accused was asked by the court to pay a compensation of `2 lakh to the victim. The accused appealed against the conviction and the sentence, contending that the victim was not a minor at the time of the rape and that it was consensual.

W

hile hearing the appeal of the accused, Justice Devadass highlighted the plight of the rape survivor’s child, saying that she had suffered for no fault of hers. He said that she was a bigger victim than the teen mother.

Justice Devadass referred to an earlier case where he had ordered the accused and the victim to go for mediation. It had a happy conclusion as they had agreed to marry, he said.

In media interviews, the 22-year-old victim had categorically stated that she had absolutely no intention of mediating with her rapist or marrying him.

In an interview with The Sunday Express, she had said: “Did the judge ever think how I suffered all these years? He knew I had a baby from that rape. And now this single order of his wants me to go through that suffering again.”

The court has cancelled the interim bail that was granted to the accused in the pres-

ent case and asked him to surrender to the court. The officer-in-charge of the mediation centre was ordered by the court to stop the parties from attending the mediation.

The accused has been asked by Justice Devadass to surrender before the Mahila Court in Cuddalore.

If he doesn’t, the trial court would issue a warrant to secure the accused and send him to the central prison at Cuddalore.

Though the victim had categorically made her views known about how she was against any mediation or compromise, the state legal services authority had sent her a letter to appear for mediation.

Over 100 lawyers had written to the chief justice against the order. “It is inappropriate that the judiciary should assume the role of the quintessential patriarch and condemn the survivor to the fate of accepting the rapist’s hand in marriage as a peace offering.

In allowing this decision, the high court is effacing the autonomy and agency of a single woman, her right to a partner of her choice and to be the authority where her body is concerned. In allowing this decision, justice has been bypassed,” the petition said.

SC advocate Karuna Nundy told India Legal that the withdrawal of the judgment asking for mediation was a welcome course correction. She said: “However, the thing to remember is that in every judgment, the court must invoke constitutional principles.

Something as blatantly unlawful as mediation in a rape case cannot be recommended.

The core principle of equality, freedom to make decisions over one’s own body and mind must be invoked and protected.” IL

“When a human frame is defiled, the 'purest treasure' is lost.

Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement….”

—Justice Dipak Misra of the Supreme Court

INDIA LEGAL July 31, 2015

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GLOBAL TRENDS/ Same Sex Marriage

Rainbow Revolution

The US Supreme Court’s landmark judgment on same sex marriage has given hope to many. When will India shed its anathema towards homosexuals and other marginalized groups?

By Roshini Seth

T

BUSTING MYTHS (Above) Roses laid before the bust of gay rights activist Harvey Milk in San Francisco as a mark of gratitude following the landmark judgment

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HE US Supreme Court (SC) in its landmark ruling on June 26, 2015, legalized same sex marriage. The court ruled 5-4 that the US constitution provides same-sex couples the right to marry. Earlier, gay and lesbian couples could marry in 36 states, but with this new ruling, same sex marriage will be legal in the remaining 14 states too.

The majority opinion of the nine-judge Bench held that “no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family”. They argued that the federal ban violates constitutional protections and discriminates against same-sex couples by preventing them from fully accessing “laws pertaining to social security, housing, taxes, criminal sanctions, copyright and veterans’ benefits”.

The SC ruling is the culmination of a long legal fight by gay rights advocates. The right

to marry a person of the same sex in the US was unthinkable a decade ago, but there have been steady gains in public approval for it in recent years. In 2004, Massachusetts became the first state to legalize gay marriage.

WINDS OF CHANGE Why has the public’s attitude changed so rapidly in the US and the western world? The declining influence of the Catholic Church and the emergence of a tolerant attitude towards homosexuality have been big factors.

In the recent Ireland referendum campaign on same sex marriage, the Church kept a low profile in marked contrast to its position on this issue. Most political parties in Europe and the US favor marriage equality, which has also resulted in the acceptance of LGBT communities and their rights.

However, there are a large number of critics too of the SC judgment, who say that the court has taken an “extraordinary step” in deciding not to allow states to decide the issue

Photos: UNI

for themselves as the constitution does not define marriage. They hold that even if samesex marriage is a good policy, it should have come from the elected representative of the people and not from the courts.

The four dissenting judges each filed a separate opinion. Chief Justice John Roberts wrote in his dissent that “if you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision, but do not celebrate the constitution. It had nothing to do with it”.

OPEN TO CHANGE (Above and left) The US verdict has been hailed by the LGBT community and is a harbinger of inclusiveness

GROUP MARRIAGE During these proceedings, more complex issues about human relationships emerged.

One was whether groups of more than two people would also have a constitutional right to marry. The liberal movement in the West is also insisting that consent should be the measure in sexual and romantic practice. As long as all parties involved in a marriage INDIA LEGAL July 31, 2015

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GLOBAL VIEW/ Same Sex Marriage

Landmark Moments 2001: Netherlands became the first country to legalize same-sex marriage 2003: The US SC ruled that it is unconstitutional to criminalize homosexuality 2004: Massachusetts became the first state in the US to legalize same-sex marriage 2015: Ireland became the first country to legalize same-sex marriage by referendum 20: Countries where same-sex marriage has been legalized 79: Countries where homosexuality is illegal 9: Nations where death penalty is imposed for same-sex intimacy 5: Nations which implement death penalty (Mauritania, Sudan, Iran, Saudi Arabia, Yemen)

CLOSED TO REASON The Indian apex court judgment on gay sex has disappointed LGBTs and activists

“The mood appears to be in favor of it. But it can be done only after widespread consultations and taking all views into account.”

—Union Law Minister DV Sadananda Gowda, on abolishing Section 377

are consenting adults, it should be made permissible.

Advocates of polygamy have started raising the demand that consent between adults who knowingly and willfully enter into a joint marriage contract, should be permitted to do so, according to the basic principles of personal liberty.

Although the American SC judgment has legal sanction only within the US, gay rights activists are celebrating it across the world.

Developments in the US reflect a fundamental change in public opinion and are bound to have a ripple effect in other countries too, especially those having a strong gay movement. There are expectations that even if same sex marriage is not allowed, open discrimination against the LGBT community will definitely end.

INDIAN STORY In India, the scene is altogether different. In December 2013, the SC upheld Section 377 of the IPC, which criminalizes homosexuality

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and places the LGBT community out of societal norms. The two-judge Bench held that it is up to parliament to decide whether to retain, amend or delete the Section.

After the adoption of the IPC in 1950, around 30 amendments were made to it, the most recent being in 2013, which specifically deals with sexual offenses and to which Section 377 belongs. The 172nd Law Commission Report specifically recommended deletion of this Section. The SC in its ruling has also clarified that the legislature is free to consider the desirability and propriety of Section 377, but parliament has so far not acted to delete or dilute Section 377.

Union Law Minister DV Sadananda Gowda recently said: “The mood appears to be in favor of it. But it can be done only after widespread consultations and taking all views into account.” Soon after the story broke, Gowda was going blue in the face saying that he had been misquoted.

Meanwhile, senior BJP leader, Subramanian Swamy issued a statement that his party position always has been that homosexuality is a genetic disorder. He added that homosexuals are genetically handicapped.

While sections of Indian society are becoming more inclusive and liberal, homophobia is still deeply entrenched. India still has a long way to go before LGBTs can be treated as equals and homosexuality is legalized. IL

INTERNATIONAL BRIEFS

Pakistan to discuss Hindu marriage law EVEN AFTER 67 years, the minority Hindus in Pakistan are without a marriage law. But the wait for the minority community, which accounts for 1.6 percent of the country’s population, could end soon. The National Assembly Standing Committee on Law, Justice and Human Rights, headed

by Chaudhry Muhammad Bashir Virk is set to review a private members bill, namely the Hindu

Singapore court releases teen blogger A 16-YEAR-OLD video blogger, Amos Yee, was released by a Singapore court after he spent a month in remand waiting for the judgment, according to The Straits Times.

Yee was found guilty on May 12 of making derogatory remarks against Christians and Singapore’s late prime minister, Lee Kuan Yew, in a video. He had uploaded an obscene image of Lee and former British premier Margaret Thatcher. Groups like The Human Rights Watch criticized Yee’s arrest. In a similar incident, the Supreme Court of Singapore fined blogger Alex Au in March for comments he had made about an ongoing challenge to the country’s anti-homosexuality laws.

Marriage Act 2014, jointly moved last year by Ramesh Lal of PPP and Dr Darshan of PML-N, and a similar government bill that had been tabled by Law Minister Pervaiz Rashid in March, this year. The two bills will establish rules and regulation for the registration of marriage and divorce for Pakistani Hindus.

Hindus in Pakistan do not even have a legal document as proof of marriage.

China’s new security law CHINA’S TOP legislature on July 8 adopted a sweeping new national security law touching on everything, from the military and economy to the environment, religion, the Internet, food safety and space exploration, saying the country needed to bolster legal measures in the face of “evergrowing security challenges”, LA Times reports. Critics fear the broadly worded law could be used to stifle dissent, reinforce censorship and impose new constraints on tech companies and other businesses.

24 Islamic State militants sentenced death.

AN IRAQI court sentenced 24 militants of the Islamic State (IS) group to death for killing Iraqi soldiers last year. The men were convicted for their role in the June 2014 massacre at Tikrit, in which 1,700 Iraqi soldiers died. However, all pleaded not guilty, insisting they had not taken part in the atrocities. They told the court that their confessions were coerced under torture by Iraqi officers. The Iraqi government arrested dozens of people suspected of involvement in the terrorist attack.

NOW scribe sentenced FOUR YEARS after a phone-hacking scandal sank the News of the World, the last of the tabloid's journalists to face charges has been sentenced. A judge on July 6 gave ex-features editor, Jules Stenson, a four-month suspended sentence, 200 hours community service and a $7,800 fine for conspiring to hack phones, ABC News reports. The 49year-old journalist broke down in tears as the judge told him he would not be going to prison. Judge John Saunders said Stenson was under intense pressure to get scoops when he turned to phone hacking, which was widespread at the newspaper. Stenson is the ninth journalist from NOW to be convicted.

INDIA LEGAL July 31, 2015

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GLOBAL TRENDS/ Greek Referendum

Greek Vote and the

EU Miscalculation Where European leaders went wrong in gauging the popular sentiment of this debt-ridden country

By George Friedman

I

n a result that should surprise no one, the Greeks voted to reject European demands for additional austerity measures as the price for providing funds to allow Greek banks to operate. There are three reasons this should have been no surprise. First, the ruling Coalition of the Radical Left, or Syriza party, is ruling because it has an understanding of the Greek mood. Second, the constant scorn and contempt that the European leadership heaped on the prime minister and finance minister convinced the Greeks not only that the scorn was meant for them as well but also that anyone so despised by the European leadership wasn’t all bad. Finally, and most important, the European leadership put the Greek voters in a position in which they had nothing to lose. The Greeks were left to choose between two forms of devastation—one that was immediate but possible to recover from, and one that was a longer-term strangulation with no exit.

MISTAKEN REASONING As the International Monetary Fund noted (while maintaining a very hard line on Greece), the Greeks cannot repay their loans

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or escape from their economic nightmare without a substantial restructuring of the Greek debt, including significant debt forgiveness and a willingness to create a multidecade solution. The IMF also made clear that increased austerity, apart from posing an impossible burden for the Greeks, will actually retard either a Greek recovery or debt repayment.

The Greeks knew this as well. What was

obvious is that austerity without radical restructuring would inevitably lead to default, if not now, then somewhere not too far down the line.

Focusing on pensions made the Europeans appear tough but was actually quite foolish. All of the austerity measures demanded would not have provided nearly enough money to repay debts without restructuring.

In due course, Greece would default, or the

debt would be restructured.

Since Europe’s leaders are not stupid, it is important to understand the game they were playing. They knew perfectly well the austerity measures were between irrelevant and damaging to debt repayment. They insisted on this battle at this time because they thought they would win it, and it was important for them to get Greece to capitulate for broader reasons.

THE DAY BELONGED TO NAYSAYERS Supporters of “No” in the Greek referendum cheer at the Trafalgar Square in London on July 4, indicating a growing support for the anti-austerity movement

INDIA LEGAL July 31, 2015

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GLOBAL TRENDS/ Greek Referendum

PEOPLE’S VOICE

Anti-austerity rally in front of Greek parliament in Athens on July 3

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July 31, 2015

No other EU country is in a condition as bad as Greece’s. However, a number of EU countries, particularly in Southern Europe, carry a debt burden they would like to renegotiate. They are doing better than Greece this year, but with persistent high unemployment—for example, 22.5 percent in Spain as of May—two things are not clear: first, what shape these countries will be in next year or the year after that, and second, what governments would come into office, and what the new governments’ positions would be.

Greece accounts for less than 2 percent of the European Union’s gross domestic product.

Italy and Spain are far more important. The problem of restructuring debt is, once it is done for one country, others will want to restructure as well. The European Union did not want to set any precedents for future crises or anti-EU governments.

In Greece, Europe’s leaders had a crisis and a hostile government. It was the perfect

place to take a stand, they thought. They became inflexible on debt restructuring, demanding prior increased austerity measures in a country where unemployment exceeded 25 percent and youth unemployment was over 50 percent.

VARYING COMPULSIONS The EU strategy in the past had been psychological: spreading fear about what default might mean, spreading fear of the consequences of leaving the eurozone and arguing that it was the European Union that lacked the ability to make concessions. Europe’s leaders demanded austerity measures but tied them to postponing repayments. They expected Greece to continue playing the game. They did not realize, for some reason, that Syriza came to power on a pledge to end the game. They thought that under pressure, the party would fold.

But Syriza couldn’t fold, and not just for

sing with the Greeks. They created a more dangerous situation for themselves.

political reasons. If Syriza betrayed its election pledge, as the European leadership was sure it would, the party would split and a new anti-European party would form in Greece. But on a deeper level, the Greeks simply could not give any more. With their economy in shambles and Europe insisting that the solution was not stimulus but austerity—an increasingly dubious claim—the Greeks were at the point where default, and the shortterm wrenching crisis that would ensue, would be worth the price.

The European leaders miscalculated. They thought Greece could be more flexible, and they wanted to demonstrate to any other country or party that might consider a similar maneuver in the future just what the cost would be. The Europeans feared the moral risk of compromi-

NEW THREATS First, in its treatment of Greece, the European Union has driven home—particularly to rising Euroskeptic parties—that it is merely a treaty organization and in no way a confederation, let alone a federation. Europe was a union so long as a member didn’t get into trouble. As I have said, the Greeks were irresponsible borrowing money. But the rest of Europe was irresponsible in lending it.

Indeed, the banks that lent the money knew perfectly well the condition Greece was in.

The idea that the Greeks pulled the wool over the bankers’ eyes is nonsense. The bankers wanted to make the loans because they made money off transactions. Plus, European institutions that bought the loans from them bailed out those that made the loans. The people who made the loans sold them to third parties, and the third parties sold them to EU institutions.

As for the Greeks, it was not the current government or the public that borrowed the money. And so the tale will help parties like Podemos in Spain and UKIP in the United Kingdom make the case against the European Union. The European Union appears both protective of banks and predatory to those who didn’t actually borrow.

Second, having played hardball, the

The IMF had made clear that increased austerity, apart from posing an impossible burden for the Greeks, will actually retard either a Greek recovery or debt repayment.

TOUGH CHOICES Pensioners queue up outside a branch of Alpha Bank in Athens to receive small part of their benefits, as banks remained closed before the referendum

INDIA LEGAL July 31, 2015

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GLOBAL TRENDS/ Greek Referendum

The constant scorn that the European leadership heaped on the prime minister and finance minister convinced the Greeks that the scorn was meant for them as well.

HARDSELLING EURO VISION German Chancellor Angela Merkel insisted on tough austerity measures as a condition for a Greek bail-out

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Europeans must either continue the game, incurring the criticism discussed above, or offer a compromise they wouldn’t offer prior to the Greek vote. One would lead to a view of the European Union as a potential enemy of nations that fall on hard times, while the latter would cost the bloc credibility in showdowns to come.

It is likely that the Europeans will continue discussions with Greece, but they will be playing with a much weaker hand. The Greek voters have, in effect, called their bluff.

It is interesting how the European leaders maneuvered themselves into this position.

Part of it was that they could not imagine the Greek government not yielding to the European Union, Germany and the rest. Part of it was that they could not imagine the Greeks not understanding what default would mean to them.

The European leaders did not take the Greeks’ considerations seriously. For the Greeks, there were two issues. The first issue was how they would be more likely to get the deal they needed. It was not by begging but by convincing the Europeans they were ready to walk—a tactic anyone who has bargained in the eastern Mediterranean knows.

Second, it is necessary to be prepared to walk and not simply bluff it. Syriza campaigned on the idea that Greece would not leave the eurozone but that the government would use a “no” vote on the referendum to negotiate a better deal with EU leaders.

The EU leadership was convinced that the Greeks were bluffing, while the Greeks knew that with the stakes this high, they could not afford to bluff. But the Greeks also knew, from watching other countries, that while default would create a massive short-term liquidity crisis in Greece, with currency controls and a new currency under the control of the Greek government, it would be possible to move beyond the crisis before the sense of embattlement dissolves. Many countries do

better in short, intense crises than they do in ordinary times. The Greeks repelled an Italian invasion in October 1940, and the Germans didn’t complete their conquest until May 1941. I have no idea what Greece’s short-term ability to rally is today, but Syriza is willing to bet on it.

GREXIT AND GREECE’S OPTIONS If Greece withdraws from the European Union, its impact on the euro will be trivial.

There are those who claim that it would be catastrophic to the euro, but I don’t see why.

What might be extremely dangerous is leaving the euro and surviving, if not flourishing.

The Greeks are currently fixated on the European Union as a source of money, and there is an assumption that they will be forced out of the global financial markets if they default. But that isn’t obvious.

Greece has three alternative sources of money. The first is Russia. The Greeks and the Russians have had a relationship going back to at least the 1970s. Now the Russians are looking for leverage to use against the Europeans and Americans. The Russians are having hard times but not as hard as a couple of months ago, and Greece is a strategic

The Greeks were irresponsible borrowing money. But the rest of Europe was irresponsible in lending it. The banks that lent the money knew perfectly well the condition Greece was in.

prize. The Greeks and the Russians have talked and the results of the talks are murky.

The BRICS (Brazil, Russia, India, China and South Africa) summit began July 6 in Russia, and the Greeks are sitting in as observers— and possibly angling for some sort of deal.

Publicly, Russia has said it will not give a direct loan to Greece but will take advantage of the crisis to acquire hard assets in Greece and a commitment on the Turkish Stream pipeline project. However, bailing out Greece would give Russia a golden opportunity to put a spoke in NATO operations and reassert itself somewhere other than Ukraine.

In Central Europe, the view is that Russia and Greece have had an understanding for several months about a bailout, which could be why the Greeks have acted with such bravado.

Another, though less likely, source of funds for Greece is China and some of its partners. Working alone or with others to help the Greeks would not be a foolish move on their part, given that it would certainly create regional influence at a relative low cost —mere tens of billions. However, it could come with the political cost of alienating a large portion of the European Union, making

Chinese assistance a slight possibility.

Finally, there are American hedge funds and private equity firms. They are cash-rich because of European, Chinese and Middle Eastern money searching for safety and are facing near-zero percent interest rates. Many of them have taken wilder risks than this.

The US government might not discourage them, either, because it would be far more concerned about Russian or Chinese influence in the eastern Mediterranean.

Having shed its debt to Europe and weathered the genuinely difficult months after default, Greece might be an interesting investment opportunity. We know from Argentina that when a country defaults, a wall is not created around it.

The European leaders have therefore backed themselves into the corner they didn’t want. If they hold their position, then they open the door to the idea that there is life after the European Union, and that is the one thought the EU leaders do not want validated. Therefore, it is likely that the Europeans, having discovered that Syriza is not prepared to submit to European diktat, will now negotiate a deal Greece can accept.

Behind all this, the Germans are considering the future of the European Union. They are less concerned about the euro or Greek debt than they are about the free trade zone that absorbs part of their massive exports.

With credit controls and default, Greece is one tiny market they lose. The last thing they want is for this to spread, or for Germany to be forced to pay for the privilege of saving it.

In many ways, therefore, our eyes should shift from Greece to Germany. It is at the heart of the EU leadership, and it is going to be calling the next shot—not for the good of the bloc, but for the good of Germany, which is backed into the same corner as the rest of the European Union. IL

THE RALLYING POINT Greek Prime Minister Alexis Tsipras, who galvanized the nation for a “No” vote, at a polling station on July 5, the Referendum Day

STOP PRESS Just a few days after the “No” referendum, Greece agreed to a harsher bailout than what the EU had originally proposed. In return for €86-billion bailout of the economy, Prime Minister Alexis Tsipras has agreed to abandon his anti-austerity promise. Greece has agreed to labor reforms, privatization of several sectors, increased taxation and reduced pension.

Tsipras, who came to power for his anti-austerity stance, now faces an imminent crisis, as opposition against him will grow.

—Courtesy Stratfor INDIA LEGAL July 31, 2015

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TERRORISM/ Islamic State

IS

CLO IN THE NAME OF FAITH The site of a blast at Imam Sadiq Mosque in Kuwait on June 26, executed by an IS suicide bomber

The insidious spread of ISIL globally seems to have brought it right up to India’s doors. With a hostile Pakistan and a shift in Afghanistan’s strategic ties, are we ready for this new phase in terrorism?

By Col R Hariharan

T

HERE are ominous signs that the IS is increasing its ability to destabilize nations across the world. It heralded the holy month of Ramadan with simultaneous terrorist attacks, killing nearly 70 people in Tunisia, Kuwait and France. The attackers were apparently responding to a Ramadan message from an IS spokesman who said: “Muslims, embark and hasten toward jehad. O mujahidin everywhere, rush and go to make Ramadan disasters for the infidels.”

IS attacks continue undeterred by thousands of airstrikes and conventional operations carried out by different armies. Despite drone attacks, battle-front setbacks and loss of territory in Syria and Iraq, the IS continues its march. The recent attacks show its innovative ability to decentralize terrorism through local youth brainwashed by its

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SING IN?

Photos: UNI

online propaganda beamed globally. They also indicate that the IS is poised to develop the ability to coordinate operations across nations. In both Tunisia and France, a lone gunman carried out the attack, while in Kuwait, it was a lone suicide bomber who killed 27 Shias in the Imam Sadiq mosque.

Many have researched why youth are attracted to jehadi terror groups. The core reasons are an anti-American mindset, coupled with Sunni sectarianism stoked by the fundamentalist idiom of the Wahabi sect. “Lone wolf � attacks by individuals seem to have become the specialty of IS terror operations. It is perhaps the most cost-effective way to spread terrorist attacks and is ideally suited for Europe and the US. Despite

advanced technologies, no nation can keep track of individuals whose jehadi sympathies only show up when they attack.

TARGET INDIA This can be a dangerous trend in a net-savvy environment like India. With internet access growing rapidly, special technology protocols will have to be devised to weed out and shortlist potential converts to jehadi terrorism.

Though for some time now, Muslim youth from India have been making a beeline to Syria via Turkey to join the IS, their numbers have remained small. But there are indications of IS presence in the country: the Madhya Pradesh police busted the first-ever cell affiliated to the IS in Ratlam in April

ANATHEMA TO MODERNITY Taliban attack on Afghan parliament in Kabul on June 22

INDIA LEGAL July 31, 2015

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TERRORISM/ Islamic State

WORRISOME WORLDVIEW Abu Bakr al-Baghdadi, the IS leader, who has been proclaimed as Caliph

What should be a matter of concern is the increasing presence of IS in Afghanistan. The recent attack on Afghanistan parliament is a strong reminder that jehadi terror threat remains undiminished in South Asia.

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2015. According to media reports, Imran Khan Muhammad Sharif, leader of the cell, was allegedly recruited online by Yusuf (actual name Muhammad Shafi Armar from Karnataka), leader of Indians fighting with the IS in Syria.

According to the police, Imran Khan, in online chats with Yusuf, sought his help to make explosive devices, procure weapons and select targets for attack. Yusuf asked Imran to record each operation for using it in IS’ online propaganda. Police are said to have recovered some chemicals for making explosive devices.

Imran’s profile, as the son of a government clerk and a college dropout, typifies the average IS recruit the world over—frustrated youth adrift in search of their moment of glory. They are drawn by IS propaganda which glorifies its achievements with gory visuals and stresses that “Jannat” awaits martyrs. It would be useful for security agencies to look for tell-tale signs of indoctrination through close interaction with community leaders. Vulnerable sections should be taken into confidence to spread general awareness of the threat to the whole community from such lone wolves.

Meanwhile, most of Europe is in a state of paranoia. This could affect their objective approach to decision-making, not only on jehadi terrorism and national security, but on a whole range of other sensitive national issues relating to Islamic minority, race relations and non-white immigration.

The French experience holds an important lesson for India because it has maintained social harmony despite its heterogeneous mix of people. Though jehadi terrorists have been trying to disrupt it by periodic attacks, the country has not allowed jehadi paranoia to color its war against terror. If it fails, jehadi terrorism will succeed in destabilizing the society by whipping up sectarian and anti-religious confrontation. As the IS comes nearer home, India is likely to be tested more often on this count.

Even as the IS has affiliates all over the world, Abu Bakr al-Baghdadi (also known as “Caliph” Ibrahim), the IS leader, now incapacitated with a back injury, boasts that the “Islamic State is thriving and expanding like any good multi-national with solid quarterlies. We now employ hundreds of thousands of functionaries, agents and operatives, to say nothing of the millions of affiliates to which

CHANGED EQUATIONS President Hamid Karzai (right) was a friend of India but under present President Ashraf Ghani, India has been sidelined

we have licensed our franchise rights. Only Walmart has grown at a comparable rate in so short a time, and I wouldn’t wish their corporate culture on the Badr Corps”.

POWER PLAY Al-Baghdadi’s global tactics to spread the IS brand is what makes it a dangerous threat to global stability, which has been hastened by the West’s strategies for regime changes in Libya, Egypt, Iraq and Syria. Actually, the West-sponsored proxy war for regime change of autocratic regimes by arming tribal and sectarian militias and irregulars, including those of Sunni extremism (the IS was one of them), provided many of these groups opportunities to gain access to modern weapons and warfare and establish their control over pockets of influence. The IS perhaps benefitted the most from this strategy to spread its control over a third of Syria and Iraq as well as parts of Libya. Though fully aware of the flaws in US strategy, President Obama seems to have run out of ideas.

In this charged environment, the IS has been drawn into a power struggle with the alAaeda (AQ). The Sunni sectarian idiom is also related to the IS’ competitive strategies

against the AQ to justify its self-styled caliphate. However, the world over, Shias and Sunnis have, by and large, lived amicably, particularly in India, which has the largest population of Shias next only to Iran. However, the spread of Islamic fundamentalism of the Wahabi kind has fanned latent sectarian differences in South Asia. Shias in Pakistan have been the favorite target of AQ affiliates and a few hundred of them have perished at the hands of the Taliban, with the state taking little action to curb them.

The confrontation between the IS and rival jehadi groups such as the AQ has continued, particularly in Syria, home turf of the IS. This has sent a strong message to AQ’s Syrian affiliate, Nusra Front, which had been enjoying some successes. Their relationship with the IS had been uneasy after the proclamation of the Caliphate. So, probably, the time for an overt conflict between the two jehadi groups is nearing.

CLOSER HOME But what should be of concern to India is the increasing presence of IS in Afghanistan, where the elected government of President Ashraf Ghani is facing increasing attacks INDIA LEGAL July 31, 2015

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TERRORISM/ Islamic State

DARK REMINDERS Lashkar-e-Taiba, which carried out the Mumbai terror attack, remains a big threat to India

In real terms, there is no change in the US attitude of ignoring Pakistan as the source of India’s transnational terrorist threat.

India has to fight its war on jehadi terrorism and deal with Pakistan on its own terms.

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from the Taliban. The recent daring Taliban terrorist attack on the Afghanistan parliament while it was in session is a strong reminder that jehadi terror threat remains undiminished in South Asia.

In fact, this threat has increased in Afghanistan. According to a UN report, in the first four months this year, 3,000 civilians have been killed or injured in jehadi terror attacks in Afghanistan, up 16 percent for the same period last year. In particular, Kabul has become more vulnerable to attacks against foreigners and embassies.

According to the US State Department’s Country Report on Terrorism 2014 released on June 19, 2015: “A number of these attacks were planned and launched from safe havens in Pakistan. Afghan National Security Forces (ANSF) provided security throughout most of Afghanistan as the transition to full Afghan leadership on security continued and US and Coalition Forces (CF) continued to draw down during 2014. The ANSF and CF, in partnership, took aggressive action against terrorist elements in Afghanistan, especially in Kabul, and in many of the eastern and northern provinces.”

The resurgence of the Taliban comes at a time when President Ghani is trying to mend

fences with Pakistan to fight Taliban terrorism; at the same time, he has entered into closer strategic relations with China in preference to India, Afghanistan’s traditional strategic partner.

DRIFTING APART This is impacting India’s plans in Afghanistan; it has already pruned its mega $10.8 billion Hajigak iron ore mine development and infrastructure project, conceived in November 2011, to just $2.9 billion. It has also revived its plans to further develop the Chabahar Port in Iran to provide an alternate strategic link to Afghanistan and Central Asia and as a strategic counterpoise to China-aided Gwadar Port in Pakistan. These strategic plans could be jeopardized with the worsening terrorist situation in Afghanistan, as perhaps for the first time, India is virtually excluded in its strategic make-up by design.

According to a recent Reuters report, fighters allied to the IS have seized large areas in Afghanistan for the first time. It quotes eye-witness accounts in Nanganahar province saying the IS was scorching out poppy fields to prevent the funding of Taliban’s fight against the government.

Unlike the Taliban who force villagers to feed

Lone wolves have become the specialty of IS terror operations. This can be dangerous in a net-savvy environment like India. We’ll have to devise technology to weed out potential converts to jehadi terrorism. them, the IS has come with lots of cash and spends it on food and for luring the youth to join them. So power struggle between the IS and the Taliban in Afghanistan would probably happen sooner than later.

However, India should not underestimate the Taliban threat. Though the Tehrik-eTaliban Pakistan (TTP) suffered setbacks due to Pakistan army operations last year, the Haqqani Network, a Taliban affiliate, continues to be a powerful entity. In September 2014, AQ leader Zawahiri announced the creation of a separate wing for India, including Kashmir, to wage jehad. AQ wants to portray Prime Minister Narendra Modi as an enemy of Islam.

LET THREAT And India-specific terror group Lashkar-eTaiba (LeT) which carried out the attack on the parliament on December 13, 2001, and the 26/11 terrorist attacks in Mumbai, remains intact and is ready to operate with impunity against India from bases in Pakistan. Despite all the well-wishers in India and Pakistan for peace and amity, the Pakistan government is either unwilling to bite the bullet or powerless to curb the use of its territory as a base for attacks on India.

While the US terrorism report said that “India remained a target of terrorist attacks” and referred to AQ’s announcement of a new branch in the Indian subcontinent, it pussy-

footed Pakistan’s culpability saying: “Indian authorities continued to blame Pakistan for supporting terrorists operating in Jammu and Kashmir”. In real terms, there is no change in the US attitude of ignoring Pakistan as the source of India’s transnational terrorist threat. All talk of counter-terrorism cooperation with the US would, therefore, be limited to information sharing and some joint training activity and nothing more.

India cannot expect the US to help in reining in Pakistan’s use of terrorism as a strategic tool against India.

The moral of the story is that India has to fight its war on jehadi terrorism and deal with Pakistan on its own terms. Recently, IS flags, along with Pakistani ones were displayed in a recent separatist rally in Kashmir at the start of Ramadan. While the BJP spokesman said Indian agencies “knew the IS might spread its hold in India as well,” and that the NDA government “has made sure that this never happens…ISIS will not be able to gain a foothold in India,” the GOC of 16 Corps, Lt General KH Singh, said that the IS was trying to get a foothold in India.

In the war on terror, one can never be too ready. But how alert is the intelligence apparatus to the jehadists at our gates? IL

ATTACKING KEY INSTITUTIONS The December 2001 attack on parliament

—Col Hariharan is associated with the Chennai Centre for China Studies and the South Asia Analysis Group INDIA LEGAL July 31, 2015

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HEALTH/ RO Technology

Money down the drain?

The RO water purification industry was rattled recently when a petition was filed before the National Green Tribunal questioning its tall claims

By Dinesh C Sharma

UNFOUNDED CLAIMS? Kent RO Systems Limited claims that its water purifiers do not waste water

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T

HE Maggi controversy has shown how our kitchens are increasingly being governed by national laws and regulations or their absence thereof. Just as stringent provisions of the Food Safety and Standards Act have dramatically purged kitchen shelves of “junk food”, serious questions are now being asked about the water we drink in the absence of regulation on household water purification systems.

This lack of regulation has serious implications for health as well as the environment.

A petition has been filed before the National Green Tribunal (NGT) questioning the feasibility of reverse osmosis (RO) technology on the ground that the process results in 80 percent wastage of water and demineralization of filtered water. The tribunal has issued

notices to the Ministry of Water Resources, the Central Pollution Control Board, Ministry of Environment and Forests, as well as the Water Quality India Association. All respondents have been asked to file replies within two weeks, and the petition has been posted for hearing on August 4 before a Bench headed by Justice Swatanter Kumar.

HUGE WASTAGE Making a case against RO filters, Sharad Tiwari, general secretary of Noida-based voluntary body, Friends, pointed out in his petition that “large quantities of water are being wasted as RO systems cannot convert around 80 percent of the water into potable water.

For each liter of filtered water, the domestic filter dumps 3 to 4 liters as waste. This waste water can be used for non-consumptive purposes like floor cleaning and toilet flushing,

but it is not easy to collect waste water all the time”.

Due to the absence of any regulatory restrictions, the petition alleges, “manufacturers are cashing on consumer sentiments by making tall claims like turning drain water into pristine potable water”.

Invoking provisions of the Water (Prevention & Control of Pollution) Act, 1974, the petition says it is the responsibility of official agencies like state pollution control boards to survey different areas under their jurisdiction, collect water samples, test them to see if sewage or industrial effluents are contaminating water supplies and take necessary steps to ensure potable water supply to citizens. “The respondent has been ignoring the Act itself and no steps have been taken, though by the way of RO systems, water pollution is increasing everyday considering the quantity of water waste coming from the RO filters,” it adds.

Broadly speaking, it is the duty of the state to supply potable drinking water to people as an extension of Article 47 of the constitution, which lays down that “it is the primary duty of the state to raise the level of nutrition and the standard of living of its people and to improve public health”. By forcing people to opt for household water treatment systems such as RO, the state is being negligent.

FLEECING CONSUMERS Water and consumer experts point out that water purification systems in India operate in a regulatory vacuum. “In the absence of any regulation, all kinds of water filters based on different technologies are being sold in India and consumers are being fleeced,” says Bejon Misra, a consumer rights expert.

Earlier, ceramic filters, iodine-based gravity and iodine-based faucet-mounted filters were popular. Now the market has been captured by RO devices.

In the US, the Environment Protection Agency (EPA) has developed standards and protocols for testing microbial purifiers.

India does not have any equivalent mechanism that lays down minimum standards or requirements for water filters. The Bureau of Indian Standards has guidelines covering

ultra-violet units and ceramic candle filter units, but it regulates only materials and fabrication of devices. IS:7402 lays down microbial performance standards, requiring filtered water to be bacteria-free when the unit is challenged with a set number of Eschericia coli. Generally, the standards do not specify removal/inactivation requirements of all microbial pathogens in water. Moreover, unlike the standard for bottled water, compliance with these standards is entirely voluntary. Drinking water specifications have been laid down in IS:10500, which prescribes essential and desirable characteristics of potable drinking water supplied through pipelines by water utilities. “Although private sources of drinking water may be outside the jurisdiction of public health and water supply authorities, such supplies should still be of potable quality,” the standards manual says. It does not specifically cover home water purification devices.

The larger issue is the quality of water supplied by water utilities in Indian cities and whether they can vouch for contamination-free distribution networks. “The water supplied by Delhi Jal Board (DJB), for instance, does not really require purification at home. But because even DJB is unable to give assurance of the quality, RO water companies have taken advantage of that,” explains Himanshu Thakkar, water expert and convener of South Asia Network on

OFFERING LEEWAY The state has failed to provide potable drinking water, resulting in demand for ROs

“RO removes essential minerals such as calcium, potassium, sodium and magnesium.

The filtered water thus becomes a dangerous extracting agent when consumed as it extracts vital minerals from the intestines, liver and kidneys, creating an imbalance within the body.”

—A water expert INDIA LEGAL July 31, 2015

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HEALTH/ RO Technology

COLOSSAL WASTE RO companies suggest that water thrown out

by ROs can be used for gardening and other purposes

Water and consumer experts point out that water purification systems in India operate in a regulatory vacuum. India does not have any mechanism laying down standards for water filters.

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Dams, Rivers and People. “RO systems wasting excessive amounts of water need to be banned. But before this can be done, NGT and the government need to work towards ensuring that water utilities are able to provide assured quality of water and that there is a credible redressal system to hold people to account.” In the meantime, Thakkar said, the government can fix norms so that the wastage is minimized and even RO-refused water can be used and not just drained out.

NERVOUS INDUSTRY Meanwhile, the NGT proceedings and chances of a likely regulation have rattled the water filter industry. Kent RO Systems Limited—which is the largest-selling RO brand in India—issued a statement claiming that it has developed “no water wastage technology RO purifiers”. At the same time, it has got the Indian Medical Association (IMA) to endorse its purifiers. “IMA has evaluated KENT RO+UV purifiers and have validated the claim that KENT RO+UV purifiers makes purer than boiled water and prevent diseases,” the company claimed, forgetting that IMA is not a certifying agency for water quality nor does it have any expertise in this field. Incidentally, BJP MP and actress Hema Malini is a brand ambassador of Kent and has been actively promoting the use of water ATMs based on RO technology.

Experts, however, do not buy Kent’s claims. “RO system by definition has certain refuse, so I wonder how their RO has no

water wastage,” asks Thakkar.

Another expert said on condition of anonymity that it is misleading to say that water is not wasted in Kent RO. “The rejected water from the RO system is highly mineralized and contains bacteria and viruses.

This water is stored in a separate tank, which they claim may be used for floor washing, etc,” he said. Usually, impurities in the form of suspended and dissolved solids are found in water. These can be removed by filters, whereas dissolved impurities of calcium, potassium, sodium, magnesium, etc, are essential minerals. “It is necessary to retain these nutrients in the water. RO removes these minerals also. The filtered RO water thus becomes a dangerous extracting agent in the human body when consumed. Since it contains no minerals, it extracts vital minerals from the intestines, liver and kidneys, creating an imbalance within the body,” the expert explained.

However, Manoj Mishra, convener of Yamuna Jiye Abhiyan, says that while “such technology-based, high energy input and wasteful methods of water cleaning are clearly undesirable, there might be some situations where, depending on the extent of pollutants in the water, such measures might be unavoidable”. He further suggests that the NGT can direct the government for policy interventions so that “the gullible public doesn’t fall victim to industry overreach for profit motive”.

RO technology was originally developed for desalination of sea water for using it for industrial purposes. Even in the Middle East where large desalination plants are installed, desalinated water is used only for industrial purposes and horticulture, while the bulk of drinking water requirements are met through imported bottled water.

The petition before NGT could open up larger issues relating to drinking water supplies in India, though it primarily targets RO technology. The issue needs to be examined in view of regulation, technology feasibility, health, role of water utilities and growing commoditization and privatization of water.

Access to safe drinking water is a basic human right, and it is the job of the government to ensure that every citizen gets it. IL

CAMPUS UPDATE

NLU Jodhpur to organize 2nd Alumni meet NATIONAL LAW UNIVERSITY, Jodhpur, will hold an alumni meet on October 3 this year. It will be the second such meet there. An alumni meet is always a special event for students as they go down memory lane and relive their younger days. The University will be sending out personal invitations to all previous students. A large number of them are expected to attend.

NALSAR to host moot court competition NALSAR University of Law, in collaboration with National Foundation for Corporate Governance, is going to host the 4th Moot Court Competition from August 14 to 16 in Hyderabad.

Eastern Book Company and SCC online, a legal database, are also col-

laborating with NALSAR for it. The Moot Competition is being conducted to increase interest in the fast-evolving field of corporate law. Associates and senior associates of law firms will judge the Moot, while the final will be judged by Partners, a leading law firm.

NALSAR students have excelled in mooting at the national and international level. NALSAR also won the extremely prestigious Willem C Vis International Commercial Arbitration Moot Court Competition in Vienna.

Amity Law School to conduct symposium on “Competition Law” AMITY LAW SCHOOL, NOIDA, will hold a national symposium on “Competition Law in India” on August 21, 2015. The symposium will stress on the objective of Competition Law to help maximize consumer welfare by promoting competition by offering better quality products at lower prices. The organizing committee is inviting academic and policy papers on areas like “Competition Law and Abuse of Dominant Position”, “Anti-trust Laws” and “Competition Law and Consumer Welfare”. All authors who get selected for the symposium will be given certificates, while the best paper will be given a cash prize.

Legal Aid Clinic THE District Legal Service Authority, Gautam Budh Nagar, has given permission to needy and weaker sections of society to use the Legal Aid Clinic set up at Galgotias University. This Clinic was set up there in collaboration with UP State Legal Service Authority. The Clinic was inaugurated by Justice Dipak Mishra of the Supreme Court on April 26, 2014. The Clinic conducts programs to create legal awareness among people and also has a 24-hour helpline.

INDIA LEGAL July 31, 2015

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PEOPLE / Children on the Edge

FLEEING FROM DEATH A Palestinian boy runs away from Israeli soldiers during clashes.

It came following a protest against the Jewish settlement of Qadomem, in the West Bank.

FEAR IN THE AIR Boys hesitatingly walk behind patrolling soldiers in Bujumbura in Burundi

BLEAK FUTURE A Palestinian boy sits in his house, which witnesses said was damaged in an Israeli air strike, in Gaza city

HEAVY BURDEN A boy carries whatever belongings remain, walking over the rubble of damaged buildings in the al-Kalaseh neighborhood of Aleppo

ENDLESS WAIT Afghan children patiently wait for aid near a landslide site at the Argo district in Badakhshan province

— Compiled by Kh Manglembi Devi Photos: UNI

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