India legal 31 May 2015 by India Legal

NDIA EGAL I L AMMAâ&#x20AC;&#x2122;S VICTORY: The startling verdict

NJAC: Judiciary, executive HERITAGE TAG: Caught continue to spar 8 between tangled laws 54

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May 31, 2015

KING CAN

`100

WHY IS THE LAW DIFFERENT FOR HIM AND FOR THE COMMON MAN? 24 ALSO NOOSE OVER NGOS?: RSS emerges as the biggest one, while others battle for survival 36

CLASSIFIED DOCUMENTS: Why are Govts wary of the truth? 44

LETTER FROM THE EDITOR

INDERJIT BADHWAR

LAW FOR THE LAWLESS

his issue of India Legal deals with celebs and their trials, be they film stars or politicians, both with legions of emotional fans for whom moral propriety matters little. In two cases, we see two different sides of the legal system—one where it worked the way it should and one, where it didn’t. In superstar Salman Khan’s case, the Indian legal system delivered justice superfast in a case of accident where he was accused of running over five people and killing one 13 years back. In the other case, one wondered what justice had been done, with former chief minister of Tamil Nadu being acquitted in a disproportionate assets (DA) case. Let’s take the first one. The whole of last week, the media was abuzz with the quick relief Salman got from the Mumbai High Court for a horrendous crime he committed, wherein not only was he driving intoxicated and didn’t have a driving license but where he killed one pavement dweller. Bollywood personalities were shamelessly and irrationally on his side. Naturally; crores were riding on him and they couldn’t afford to antagonize bhai. However, the question to ask is whether this preferential treatment and alacrity would be given to ordinary people? The overcrowding in our jails with lakhs and lakhs of undertrials shows that life is very unfair to those who are poor and without contacts. While all these are fair observations, one of our writers, Shailendra Singh, says that in this case, the legal system did indeed work. Within four hours, Salman was granted bail after he was sentenced to five years. As

the complete judgment was not given to him, the sentence was even suspended till the final disposal of the appeal in July 2015. Surely, such consideration and warmth should also be shown to the ordinary accused, who, instead, have to first surrender and then seek bail. If people are to take the legal system seriously, there should be a uniform mechanism for granting bail. The law should be the same for everybody. But of course, we aren’t living in a utopian world. On May 11, there was also the astounding news of AIADMK supremo J Jayalalithaa being acquitted by the Karnataka High Court in a DA case, clearing the stage for her political comeback and eventually, to the chair of chief minister. She was forced to step down last September after being found guilty of amassing illegal wealth. However, the Karnataka High Court said that the prosecution and the trial court had wrongly estimated the illegal wealth of the Jayalalithaa as being `53.60 crore, while she and her associates had accumulated only a “relatively small” amount of `2.82 crore of DA. This verdict also brought about the shocking spectacle of people dancing with joy and relief at this verdict, making one wonder, to what level can sycophancy and fanfare make one blind to their leader’s faults. Both these cases show how the legal system can restore or break the faith of ordinary people. And keeping their faith should be the ultimate goal of the judiciary. After all, who else can they turn to but the judiciary?

editor@indialegalonline.com INDIA LEGAL May 31, 2015

MAY 31, 2015

VOLUME. VIII

ISSUE. 18

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Niti Singh Assistant Editor Somi Das Art Director Anthony Lawrence Senior Visualizer Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar Verma CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari

LEAD

Have money, will roam free The swiftness with which Salman Khan got bail despite conviction shows how the system is at the beck and call of the high and mighty, write BIKRAM VOHRA and SHAILENDRA SINGH

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May 31, 2015

LEGAL EYE

Amma returns J Jayalalithaa stands acquitted in the multi-crore disproportionate assets case. V SESHADRI comments FOCUS

RSSâ&#x20AC;&#x2122;s template for NGOs As Left-leaning and anti-establishment NGOs struggle for survival, those under the RSS umbrella permeate every sphere of life. An analysis by BHAVDEEP KANG NATIONAL SECURITY

Stirring up the past Relatives of Netaji Bose demand declassification of documents pertaining to his disappearance. Why have Indian governments shied away from releasing certain documents into the public domain? SOMI DAS probes

32 36 44

GENDER

When No means Yes

While Indian society is still not ready to recognize marital rape as a crime, a debate on the issue signals the first baby steps to change, says PULKIT VERMA

PROBE

Another scam hits West Bengal

SPOTLIGHT

Line of control

As past and present jostle for space, the government steps in to create a more realistic demarcation zone than earlier drawn. MEHA MATHUR delves into the conflict

ACTS & BILLS

PROPERTY

Chhote Nawab’s troubles

If Pataudis fail to provide the documents proving their claim to estates of the last Bhopal Nawab, it could be declared enemy property. A report by RAKESH DIXIT

A curious case of a high court judge threatening Madras High Court chief justice with contempt of court. By Ramesh Menon .......................................20 Health woes of Okhla residents with the setting up of waste treatment plant, and Jindals’ apathy towards these concerns. By Shamir Reuben .....66 Gujarat High Court’s refusal to let a rape victim abort her fetus citing the scriptures, Indian culture and risk to life. By Kaushik Joshi ........76

62 REGULARS

Threat looms large While the government has abandoned its earlier plan of amending the Handloom Act to give access to power looms, traditional weavers still suffer great odds. RAMESH MENON writes about their struggle

An unprecedented face-off between the executive and judiciary threatens to derail NJAC even before it takes off. By V Seshadri................8 The lone fight of a victim of sexual harassment against Pachauri proceeds sluggishly. By Ramesh Menon......16

After Saradha, the state is beleaguered by the Rose Valley scam. SHANTANU GUHA RAY describes the modus operandi of the kingpins

ALSO

Edit........................................................................................3 Quote-Unquote.........................................................................6 Ringside......................................................................................7 Supreme Court..........................................................................12 National Briefs...........................................................................15 Courts....................................................................................... 22 More News (National)................................................................43 International Briefs.....................................................................49 Is That Legal..............................................................................75 People....................................................................................... 82

Cover Design: ANTHONY LAWRENCE Cover Photograph: GETTYIMAGES

INDIA LEGAL May 31, 2015

QUOTE-UNQUOTE

“She could not sleep for nights. You can understand her pain. Is it a crime to be the CM’s wife?” — Madhya Pradesh CM Shivraj Singh Chouhan, in his letter to Sonia Gandhi, seeking action against Digvijaya Singh for dragging his wife’s name in the Vyapam scam, in The Indian Express

“Govt is more concerned about managing headlines than putting policies in place.” — Former disinvestment minister Arun Shourie, on the Modi government

“Successive governments have tended to pay lip service to farmers’ needs… you can’t ignore them.” — Father of Green Revolution MS Swaminathan, in The Times of India

“Nobody can stop accidents. Whatever happens does so by God’s will. We can always meet with an accident..." — SAD minister Surjit Singh Rakhra, on the Moga molestation and murder case, in The Hindu

“Most of the people don’t cast me, thinking that she is good for only one thing.” — Former adult film star Sunny Leone, on why she is discriminated against in Bollywood, in India Today

May 31, 2015

“Suicide is crime, so is sleeping on footpath… 80 percent homeless film people struggled (and) achieved stardom but never slept on footpath.” — Singer Abhijeet Bhattacharya, tweeting his support for Salman Khan after he was convicted in a hit-and-run case

Aruna

VERDICT “Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.” — Martin Luther King, Jr

INDIA LEGAL May 31, 2015

SUPREME COURT/ National Judicial Appointments Commission

NJACâ&#x20AC;&#x2122;S BIRTH PANGS

Several hurdles have prevented the commission from taking off, including recusal by Justice JS Khehar, and CJI HL Dattu saying he canâ&#x20AC;&#x2122;t participate in it. At the root of the problem is independence of the judiciary By V Seshadri

HATEVER be the outcome of the Fourth Judges Case, the proceedings before the five-judge constitution bench led by Justice JS Khehar in the Supreme Court may well be remembered for high drama, suspense about the progress of the case itself and sharp cleavage among the major stakeholders. This is besides the serious hurdles which the bench had to navigate before it could even begin its work. The proceedings began on April 27. The grievance of conflict of interest against Justice Khehar, raised by some petitioners, was the first hurdle

May 31, 2015

to be resolved by the bench, which showed its determination to go ahead with the hearing of the case, overruling objections which appeared to lack substance. After hearing senior counsel argue for and against Justice Khehar's recusal, the bench put the issue to rest, promising to disclose its reasons later.

ust when it seemed that matters had settled down, Attorney-General (AG) Mukul Rohatgi presented another serious constitutional crisis which defied easy resolution: Chief Justice of India (CJI) HL Dattu’s letter to Prime Minister Narendra Modi expressing his inability to participate in the proceedings of the National Judicial Appointments Commission (NJAC) till the constitution bench upheld the validity of the law setting it up. Again, the bench heard arguments from senior counsel on the correctness of Justice Dattu’s refusal to participate in NJAC’s meetings to select two eminent persons, making it a non-starter despite its formal notification, and the bench’s refusal to stay its formation. Some of the counsel told the bench that the CJI’s refusal was unconstitutional, and the only remedy is a direction from the bench to the CJI to participate in the NJAC. As in the case of the recusal issue, the bench decided to downplay the CJI’s refusal, and deal with its consequences, as and when they arise. The bench wanted NJAC’s early formation in order to extend the tenures of additional judges in various high courts during the hearing of the case; with the NJAC’s non-formation, the bench would be faced with the dilemma of extending their tenures, as both the Supreme Court’s collegium and the NJAC are currently non-existent. The bench appeared undeterred by this legal vacuum in the mechanism to appoint judges, caused wholly by the refusal of the

CJI. The bench’s reluctance to decide the matter either way was not only because of its respect for the office of the CJI, but to avoid any distraction which it might have caused to its main task. The CJI’s refusal to participate in NJAC was surprising because of its timing, as he could have written his letter to the PM much earlier, and taken the constitution bench into confidence. But the proceedings before this bench left no one in doubt that the NJAC would have serious birth pangs because of the sword of Damocles hanging over it. If the bench were to strike down the NJAC law, it would cause acute embarrassment not only to the two eminent persons chosen to join it, but also to the CJI who would have played a role in selecting them. For members of the political class, who are ex-officio members of the NJAC, it would have been business as usual. As the bench began hearing the substantive arguments of the petitioners, interjected by the AG’s comments, the NJAC’s non-formation, without a stay from the bench, became an academic issue. But the bench was soon reminded of another dilemma: Can the five-judge

Dattu’s refusal to participate in NJAC was surprising because of its timing, as he could have written his letter to Modi much earlier, and taken the constitution bench into confidence. INDIA LEGAL May 31, 2015

SUPREME COURT/ National Judicial Appointments Commission

It appeared as though the center, having accepted defeat in the adversarial litigation with the petitioners, wanted to save face by a belated reference to an 11-judge bench.

AT LOGGERHEADS? (L-R) Attorney General Mukul Rohatgi and Justice JS Khehar

May 31, 2015

bench uphold the constitutionality of the NJAC without setting aside the judgment in the Second Judges Case (1993), and the advice tendered in the Third Judges Case (1998), both of which were decided by nine judges? As the five-judge bench cannot set aside the judgment or opinion delivered by a bench of nine judges, it cannot decide the NJAC matter fairly and objectively, as it would be bound by the previous decisions, and the result could only be declaring NJAC unconstitutional. The dilemma acquired substance as the petitioners’ counsel, one after the other, said that based on the Second and Third Judges cases, the Supreme Court had held that a preponderant role for the judiciary in the appointment process marked a key ingredi-

ent of its independence. This is part of the basic structure of the constitution, and therefore, out of bounds for parliament’s amendment process, as per the Supreme Court’s judgment in the Keshavananda Bharati case, decided by 13 judges in 1973. Insofar as the NJAC Act and the 99th Constitution Amendment diluted the preponderant role for the judiciary, by giving veto powers to any two of the six members (three of whom are non-judges), they argued that they were liable to be struck down.

t is, therefore, not surprising that the demand for referring the case to an 11-judge bench was vociferously made by the AG, even as the bench appeared determined to go ahead with the hearing as if the Second and Third Judges cases were not relevant to decide the validity of NJAC Act and the 99th Constitution Amendment. Justice Khehar repeatedly told the petitioners and the AG to confine themselves to the validity of the NJAC, independently of the Second and Third Judges cases. He said this because he observed that the argument that a preponderant role for the judiciary in the appointment process is essential to sustain its independence and therefore, the basic structure of the constitution had not been conclusively settled in the Second and Third Judges cases. Therefore, he suggested that it is not necessary to set aside the judgments in the Second and Third Judges cases, in order to decide the validity of NJAC law (as this was a new law and should be examined independently). If both the parties supported this view, then the bench could avoid referring the matter to an 11-judge bench, it seemed. The petitioners implicitly accepted Justice Khehar’s suggestion, but the AG did not, and insisted on an early resolution of his demand, to avoid waste of time. Well into the second day of his arguments, the AG had nothing to convince the bench that the NJAC Act and the 99th Constitution Amendment were consistent with the independence of judiciary. On the contrary, he questioned the basis of the Supreme Court’s decisions in the Second and Third Judges cases, and argued that a preponderant role for the judiciary in

the appointment process is not the only means to achieve independence of judiciary. It appeared as though the government, having conceded defeat in the adversarial litigation with the petitioners in the case, wanted to save face by seeking a belated reference to an 11-judge bench.

confident government and an AG would have straightaway tried to show that the NJAC and independence of judiciary are not inconsistent with each other, rather than invoke their defence only as a last resort after exhausting other legal strategies to delay an early judicial resolution of the uncertainty about the validity of its laws. Under pressure from the AG, who sought an immediate order from the bench on the reference issue, it asked him whether he agreed that the NJAC Act had wiped out the judgment of nine judges in the Second Judges case; if it did, then there was no need to refer the case to a larger bench to consider a judgment which is no longer alive. Having argued for the reference to a larger bench, the AG was unable to concede this, and suggested that the NJAC Act did not wipe out the primacy of the CJI as part of the independ-

The AG was exposed to the criticism that he was adopting the argument of the petitioners, all of whom equated the primacy of the CJI with the independence of the judiciary. ence of judiciary, which was the salient feature of the judgment in the Second Judges case. This left the AG and the government in a piquant situation, as this contradicted their initial stand that the NJAC replaces the mechanism of the collegium, introduced by the judgment in the Second Judges case. This also exposed the AG to the criticism that he was adopting the argument of the petitioners, all of whom equated the primacy of the CJI with the independence of the judiciary, as explained in the judgment in the Second Judges case. As the bench meandered beyond the threshold stage on May 7, it was clear that it would not yield to the AG easily by deciding on the reference issue one way or the other, but build the suspense about its outcome till the last day, as the merits of NJAC are inextricably linked with whether it has indeed wiped out what the nine judges had laid down in the Second Judges case on the independence of judiciary and the basic structure. IL

AGREEING TO DISAGREE? (Above) CJI Dattu (second from left) and President Pranab Mukherjee at the recently held judges conference in Delhi

INDIA LEGAL May 31, 2015

SUPREME COURT

ML Sharma’s plea rejected he plea of advocate ML Sharma—under legal scrutiny for his derogatory remarks against women in the BBC documentary India’s Daughter—that the Bar Council of India and the Supreme Court Bar Association should not take action against him on the issue, was turned down by the apex court. Sharma’s contention that the matter was already being heard by the apex court could not convince it. However, the court gave an assurance that it would listen to his point of view. Sharma was earlier granted two weeks time by the apex court to file his

Dismissed for fake documents person who got a job with Haryana Roadways in 1990 on the basis of faulty experience certificates was dismissed from service after 25 years by the Supreme Court. That the appointment was questioned by the Haryana government after such a long time did not deter the court from punishing Khub Ram. The court did not even consider his excellent service record while delivering the judgment. The apex court concurred with the high court judgment which had found Ram guilty. However, it failed to see any reason in the high court’s order that the person who could not be selected for the job because of Ram be awarded the job retrospectively from 1990 and given salary and other benefits from that year. The Haryana government was also pronounced guilty for letting Ram be on the job for such a long period. The court asked it to pay `3 lakh to the man who could not get the job due to Ram’s recruitment, pay up `1 lakh to the Supreme Court Mediation Center within two months and get back the entire money from officials responsible for glossing over the fake documents.

May 31, 2015

Alimony for live-in partner f a woman was in a live-in relationship with a man and has a child with him, she is entitled to get maintenance from him after he quit the relationship, the apex court ruled recently. The court was dealing with a

case in which a man had refused to give alimony to his nine-year live-in partner on the ground that he was already married before the relationship started, and as such, she was not his wife. He also put forward the argument that his live-in partner knew about his marital status but still agreed to enter into the relationship. He even cast aspersions on her character by calling her a “call girl”. The apex court took him to task for smearing the reputation of the woman and instead, blamed him for living with another woman when he was already married. It also upheld the Bombay High Court ruling that the man must pay maintenance allowance to his live-in partner and the child. The man had pleaded against the high court order.

response to a petition by its women lawyers’ body. The petition wanted that Sharma and another advocate, AP Singh, be barred from the apex court premises for their demeaning remarks against women in the documentary. The bar association of the apex court had also lent its support to the demand. A habitual petitioner in the apex court, ML Sharma also earned the wrath of the Supreme Court for making baseless and outrageous allegations against politicians in a PIL questioning the constitutional validity of the National Judicial Appointments Commission (NJAC). The court gave him seven days to clarify why he shouldn’t be debarred from filing PILs in future. Sharma had said in his PIL that all politicians were corrupt and MPs were criminals, inviting scathing condemnation from the constitutional bench hearing his petition. The bench refused to set the issue aside. Even though Sharma pleaded that he would delete the objectionable references, the court did not relent. Sharma’s penchant for making baseless allegations in his PILs has landed him in trouble before the court several times earlier too.

False pretences won’t help bserving that politicians might be getting admitted in hospitals for escaping legal proceedings or arrest, the apex court asked Rohtak superintendent of police (SP) and a medical director of a private hospital in Gurgaon to present themselves in court on July 8 for an explanation. The case pertained to a former Indian National Lok Dal MLA who was asked by the apex court to surrender before it in October 2013. The court had refused bail to him when he was accused in a random firing incident in Kalanaur, Rohtak district, in May. On being informed that the accused was seeking refuge in different hospitals to avoid surrender, the apex court sought a response from the Rohtak SP in January 2014.

The report gave details of his hospital stays and informed that he was admitted to a private hospital in Gurgaon from April 11, 2014. However, a medical certificate of the MLA produced by the Haryana government indicated that the MLA was in sound health to come to court on April 11, 2014.

Tobacco ban to stay he Bihar government got a shot in the arm over banning of all smokeless tobacco products in the state as the apex court stayed the Patna High Court interim order against the ban, for three months. The high court had debarred the state government from carrying out its November 2014 ban after hearing objections against it. The state government in its defense before the high court had pleaded that cases related to the matter and concerning other states were still to be taken up by the apex court, and thereafter, had approached it with a transfer petition on December 22, 2014. But the high court issued an interim order the following day, staying the ban. The order was contested by the state government in the apex court. The apex court will now hear the transfer petition of the Bihar government in July.

Life term for students his is a judgment that should be a “watch out” case for violence during college elections. Although the incident happened around 20 years back, the Supreme Court sentenced seven students to life imprisonment for killing a student leader in DAV College, Dehradun. His fault: he wanted to contest the elections and did not accede to his rival’s demand that he quit from the race. The court supported the same punishment meted out by the Uttarakhand High Court. It dismissed the reasons cited by the students that they simply wanted to make him agree to their demand and did not want to kill him. The court noted that they carried lethal weapons while on their way to meet the leader.

INDIA LEGAL May 31, 2015

SUPREME COURT

Abide by court’s order aking a painful observation that its orders were not being followed by high courts, the apex court wondered if the common man would ever abide by judiciary’s verdict if such precedents continue. The court expressed its displeasure over the lackadaisical attitude shown by the Karnataka High Court on recruiting judges despite orders from the apex court. The court had asked all high courts and states to appoint district judges for more than 2,000 vacancies on offer. The order was meant to address the issue of the monstrous number of pending cases. Taking a stern view of the apathetic attitude of the Karnataka High Court, the apex court warned it to get cracking on the issue.

Batting for “Bharat” he demand that India should be called “Bharat” for all official purposes attracted the attention of the apex court recently. A PIL filed on the issue pleaded that the court instruct the government to do so and even insisted that non-governmental organizations and corporate firms should follow suit. It also drew a reference to major suggestions for the country’s name that came up before the Constituent Assembly, of which “Bharat” was one of the options. The court agreed to look into the issue carefully and sought response from the center, the states and all union territories.

Death for rapists onsidering the gruesome nature of the crime, the apex court sent a cab driver and his male friend to the gallows for mercilessly raping and brutally killing a 22-year-old BPO employee inside her office pick-up cab in Pune in 2007. The court felt that such a punishment was needed to instil fear among people who may commit such a heinous offense in future. Pointing out that such people are a menace to the society, the court agreed with the verdict of the trial court and the Bombay High court in the case.

May 31, 2015

Action stayed against Shobhaa De riter Shobhaa De got a reprieve from the Supreme Court on the privilege motion notice slammed against her by the Maharashtra assembly. She had found fault (on Twitter) with the decision of the state government to ask multiplexes to screen Marathi movies during prime time in the state. The assembly wanted her to respond by April 28. The court found that De had only criticized the government and not the assembly, and stayed any proceeding on the privilege notice. De had pleaded against the order in the the apex court, saying the assembly order took away her right to freedom of speech as her comments

did not come in the way of the house proceedings. The court also asked the chairman and principal secretary of the Maharashtra Legislative Secretariat to reply to De’s petition within eight weeks.

Defamation law under scanner hile continuing its stand, the Supreme Court put a hold on defamation proceedings against Delhi Chief Minister Arvind Kejriwal in separate suits filed by Amit Sibal (son of senior Congressman Kapil Sibal) and Pawan Khera, former political secretary of Sheila Dikshit. The trial court was to hear the proceedings in the case. The court had done the same in criminal defamation cases filed by former BJP president Nitin Gadkari and an advocate, both against Kejriwal. The court is already examining whether defamation law needs to be decriminalized or not, and has sought a reply from the center. Even Kejriwal had submitted in court that the law hinders healthy and comprehensive debate on any issue and there was no need to make defamation an offense.

— Compiled by Prabir Biswas Illustrations: UdayShankar

NATIONAL BRIEFS

LS passes Juvenile Justice Bill THE controversial Juvenile Justice Amendment Bill got a green signal in the Lok Sabha after a prolonged debate. The Bill provides for juveniles between 16 and 18 years to be tried as adults if they commit any heinous crime. There is a provision in the Bill for the foster care of deserted, abandoned children and

GST crosses Lok Sabha barrier THE long awaited Goods and Services Tax (GST) Constitutional Amendment Bill has been passed by the Lok Sabha. GST is meant to solve the problem of a complex tax regime in the country. A single indirect tax will replace the many center and state-level taxes. The bill, which was in the making for 12 years, is expected to boost the economy and spur growth. Finance Minister Arun Jaitley said that GST will stimulate economic growth and trade, and after its implementation there will be no “tax on tax”. However, the Bill still needs to be cleared by the Rajya Sabha, where the government is outnumbered by the opposition. The Congress, which wanted to get the bill passed during its rule, has demanded that the government take cognizance of the changes it wants.

juveniles in conflict with law. Intercountry adoptions for people of Indian origin living in foreign soil have been given consideration in the Bill. Community-based open shelters and specialized adoption agencies have been planned in the Bill, which will also standardize the adoption process.

Land boundary agreement with Bangladesh WITH the intension of forging close ties with its immediate eastern neighbor, the Union government gave the go-ahead to the IndiaBangladesh Land Boundary Agreement, which includes the provision on exchange of enclaves by both countries. Press Information Bureau chief AP Frank Norhona said that the decision to amend the Land Boundary Agreement was taken at a cabinet meeting, chaired by Prime Minister Narendra Modi. Provisions in the Bill include exchange of

territories in Assam, West Bengal, Tripura, and Meghalaya. The decision to bring Assam in the deal was taken after the chief minister of Assam expressed his anger against the prime minister for discriminating against the state.

Relief to unorganized workers THE Delhi government has hiked minimum wages with the aim of providing financial relief to skilled, semiskilled and unskilled workers in the unorganized sector. According to the Ministry of Labor, Government of Delhi, the revised minimum wages for them have now been increased to `9,048, `10,010

and `10,998 respectively (from earlier `8,632, `9,542 and `10,478 respectively). Also, to ensure pension benefits to the unorganized sector, the government has started a new scheme called Delhi Swawlamban Yojana under the National Pension Scheme to provide them social security and capital.

Amendments in Anti- Corruption Bill THE Union government approved amendments in the Prevention of Corruption Act, 1988. The changes in the Act, while meeting the country’s obligation under international conventions, will fill the loopholes in the present Anti-Corruption Law. A slew of new measures have been introduced to cope with corrupt malpractices and curb bribery. Penal provisions have been increased from a minimum six months and maximum five years to a

minimum three years and maximum seven years respectively, to make the punishment more stringent. To contain the supply side of corruption, the ambit of the provision has been expanded. Definition of the word “gratification” now includes non-monetary gratification too. INDIA LEGAL May 31, 2015

COURTS/ Sexual Abuse Case/RK Pachauri

Veil of Silence Despite clear evidence, the case against this famous scientist crawls. Nothing has come out of the internal probe in TERI and the victim has not joined work. Is this how organizations sidetrack sexual harassment cases?

By Ramesh Menon

omen fighting sexual harassment often face an uphill task, especially if the man is someone of repute.Remember the sexual abuse case against RK Pachauri, former chairman of the Intergovernmental Panel on Climate Change (IPCC) and the director-general (DG) of The Energy and Resources Institute (TERI)? Remember how the media went for the â&#x20AC;&#x153;killâ&#x20AC;?, widely covering it after a researcher in the think tank filed a police complaint about being repeatedly sexually harassed by the TERI chief for the last two years? Pachauri moved court, restraining the media from reporting the matter, but a later court order struck it down. Pachauri got himself admitted to a hospital and promptly filed for anticipatory bail. As both the national and international media

May 31, 2015

SHOW OF SUPPORT (L-R) Lawyer Indira Jaising wants Pachauri to be removed as TERI DG, while Vrinda Grover has been approached by another victim

highlighted the case, he resigned from the UN climate change body. After gender activists like Kavita Krishnan and legal activists like Vrinda Grover demanded he quit TERI, he proceeded on indefinite leave. But after a flurry of screaming headlines and television talk shows, the media predictably forgot this story. This, despite the police complaint where the researcher attached detailed evidence in the form of emails and SMS and Whatsapp messages which eloquently exposed the sexual harassment she suffered at the hands of her immediate boss. It is another sexual abuse case that is dying a slow death. Pachauri later filed an application in the Delhi High Court asking permission to go abroad to attend the Global Water Summit in Athens. The court promptly turned it down, saying that it had earlier asked him to stay put in India and cooperate with the probe. OSTRICH-LIKE ATTITUDE Meanwhile, TERI’s Internal Complaints Committee has still not come out with a report on the incident. The victim had first filed an internal complaint on February 9, with details of how she had been sexually

harassed by her boss. On February 10, she was called by Pachauri and severely reprimanded. PK Aggarwal, head of HR, who was also on the committee, told the victim not to pursue the case. He was later removed when an all-woman team was constituted to probe the case. It comprised two TERI officials— Ranjana Saikia and Suruchi Bhadwal—and one external member, Sonal Matoo, lawyer and founder of NGO Helping Hands. Saikia, who is the presiding officer of the committee, told India Legal that she was not comfortable talking about the case. No one from TERI has yet called the victim to console or reassure her. She has gone on leave and wants to get back to work, but the atmosphere at TERI does not give her the confidence to do so. The TERI intranet also has messages directed against her that signal a hostile environment and the fact that the management is encouraging it. Can TERI’s internal inquiry come out with a fair and impactful report? After all, some of the colleagues, who were victimized by Pachauri or are crucial witnesses on what has been happening, are very apprehensive of speaking up since Pachauri continues as the DG. P Ramana Reddy, a former research

“I knew all along that women were being harassed by Pachauri at TERI as well as during his trips abroad. We must appreciate the girl who had the courage to complain.” —P Ramana Reddy, a former research associate at TERI

INDIA LEGAL May 31, 2015

COURTS/ Sexual Abuse Case/RK Pachauri

would not be possible within TERI as he continued to be the D-G and could be back any moment. She pointed out that it was for the organization to have filed a police complaint when they had heard of what had happened to her. But instead, the intranet of TERI was actually deriding her and praising its D-G.

AWE-INSPIRING CAREER Pachauri with UN Secretary-General Ban Ki-moon

No one from TERI has yet called the victim to console or reassure her. She has gone on leave and wants to get back to work, but the atmosphere at TERI does not give her the confidence to do so. 18

May 31, 2015

associate at TERI who worked from 1990-95, told India Legal: “The news of a sexual harassment case against Pachauri was no surprise to me. I knew all along that women were being harassed by Pachauri at TERI as well as during his trips abroad. He finally got caught. We must appreciate the girl who had the courage to complain, as many who could not tolerate the abuse, left. If any other male in TERI had committed such a grave crime, he would be in jail.” LEWD ADVANCES The victim also wrote to the Governing Council of TERI on April 3, pleading for justice. In her detailed letter, she said that she had joined the office of the D-G as a research associate attracted by the fact that she could follow her passion for research and academics. What followed was mental torture that came with Pachauri’s lewd advances, conversations laden with sexual innuendos and demeaning behavior. However, she has not heard from any member of the Governing Council, despite it having illustrious members like Deepak Parekh, chairman, HDFC; Naina Lal Kidwai, executive director, HSBC, and Kiran Mazumdar Shaw, managing director, Biocon Ltd. She feared that an impartial inquiry

REMOVE PACHAURI Indira Jaising, former additional solicitor general of India, also shot off a letter to Human Development Resource Minister Smriti Irani, seeking Pachauri’s removal as chancellor of TERI University. She wrote that in the light of the grave charges of sexual harassment leveled against him, it was highly improper that he should head an educational institution of advanced learning. Retaining him would send a message to students that such behavior from a chancellor is tolerated. It is imperative that the “UGC take note of these facts and call upon the founding society of the university to remove him as chancellor in accordance with the UGC rules and norms for acceptable conduct in public life,” she wrote. Irani did not respond to her letter. Jaising told India Legal that she was very disappointed that people of eminence on the Governing Council of TERI did not respond to the happenings in the organization. “In any organization, anyone accused of such a grave charge would have been suspended. But the TERI management only let him proceed on leave,” she lamented. Meanwhile, another former employee of TERI has approached lawyer Vrinda Grover, saying that she was similarly sexually harassed by Pachauri, while yet another woman with similar experiences approached Jaising. Sources told India Legal that the internal committee of TERI was also getting feelers of how the abuse had been going on for years. The dark secrets of sexual abuse at the posh TERI office in India Habitat Centre are threatening to tumble out. It might just give more women the courage to stand up against sexual harassment. IL

COURTS/ Gujarat/Lagaan

Relief for Aamir Khan Reacting to a frivolous complaint against the actor’s film, Lagaan, the Gujarat HC quashes an FIR against him and others By Kaushik Joshi

n a major relief to actor Aamir Khan, the Gujarat High Court on May 8, 2015, dropped criminal charges against him, his ex-wife Reena Dutta, director Ashutosh Gowariker and four others for the filming of Lagaan. Acting Chief Justice VM Sahai quashed criminal proceedings against them for allegations that they had caught a chinkara, a protected animal, and made it run in order to shoot a scene in the film and then killed it at a village in Kutch district. Lagaan was released in 2001 and almost six years later, an assistant conservator of forest, Forest Protection, Bhuj, initiated the proceedings against Khan and others for offenses punishable under the various provisions of The Wildlife (Protection) Act, 1972. It was alleged in the complaint that the film crew had demanded a chinkara for the shooting from the forest conservator of Bhuj. However, the request was rejected by the order of the chief conservator, Gandhinagar, in November, 1999. The chief judicial magistrate of Bhuj issued bailable warrants against Khan and others in March 2008. They then obtained a stay from the Gujarat High Court. The high court weighed the statement submitted by

Pankaj Khandpur, ex-creative director of Western Outdoor Media Technology, Mumbai, to the effect that “the entire sequence was by way of special effects and no real animals have ever been used”. Quashing the application, the chief justice noted: “I am of the considered opinion that this case falls in the category of rarest of rare cases as it led to insurmountable harassment, agony and pain to the petitioners as well as to their reputation only on the imagination of the complainant of unknown facts. There is no evidence, the complaint is false, frivolous, imaginary and absurd which is required to be quashed and set aside.” Public prosecutor Mitesh Amin strongly pleaded against quashing of the application. But the court observed that no live chinkara was used and the footage of the animal in the film was computer-generated. Expressing its displeasure at fictional complaints and the time it had to spend on them, the court observed: “It is hazardous, as a fictional criminal complaint has to be taken up by the court when a large number of real complaints are pending ... such frivolous complaints are eating into the time of the court and it does not look good on the part of the State.” IL INDIA LEGAL May 31, 2015

COURTS/ Madras High Court

A judge of the Madras High Court has broken all norms by threatening to slap a case against the chief justice apart from flashing the Dalit card to allege harassment By Ramesh Menon

Chief Justice Threatened I

T was unprecedented. Never before had a high court in India seen a parallel like this. The Madras High Court was plunged into an embarrassing crisis when Justice CS Karnan threatened to slap a case against Chief Justice Sanjay K Kaul of the Madras High Court, accusing him of interfering in his judicial work. Karnan also threatened to approach the National Scheduled Caste and Scheduled Tribe Commission to initiate a detailed inquiry against Justice Kaul for allegedly harassing him. He also said that if the chief justice interfered in his judicial process in this case, he would direct this Commission to set up an inquiry on Kaul for harassing a Dalit judge and get him booked under the SC/ST Atrocities Act. The trigger for this outburst was Kaul setting up a recruitment committee for selection

May 31, 2015

of civil judges, which comprised of Justices R Mala, D Hariparanthaman, R Sudhakar, N Kirubakaran and V Dhanapalan and the chairman of the Tamil Nadu Public Service Commission and other officers. They were to start interviewing candidates from April 15. Instituting suo motu proceedings, Karnan passed a judicial order questioning the inclusion of Justice Dhanapalan on the committee, alleging that he had produced bogus certificates of his bachelor and masters degrees in law. He said that this did not qualify him to conduct any of the interviews. That was not all. He said that two judges were from the same community and were related to each other and it would not seem that it was a fair selection process. He also stayed Kaulâ&#x20AC;&#x2122;s administrative order on the judicial appointments and also restrained the chairman of the Public Service commission from conducting the interviews. In his order, he said that two judges have to be from the minoritiesâ&#x20AC;&#x201D; one, a Muslim and the other, a Christian. As his order was then stayed by a division bench of Justices S Tamilvanan and CT Selvam, Karnan directed the Registry to place the matter before him on the judicial side on April 30. He then reiterated his earlier order and threatened contempt of court proceedings against Kaul. The Supreme Court moved swiftly, ordering Karnan to keep away from the process of

LEARNED FELLOWS AT WAR (L-R) Chief Justice Sanjay Kaul and Justice CS Karnan

recruitment of civil judges and restraining him from dealing with the matter. In doing so, the court averted a serious judicial crisis. The Supreme Court has now stayed the interim order passed by Karnan and restrained him from going ahead with proceedings relating to the suo motu petition before the high court where controversial directions were passed by him. All other matters shall not be interfered with by any person, authority or judges relating to appointment of junior judicial officers in Tamil Nadu, the court said. The Supreme Court bench comprising Chief Justice of India HL Dattu, Justice Arun Mishra and Justice Amitava Roy has stemmed indiscipline within the judiciary with this order that restrains judges from interfering in the process of recruitment initiated by the high court chief justice.

arnan has been in the eye of controversy before. In January 2014, he had walked into court when a special bench was hearing a matter and raised a negative murmur about the “maintenance of propriety in judicial proceedings”. Then too, he had engaged in a spat with the then Chief Justice RK Agarwal, accusing him of “discrimination and partisan treatment”. Karnan was to inaugurate a court complex in Karur district of Tamil Nadu when he was transferred to Sivaganga district. He complained of discrimination as he said he could not inaugurate it and it was done by another judge. He thought this was done to humiliate

him as he was a Dalit. Karnan shot off a letter to the president, prime minister, union law and home ministers and Dalit politicians like BSP chief Mayawati and LJP’s Ram Vilas Paswan. Karnan had reportedly barged into the chief justice’s chamber and hurled a volley of invectives at him. The chief justice then wrote to the then chief justice of India, P Sathasivam, saying that the conduct of Karnan “was not only unbecoming of a judge but also brings a bad name to the institution”. However, one fact that Karnan raised about a judge having a bogus degree must be enquired into. Over the last five years, as many as 41 complaints of forged degrees of judges have been received by the office of the Chief Justice of India. But no action has been taken. At one stage, it was said that the complaints had been rejected as it was anonymously dispatched. To even establish that the complaints are fake, it is only prudent to have an independent inquiry to establish its veracity ensuring the credibility of the judiciary. In other cases, the courts have taken action against bogus degree holders like Arun Kumar Mishra who was the chief engineer of the Uttar Pradesh State Industrial Development Corporation. The Allahabad High Court had ordered Mishra’s removal as he did not have a valid Class X marksheet or a BTech degree. But Mishra soon rode back to his official position due to an interim stay order from the Supreme Court against his removal from service by the Allahabad High Court. The case is still going on. IL

Karnan has raised questions about a judge having a bogus degree. Over the last five years, as many as 41 complaints of forged degrees of judges have been received by the office of the Chief Justice of India. But no action has been taken

INDIA LEGAL May 31, 2015

COURTS

CBI in the dock he Central Bureau of Investigation (CBI) was pulled up by a special court for its failure to confiscate the passport of industrialist and Congress leader Naveen Jindal after he was formally accused by the agency in the coal allocation case. Pointing out that discretionary powers vested with the agency for taking away passports of people chargesheeted could not be used arbitrarily, the court wanted to know whether the agency was indeed following a uniform policy on the issue. Noting that reasons for making

No STF action against MP governor GOVERNOR enjoys total protection from any criminal proceedings and the Special Task Force probing the Vyapam scam in Madhya Pradesh must erase the name of the state governor, Ram Naresh Yadav, the Madhya Pradesh high court ruled. The high court had already put hold on any action on the basis of an FIR launched against Yadav. The court, however, clarified that legal proceedings could be initiated against Yadav after he was no longer the governor. It asked the probing agency to ensure that sufficient care is taken to uphold the dignity of the governor’s office and procedures like recording his statement, asking for his physical presence in police stations or interrogating him must be done away with. The STF had filed an FIR against Yadav in February, slapping him with charges under different sections of IPC in the Vyapam scam. The governor had appealed against the task force’s action on the ground of immunity granted to him by the constitution.

May 31, 2015

an exception, if any, must be specified clearly in the case diary, the court asked the CBI to submit a copy of the policy guidelines followed by it within a month.

Hold beef ban law for awhile he Maharashtra government was restricted for three months by the Bombay High Court from taking forceful measures to implement its beef ban law. The court also rapped its knuckles for overturning a 30year-law “overnight”, without giving enough time to the people of the state to get rid of beef in their possession.

However, it didn’t grant an interim stay on the new law. Section 5D of the Maharashtra Animal Preservation (Amendment) Act, 1995, debars the people of the state from importing beef or having it at their disposal. If violated, it warrants a five-year jail term and a fine of `10,000. The court was hearing a clutch of petitions questioning the section. It ruled that no FIRs would be registered against people caught with beef during the period unless there is illegal slaughter. It also asked the authorities concerned not to find out whether people had beef with them or if they were having it in restaurants.

action to stop the construction of these buildings. Under the existing law, non-sanctioned buildings completed till June 1, 2014, are safe from legal action. The three municipal corporations of Delhi apprised it that 80 percent of buildings in the capital were extremely vulnerable to an earthquake of high intensity. The court asked them, including the New Delhi Municipal Council, to file a detailed report in 10 days on whether or not the stated policy on structural stability of buildings was being followed in the capital.

Unsafe buildings hit aking up petitions on unauthorized constructions in the capital, the Delhi Court pointed out that these would suffer irreparable damage in case an earthquake similar to the one in Nepal occurred. It showed concern over the government allowing these buildings and colonies to come up for cultivating a vote bank. The court sought to know from the corporations whether they were taking any

Reservation order faulty

he Patna High Court recently annulled the Bihar governmentâ&#x20AC;&#x2122;s 2012 order, which granted reservation benefits in promotions to Scheduled Caste and Scheduled Tribe employees in government services. The court was responding to a petition filed by a general category state government employee and others. It ruled that the order was unconstitutional and the state government had failed to take into account the consequences of such

a step on administrative efficiency. The high court also considered the fact that the state government had issued the order without enough facts and figures that could support its decision, and no survey was carried out to arrive at the conclusion. The apex court had clearly held in 2006 that reservation to SCs and STs in promotions was valid only if it was supported by concrete data and other evidence. The court felt that the apex court order was violated in this regard.

Protect places of worship oncerned at religious institutions being vandalized in the capital, the Delhi High Court sought a response from the center within four weeks on what it had done to protect them. The court was responding to a PIL that sought an SIT probe by Christians or members of the National Commission for Minorities on recent attacks. The center condemned the

PIL on the ground that it was only highlighting church attacks when the sacred places of other religions were also affected. It assured the court that an SIT was already probing the attacks. The court will hear the matter again on July 1 after the vacations.

Accused get bail in leakgate ix people accused in the leaking of classified documents from the petroleum ministry were granted conditional bail by a Delhi court. The court agreed to the plea of their counsels that another accused in the case, facing similar charges, was granted bail earlier, and the Official Secrets Act was not invoked against him. The accused who got bail are Shailesh Saxena of Reliance Industries Ltd, Vinay Kumar of Essar, Rishi Anand of Reliance ADAG, KK Nayak of Cairns India, former journo Santanu Saikia and a defense ministry worker, Virender. Another accused, Subhash Chandra of Jubilant Energy, was already out on bail. Each of the six had to pay a personal bond of `50,000 with a surety of the same amount. The executives were arrested by the crime branch in February in the case.

â&#x20AC;&#x201D; Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL May 31, 2015

LEAD/ Legal Eye / Salman Khan Case

FARCICAL Even after 13 years, victims of Salman Khan’s hit-and-run case have not been delivered justice. With the Mumbai High Court suspending a five-year jail sentence, their agony gets longer By Bikram Vohra UNI

JUDGMENT DAY Salman Khan leaves his house for the trial court in Mumbai

May 31, 2015

VER since Plato and Xenophon failed to defend their master Socrates in 399 BC for heresy, thus allowing 500 Athenians to judge him guilty and have him executed, justice per se, has been a negotiable instrument. And the quality of judges and lawyers is a major factor in the victory or defeat of the accused. Indian justice is mystifying when seen through the prism of an egalitarian democracy and echoes Shelley’s verse: “I have no hope nor health, nor peace within nor calm around.” Cloned from a colonial past and cornered by sheer volume, it has robbed most of the wretched and lost the right to a speedy trial. Over 2.8 million people await justice at this moment, a serpentine queue that boggles the mind. That it is elitist is not a major surprise. In independent India, since the day Maharashtra Governor Vijayalakshmi Pandit “forgave” Commander Nanavati in 1962 for shooting his wife’s lover, justice has always been up for grabs and impacted upon by political expediency. Nanavati shot businessman Prem Ahuja with his service revolver and was sentenced to life after a two-year trial. A petition to pardon him was moved by a Sindhi leader, Bhai Pratap, who was himself in a bit of hot water. The government was under pressure to let the officer go free to maintain the morale of the armed forces. He was finally released and left for Canada in a case where guilt was eclipsed by hi-octane emotional arm-twisting. Many others who have committed the same sort of crime are still in jail, have been hanged or died in incarceration with no one

PLAY? doing them any reverence. In the case of Salman Khan, we have a classic example of justice thwarted by the passage of time, so that when a legal caveat is finally announced, it sounds vindictive rather than the distilled result of litigation. The chasm between the deed and the verdict is so wide and so washed away by the torrent of water under the bridge that it almost seems anemic and ludicrous. That it then filters away through gaping loopholes and reliefs afforded to an accused in a lower court makes the whole issue academic and utterly pointless. A bond of `30,000 is furnished to keep him free. That is farcical but it is within the framework of the law. And there is rejoicing on the streets. Wherefore rejoice, what conquest brings them home except that the old girl’s blindfold slipped and the faceless dead don’t count. Back up a little. The public has no recollection of the accident or a faint one at best. The act is

A case for undertrials Salman

Khan was released by the Bombay High Court on a bail bond of `30,000. There are lakhs and lakhs of undertrials who are still in jails all over India. They get bail but can’t arrange the bail amount and are too poor to seek the services of lawyers to fight their cases. Most of them are charged with petty offenses and belong to very poor sections of society. Their cases are still to come up for

One cannot cavil over the right of Khan to obtain instant bail. If there is a provision in law, he has the right to use it. What one should express concern about is the inability to extend the same relief to a common man.

hearing in courts. could have been proved innocent and acquitted of charges had the trials taken place in time. Many of them are in jail for more than a decade. A large number of these undertrials remain in jail for a longer period as compared to the jail term they would have got in case of conviction. Many may eventually die in jails. Supreme Court’s directive as well as the home ministry’s advise to release such undertrials has made little difference. They

LEAD/ Legal Eye / Salman Khan Case

LONG DELAY (From right) Sabrina Lal, sister of Jessica Lal (far right), (Below) Relatives of Muslims killed in Hashimpura Rajeev Tyagi

blurred. The collective mind is baffled that if the evidence is so startlingly clear 13 years later, why was it not equally clear when the trial began and why has there been such inordinate delay getting these ducks in a row. The absent driver, his convenient reappearance and the suspiciously choreographed scenario of innocence would all have been validated and in focus if the psychological and legal statute of limitations was observed.

ow, sympathy creeps in and soaks the facts. He is a nice guy, he engages in charity, he has redeeming factors. None of these have any bearing. The three tenets for not delaying justice are universal even though they are not applied with the equality one expects. To save the accused anxiety, to avoid long imprisonment as an

May 31, 2015

undertrial and negate the possibility of the accused being exposed to time, diminishing his mental and physical capabilities. In Salman’s case, he fulfills the required parameters. Anxiety has been his partner all these years. He has technically been an undertrial and it is not his fault he was allowed to continue living his lifestyle by the law. In Category 3, of course, you are mentally and physically rubbed raw and exhausted by the sheer suspense of the unending case. That the system has turned all three elements into confetti and made them almost caricatures in any adversarial process cannot be denied. The fear of contempt of court silences the individual. The legal fraternity does not speak up with one voice and demand a review in which “justice delayed is justice denied” is lifted from its clichéd roots and confronted. In a perfect world who you are and the clout you have would be outside the purview of justice. But we do not live in a perfect world. And Khan will be “protected” by the system because it fits with the prevailing priorities. One cannot cavil over the right of Khan to obtain instant bail. If there is a provision in law, he has the right to use it. What one can express concern about (and should express) is the inability to extend the same relief to a common man. Here lies the rub. The country does not really care about the thousands of powerless men and women (and minors) awaiting trial. It is seen as the luck of the draw. With a violent police force

that engages in physical brutality for sport, the poor seldom get their day in court. Ergo, the miscarriage of justice has already begun and once that vehicle starts its sooty journey, there is nothing to stop it ramming the promised judicial process.

e might make pious whistling sounds and whine a bit but it does not add up to a spit in the wind. If we admit that the large majority are marginalized and refused the protection promised by the judicial process, then, we can more easily understand that perceptions of injustice will always prevail. But before we get maudlin about those faceless millions, spare a mild thought for the high-profile who are often victims of their fame and pay the price for it. While they do obtain certain concessions, they also are disqualified from any short-cuts or plea bargains. Justice has to be seen to be done for a hungry media needing to feed its ghoulish masses and that mandate mangles the rights and privacies of the individual. Salman has been under the cloud for nearly 13 years. That is the extent of an official life sentence. In the case of Sanjay Dutt, it was even longer before he was sentenced. The anguish of such a long “wait” is tangible. When you hold the sword over their heads for such long periods, they are already serving the state and are at its mercy. This aspect is also wrong. From frivolous cases in Hicksville courts to major charges and summons dispatched

PAINFUL PROCESS Sanjay Dutt’s trial and conviction took more time than Salman’s hit-and-run case

arbitrarily to them, these celebrities become vulnerable and are hounded. When celebs are victims, it may be no different. Jessica Lal was murdered in a nightclub in April 1999. Her killer was sentenced to life in 2006. It took four years to hang Mohammed Kasab and if you really want to rub it in, follow the Hashimpura massacre in 1987 when 42 people were killed ostensibly by cops. It has taken 28 years to throw the case out in 2015 for lack of evidence. Did no one kill them? In the Bhopal gas leak tragedy, grandchildren were appearing on behalf their long

Where is Kamaal Khan? THE presence of singer Kamaal Khan in the back of Salman Khan’s vehicle on the night of the tragedy and the failure to produce this gentleman as a material witness can rank as the most incredible “missing link” in any prosecutorial exercise. He was there. He saw what happened. He is the case. That his name suddenly appears center-stage on the very day that Salman is popping over to the registrar’s office for an inconvenient two-hour interlude and the

coughing up of a bail bond given with consummate ease, really makes for a travesty. Where is Kamaal Khan? Why was he not a witness for the prosecution? How come a man who gave a police report has been absent for 13 years? What sort of case is this? Did nobody ask the basic question: How many people were in the car? This is mockery at its worst. — Bikram Vohra

INDIA LEGAL May 31, 2015

LEAD/ Legal Eye / Salman Khan Case

UNI

PROMPT JUSTICE In The Oscar Pistorius (top) and OJ Simpson (above) cases, the verdict was delivered fast

dead grandparents in a third generation “hand the baton” trial that still ranks as a permanent stigma on the judicial process. Even on the global yardstick, Indian justice grinds so lowly that often the powder goes unnoticed. The Oscar Pistorius trial in South Africa began 11 months after he allegedly shot his girlfriend through a locked bathroom and the verdict was delivered soon after. Whether one agrees with the verdict or not is irrelevant to the process. The fact that it was completed expeditiously is what counts. In the OJ Simpson case, where the running back Hall of Famer was charged with the deaths of his girlfriend Nicole Brown Simpson and her friend in June 1994, the case came to trial in 1995, just over a year later.

ith India currently battling a wave of rapes, the closest comparison one can make to the inability of the courts to handle the fallout is the racial assaults by the police in the US. In both cases, the prejudice is deep-rooted, part of a mental make-up that defies common sense. The perpetrator justifies his conduct because it is filtered through contempt. What is known as the “Rodney King” syndrome in

May 31, 2015

America is known as the “Nirbhaya” equation in India. Both cases have become symbolic for their genre of crime and political leaders have failed to rise to the occasion and support the innocent. King’s beating by four cops has been a forerunner to multiple such assaults on AfroAmericans. The Indian girl raped on the bus shocked a nation as more examples of ugly male chauvinism were exposed and continue to occur. The gross common factor is that there exists an element of “condoning the culprits” that defies every decent tenet but feeds on a profiling that just will not get beaten down. Prejudice that is part of a culture makes a mockery of law and the law far too often loses. Against the marooning of justice in most categories except perhaps for a new alacrity in white collar fiscal scams, the Salman case is not a major landmark. It is only fraught with fear of ethnic reprisals and shrill fan support. It is also unlikely that he will ever spend any significant time behind bars and he has the wherewithal to finance his appeals so that will eat up the years. As of this moment, the time lag has saved his skin. His atonement can only be financially supporting the dead man’s family. What the Salman case must underscore is the need for speed. To make the verdict an associate of the accusation rather than a far too distant and disconnected cousin so that it erodes into an escape route. The two major flaws in this case are: To not make someone pay the price for a criminal offence...in law you cannot be held to a higher or different standard unless you are elected to public office and Salman has got away with it by default. To not establish precedents that are available to all. Who else gets a bail for such an insignificant amount or is almost anointed rather than castigated? Above all, the case should ensure that fear of retribution from either the system or the power of the accused does not force good men and true to be silent...or build a house of lies. For, when the reporting of a crime is made equal to the committing of it, then your system is run by criminals. IL

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LEAD/ Legal Eye / Salman Khan Case

Let the law be the

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While the general perception is that the star was favored, the high court’s orders were within the framework of statutory law. But would it work so fast for the common man? By Shailendra Singh

T took 13 years for Salman Khan’s trial in an accident case to be completed, but just four hours for him to be granted bail after he was convicted and sentenced to five years’ rigorous imprisonment. What was the reason for this fast-tracking? Was it Salman’s star status or the charismatic personality of eminent lawyer Harish Salve that led to quick legal remedy for him?

May 31, 2015

There is no doubt that it was Salve’s presence in the Bombay High Court and his effective pleading that protected and enforced Salman’s immediate legal rights and accrued in his favour. The judgment was orally pronounced and only the operative part pronouncing his conviction was delivered. As the complete judgment was not given to him, Salman by force of law (Section 363(1) of the CrPC) could not have been

same for all immediately incarcerated. He was left with no option but to seek urgent intervention from the high court, which granted the same as a natural course of justice. PERSONAL LIBERTIES The Supreme Court in a series of judgments has taken quite a lenient view with regard to personal liberties of an individual and has held that bail, not jail, is a dominant principle of criminal law. However, as far as the public is concerned, neglect of this principle is often seen in the case of thousands of undertrials, who neither have the resources nor the clout and are left to languish in jail. However, they cannot be compared to Salman’s case as, post May 6, 2015, he was held to be a convict. The high court granted bail to the actor on the ground that the full judgment was not made available to him, and thereafter, suspended the sentence till the final disposal of the appeal with a direction for hearing it in July 2015. Section 389 of the CrPC allows an appellate court to suspend the sentence awarded to the accused and, if in confinement, to release him on bail pending disposal of his appeal. As a matter of practice and a thumb-rule, courts have been asking the accused to first surrender and then seek bail prior to the hearing of his appeal. In most cases, suspension of the sentence was very seldom observed. However, with the high court suspending the sentence in Salman’s case, there has been some positivity in the practical implementation of Section 389, which entitles a convict to seek suspension of his sentence rather than surrender first and seek bail later. WITHIN LAW Though the general perception is that Salman was meted out special treatment, the high court’s orders are within the framework of statutory law and equities. However, it is a

In Salman’s case, Section 389, which entitles a convict to seek suspension of his sentence, rather than surrender first and seek bail later, has been invoked. fact that if a common man with limited resources was convicted, he would not have been in a position to approach the high court so quickly. Even if he had approached it, the court as per past practice, may have continued to ask the convict to surrender first before it hears his appeal and bail application. Though the power to grant bail or suspension of sentence in such offences is discretionary and rests completely in the hands of the court, higher courts must lay down a uniform mechanism which can be followed for grant of bail or suspension of sentence. This would make sure that even a common convict is not deprived of equal opportunity of protection and enforcement of his personal liberty in manner provided to celebrities like Salman Khan. IL

UNFAIR TREATMENT (Above) Thousands of undertrials are unable to seek relief under Section 389 and languish in jail

— The writer is an advocate in the Supreme Court and the Delhi High Court INDIA LEGAL May 31, 2015

LEGAL EYE/ Jayalalithaa Case

IT’S JUST A SMALL AMOUNT With the Karnataka High Court setting aside the conviction of J Jayalalithaa in the disproportionate assets case, she is all set to become CM again. Here’s a graphic account of why the high court decided to give her a clean chit By V Seshadri

May 31, 2015

USTICE CR Kumaraswamy of the Karnataka High Court surprised both legal observers and civil society when, on May 11, he set aside the conviction and sentencing of former Tamil Nadu chief minister J Jayalalithaa and three other accused in a disproportionate assets (DA) case. While Jayalalithaa was Accused No 1 (A1), the others were her friend Sasikala (A2); VN Sudhakaran (A3), Jayalalithaa's foster son and biological son of Vanithamani, Sasikala’s sister; and J Elavarasi (A4), widow of Sasikala’s brother, Jayaraman. The trial judge, Michael D’ Cunha, had, on September 9, 2014, found the four accused guilty and sentenced them to four years

imprisonment, besides imposing a `100-crore fine on Jayalalithaa. This resulted in her disqualification from holding an elected office for 10 years, and she ceased to be the chief minister of Tamil Nadu. O Paneerselvam, one of her loyalists, replaced her as CM and she became the first CM in office to be directly sent to jail. Jayalalithaa and her co-accused appealed against their conviction and sentences in the Karnataka High Court, after obtaining bail from the Supreme Court. PROSECUTION’S ALLEGATIONS The prosecution alleged that Jayalalithaa was a public servant and had abused her position as CM of Tamil Nadu to amass wealth disproportionate to her known sources of income. It

also alleged that Accused Nos 2, 3 and 4 actively assisted her in achieving this objective. It was further alleged that all the assets were acquired by Jayalalithaa in her name or in the name of the other accused or in the name of as many as 32 business enterprises. Jayalalithaa contended that the prosecution failed to prove that all these assets were acquired out of her funds. Prosecution had to establish that the properties were acquired from the ill-gotten wealth of Jayalalithaa. It claimed it had clinching circumstantial evi-

chased in the names of various companies of which, either A2 or A3 or A4 were partners or directors. Some of the companies which were not doing any business or profit have been acquired by A2, A3 and A4 only for the purpose of acquiring properties, the source of which is from A1.

FAVOURED BY LAW? (Facing page) Jayalalithaa was the first CM in office to be directly sent to jail

UNEXPLAINED CASH The trial court, in its judgment in para-97 has pointed out how huge, unexplained cash amounts were credited into the various

(Below) AIADMK workers celebrating in Chennai after her acquittal

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dence to show this, as it is not prudent to expect direct evidence on this subject. A case of conspiracy is generally proved only by leading circumstantial evidence and the court will have to draw proper inferences from the circumstances which are established in the case. In this case, the prosecution claimed that such evidence has been presented. It is settled law that the court has to consider the cumulative effect of all the circumstances so proved. The trial judge had concluded that none of these accused had any independent sources of income to purchase the valuable assets, which admittedly have been pur-

accounts standing in the name of accused or the companies owned by them. The trial judge also pointed out how the accused failed to explain these credits. Thus, he found that Jayalalithaa was in possession of assets and pecuniary resource of not less than `55 crore, though the assets were standing in the names of A1 to A4 or the various companies owned by them. Both Jayalalithaa and Sasikala tried to establish that Jaya Publications of which they were the partners, received interest-free deposits to the extent of `13 crore or so from thousands of subscribers on the promise of free supply of copies of the magazine

â&#x20AC;&#x153;Litigation made by persons who advance the political gain and to settle the scores under the guise to fight a legal battle should not be entertained,â&#x20AC;? the high court observed. INDIA LEGAL May 31, 2015

LEGAL EYE/ Jayalalithaa Case

BENEFIT OF DOUBT Sasikala, Jayalalithaa’s friend and a co-accused in the case, was also exonerated of all charges

published by it. The trial court concluded that this theory was only an after-thought invented for the purpose of this case. The trial court concluded that the prosecution had proved beyond doubt the acquisition of disproportionate assets to the extent of `55 crore. Jayalalithaa’s friend-turned-foe Subramanian Swamy was the original complainant in the case. RISE TO POWER Jayalalithaa is the daughter of NR Sandhya, who acted in films during the 1960s. Jayalalithaa acted in films from 1964-1972. Sandhya died in 1971. As per her will, she bequeathed her shares in the properties belonging to Natyakala Nikethan to Jayalalithaa. Up to 1987, Jayalalithaa was in possession of properties worth about `7.5 lakh, agricultural lands measuring 3.43 acres, an old Ambassador and an old Contessa Car, a new Maruti car, company shares, bank balance to the extent of `1 lakh and jewels. She floated business firms, Jaya Publications,

May 31, 2015

Namadhu MGR and Sasi Enterprises between 1988 and 1990, with the other accused as partners. These firms did not generate any income. The check period for the probe against the accused is from July 1, 1991 to April 30, 1996. As on July 1, 1991, Jayalalithaa was found to be in possession of properties and pecuniary resources in her name and Sasikala, who was living with her, to the extent of `2,01,83,957. These included the properties acquired in the name of Jaya Publications, Sasi Enterprises and Namadhu MGR. After July 1, 1991, the acquired assets by her gathered momentum and A3 and A4 came to live with her and Sasikala at 36, Poes Garden, Chennai. During this period, Jayalalithaa and Sasikala, along with A3 and A4, floated 32 partnership firms and companies. There was no business activity in these companies. The activities were more in the nature of acquiring lands, machinery, buildings and vehicles which were not productionoriented. No income tax returns were filed by these firms. No assessment for commercial tax was done with respect to the businesses of these firms. MASSIVE CORRUPTION? The trial judge was thus convinced that prosecution clearly proved beyond reasonable doubt that she and the three other accused possessed properties disproportionate to their known sources of income. The burden was shifted to the accused to satisfactorily account for the properties acquired. They, according to the trial judge, were unable to do so. Jayalalithaa showed NIL income and wealth from 1985-86 and ceased to be an actress since 1979. After becoming chief minister, she doubled her income, tripled her wealth despite drawing only `1 per month as salary of CM. It is obvious she is some kind of financial wizard, said the trial judge. These findings of the trial judge, however, failed to convince the Karnataka High Court. “Litigation made by persons who advance the political gain and to settle the scores under the guise to fight a legal battle should not be entertained,” the high court observed.

“The government servant is to satisfactorily account for the disproportionate assets and not to prove his claim with mathematical exactitude (accuracy) beyond all possibility of doubt,” the high court reasoned citing previous judgments. The essence of benami is the intention of the parties and often, such intention is shrouded in a thick veil, which cannot be easily pierced through. But such difficulties do not relieve the prosecution of the serious onus on it to submit proof, in place of conjectures or surmises. The trial judge rejected this evidence on imaginary and flimsy ground. It was for the prosecution to prove beyond reasonable doubt and by means of legal evidence that these were benami properties of accused No 1, the high court held. WEDDING EXPENDITURE On the foster son’s wedding expenses incurred by Jayalalithaa, the high court concluded that Jayalalithaa spent only `28,68,000, and the other expenses were borne by the girl’s family and partymen. The prosecution alleged that the accused acquired about 306 properties. But the high court found that the accused had borrowed loan for more than `24 crore. This loan was utilized for acquiring immovable properties, namely, agricultural lands, sites etc. Borrowing loans from nationalized banks and acquiring the properties is not an unlawful activity, the high court held. The Director of Vigilance and Anti-Corruption has inflated the value of assets of the accused to the extent of `91,34,568, the high court found. Merely because A2 to A4 were living with A1 does not itself contemplate the offence of conspiracy; conspiracy construes any combination or agreement between two or more persons to do an unlawful act and there must be reason to believe that there was conspiracy and the accused persons were members of that conspiracy, the high court reasoned. Where evidence is only circumstantial, the circumstance in their totality must be such as would not only be consistent with the guilt of the accused, but also inconsistent with any reasonable hypothesis of his inno-

The high court’s verdict has surprised SPP BV Acharya who had replaced G Bhavani Singh. His appointment as SPP by Tamil Nadu was declared illegal by the Supreme Court. cence, the high court observed. “If we remove the exaggerated value of cost of construction and marriage expenses, the assets will work out at `37,59,02,466. “The total income of the accused, firms and companies is `34,76,65,654. The percentage of disproportionate assets is 8.12 per cent. It is relatively small and it is within permissible limit (10 per cent). Therefore, the accused are entitled for acquittal,” the high court concluded. TAKEN OFF GUARD The high court's verdict has surprised the Special Public Prosecutor (SPP) in the case, BV Acharya. He replaced G Bhavani Singh, whose appointment as SPP by Tamil Nadu was declared as illegal by the Supreme Court. While the Supreme Court, on April 27, 2015, declared that Karnataka, not Tamil Nadu, was the sole prosecuting agency, it ironically gave Karnataka government just a day’s time to file a written statement, thus raising concerns that principles of natural justice might have been violated by the denial of permission to make oral arguments by Karnataka. But the Karnataka high court has blamed the government of Karnataka for lack of diligence in appointing the SPP during the hearing of the appeal. The case is sure to be heard finally by the Supreme Court, with either the State of Karnataka or the complainants appealing against the verdict. Meanwhile, Jayalalithaa is set to return as CM of Tamil Nadu. IL

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MY MENTOR O Paneerselvam had replaced her as CM after her sentencing

INDIA LEGAL May 31, 2015

FOCUS/ NGO Sector

RSS, World’s Largest Talk about having double standards. While this sector has been under intense scrutiny from the NDA government, how many know that the largest NGO is the RSS itself? Is there a conscious effort going on to create space for RSS-inspired voluntary activism? By Bhavdeep Kang

OVERNMENTS and political parties are typically uncomfortable with voluntary agencies, except the ones they control. In this respect, the NDA is in a peculiar position. The immense banyan that is the RSS, “the world’s largest NGO”, has some 1.38 lakh offshoots. The BJP, its most thriving branch, is thus intimately linked with a large and complex web of non-governmental organizations (NGOs) from which it draws human resources. There include the Ekal Vidyalayas (singleteacher schools) in villages, some 25,000 of them; the Saraswati Shishu Mandirs, 17,000 and counting; hostels for students; coaching institutes for civil service aspirants; think tanks under the collective banner of Pragya Pravah; research institutions; hospitals; gaushalas—literally thousands of organizations working in the fields of education, agriculture, healthcare (including leprosy missions—move over, Missionaries of Charity!), tribal welfare; rural development and information technology. There are profession-wise organizations—for lawyers, teachers, professors, journalists, scientists and IT geeks. You name it, they have it. SUSPICIOUS CONGRESS They have never had a say in public policy, in the institutionalized manner that NGOs did during UPA-I, when Congress president Sonia Gandhi

May 31, 2015

NGO constituted the National Advisory Council (NAC). While Indira Gandhi was suspicious of NGOs—she targeted Gandhian organizations which had aligned with Jaiprakash Narayan through the Kudal Commission— her daughter-in-law appeared to embrace them. And her grandson, Rahul Gandhi, grants NGOs more access and bandwidth than he does his own party colleagues.

“They (Sonia and Rahul) have a deep distrust of politicians, their own party included. They prefer to rely on non-political players— academics, intellectuals, social workers,” explains a senior Congress leader. BJP vice-president Vinay Sahasrabuddhe, however, feels that the NAC was set up less as a brains trust than a special purpose vehicle to give Sonia Gandhi an official position. “Beyond that, I don’t think it had a lofty goal to participate in policy-making. If that had been the case, they would have ensured all kinds of voluntary organizations found a

The RSS blames the liberals for ignoring the work done by its NGOs and fostering intellectual untouchability.

THE BENIGN FACE (Facing page) A Saraswati Shishu Mandir, run by the RSS (Left) An Ekal Vidyalaya, one-teacher school, in a rural setting (Above) RSS workers clearing a mound following a landslide

INDIA LEGAL May 31, 2015

FOCUS/ NGO Sector

Both Ford Foundation and Greenpeace are facing a government clampdown. An entire department under the Ministry of Home Affairs is dedicated to auditing their finances. FACING THE HEAT (Top) A Greenpeace demonstration at India Gate (Above) Darren Walker, Ford Foundation President, with villagers

May 31, 2015

place in NAC or were at least heard. But as in other areas like academics or intellectual activism or even sections of the media, the voluntary sector was a victim of ideological bias. The contribution of people from the Sangh ideology was never officially recognized. That untouchability continued under the NAC. As for this government, it does not recognize or require any extra-constitutional

power centre like the NAC,” says Sahasrabuddhe. The NGO sector has been left-liberal by definition, as have civil society movements. Thus, the intimate association of the RSS with Anna Hazare’s anti-corruption movement deeply offended Arvind Kejriwal & Co, eventually leading to a parting of ways. While the political affiliation of civil society movements or NGOs with the Congress is not always obvious, the ideological concurrence is. Teesta Setalvad and Javed Anand, for instance, admitted to receiving funds from the Congress and Left to target the BJP. The Congress may have used social activists on occasions but has been deeply suspicious of the voluntary sector. As chief minister of Madhya Pradesh, Digvijay Singh said he wanted all NGO grants routed through the state government and foreign funding of NGOs probed by the state Economic Offences Wing. More recently, UPA Prime Minister Manmohan Singh publicly lashed out at NGOs, ordered an investigation into this sector and cancelled Foreign Contribution Regulation Act (FCRA) licenses of over 1,000 organizations. Furious with Greenpeace, he denied it the right to invite a Fukushima survivor to visit Kudankulam. The NDA has only picked up where the UPA left off, cancelling another 9,000 licences and disallowing a Greenpeace activist from visiting the UK to give a presentation. And now, Samit Aich, Greenpeace India’s executive director, has made it public that the organization, faced with funds squeeze, might close down. . LEFTIST FEARS The Left has always feared foreign funding of voluntary agencies, as not just a means to acquire policy clout but to promote political activism. Back in 1984, CPI (M) leader Prakash Karat (whose three-year tenure as general secretary recently came to an end) observed that “the utilisation of this network of (voluntary) agencies has become a new factor in imperialist strategy...to penetrate the Indian society and influence its course of development”. The strategy, he said, went beyond the traditional charity or aid approach to active interventions in development.

In its first phase, the strategy focussed on grassroots developmental work and penetration. In the second, an ideological basis for “intervention” among the people was formulated, with the voluntary agencies “taking to politics if necessary”. This was the “people’s movement” phase, with these agencies emerging as activists. So funding came with an ideological package, falling into one of two categories: the secular theorists and the Christian ideologues. Both took a radical or leftist posture. The Ford Foundation, currently facing the heat, is a case in point. It set up shop in India in 1952 at the specific invitation of Prime Minister Jawaharlal Nehru. But scholars have documented its association with US government agencies, particularly the CIA. One of them describes it as a “conscious instrument of US covert operations, with directors and officers who were connected to, or even members of, American intelligence”. Its clout over India’s economic policies in the 1950s and 60s is also well-established. Best known for having launched the Intensive Agricultural Development Program in 1961, it paved the way for massive imports of chemical fertilizers, pesticides, hybrid seeds, and farm machinery, to the obvious benefit of US-based multinationals. Since the 1970s, according to the World Social Forum, it has systematically and selectively promoted NGO activism in India. The net was spread wide. Delhi minister Manish Sisodia’s NGO, Kabir, received a $1,97,000 grant in 2007, while Setalvad’s Sabrang Trust received $2,50,000 in 2008. The Foundation’s activities—the source and destination of funds—were never questioned. But now, the government has barred the organization from disbursing funds to local organizations without its approval. The US has reacted with predictable indignation against the reining in of its pet agency. Thus, scrutiny of foreign donors is nothing new—philanthropy being a time-honoured means of pushing agendas (the infamous Project Brahmaputra in Assam, for instance). The trouble is that NGOs say the extent of inquiry has paralyzed their functioning. It is on a scale that has never been seen before. Documents dating back to the

TOO ACTIVE FOR GOVERNMENT’S COMFORT? (Left) The Modi government has cornered Teesta Setalvad with fund embezzlement charges (Below) It also tried to stop Priya Pillai of Greenpeace from visiting London to address a conference

Anil Shakya

early 1990s are being sought and conformity with stated objectives being examined with microscopic intensity. An entire department under the Ministry of Home Affairs has been dedicated to the job of auditing NGOs. Kavita Srivastava, an RTI activist from Rajasthan, believes transparency in funding and accounting is essential, but admits that drowning organizations in paperwork and insisting on a priori FCRA approvals for organizations like Greenpeace is not the way to go. Journalist Paranjoy Guha Thakurta, for instance, found himself being crossexamined because of a tenuous association with Greenpeace. ON THE RSS FRONT Much has been made of RSS receipt of foreign funding. Sarkaryavaha Suresh

Right step? FORMER home secretary GK Pillai supports the current clampdown, saying: “This scrutiny (of foreignfunded NGOs) is long overdue and will help streamline the process of FCRA registration and review.” He says that in many cases, the money given for a specific project or purpose is diverted to establishment costs— salaries, travel, office, etc. Two, there is a lot of 2nd and 3rd tier funding, wherein money from a big organization is doled out to smaller ones, who, in turn, give it to still smaller NGOs. Accounting becomes difficult as a result. Also, some NGOs ask for ex post-facto approval for foreign funding. And last, once they have their FCRA registration, they become quite lackadaisical about filing returns and submitting accounts. Computerization and automatic cancellation of licenses for failure to file returns, he says, will go a long way in streamlining the process.

INDIA LEGAL May 31, 2015

FOCUS/ NGO Sector

While Indira Gandhi was suspicious of NGOs, Sonia seemed to embrace them and Rahul grants them more access than to his own partymen.

BIRDS OF A FEATHER... Sonia Gandhi with members of the National Advisory Council, largely comprising NGOs agreeing with Congress policies

“Bhaiyyaji” Joshi, the RSS No 2, declared in 2014 that RSS-inspired organizations preferably relied on community funding for their activities, NRIs not excluded. The late Jan Sangh doyen, Nanaji Deshmukh, who spurned politics to set up one of the largest NGOs in India—the Deendayal Research Institute in Chitrakut—abhorred foreign funding. “He believed foreign money came with a foreign agenda,” says board member Atul Jain. “Also, he felt India could generate enough resources to finance non-governmental development initiatives. He was alright with accepting donations from individual NRIs or UN bodies, but not other agencies”. In any event, while funding to directly affiliated organizations is quantifiable, that to RSS-inspired agencies is not. RSS organizations have typically worked below the radar, their activities largely unreported and even underappreciated. Is all that about to change? Is the RSS set to capture the NGO-verse, permeate the vast gaps left by government and colonize civil society

movements? Other than reining in the foreign hand, is there an effort to create space for RSS-inspired voluntary activism? Or does the extent and nature of this network negate the need for such an exercise? STRUCTURED APPROACH RSS agencies, which may be either RSSowned or RSS-inspired, fall into three tiers: those directly funded by the Sangh or its known affiliates (paper link), those to whom a full-time worker has been deputed (organic link) and those which have no perceptible link with the mother organization. The first tier organizations are marked by the vehpatra—presentation of a statement of accounts. The second, by the presence of a pracharak (perhaps 2,700 of whom are involved in activities other than the direct working of the RSS) deputed to the concerned agency. Tier-1 and 2 organizations attend the annual RSS pratinidhi sabha and present their reports. The third tier organizations may be self-funded or receive funding through RSS sympathisers and are neither invited nor required to present reports. However, their personnel may be asked to attend meetings of RSS frontal organizations in their personal capacity. To elucidate further, if a former RSS pracharak or full-time worker sets up shop, funding may be organized by calling on businessmen associated

PIB

May 31, 2015

with the RSS to ante up. The links are thus organic and unquantifiable and the grassroots reach is tremendous. RSS workers are typically the first to turn out in times of disaster, be it earthquakes or tsunamis. THE BIG GROUSE Given the reach and scope of RSS organizations, it seems silly to characterize the NDA as anti-NGO. Having said that, Sahasrabhudde observes: “Certain NGOs consider themselves as holier-than-thou, which goes against the grain of voluntarism. Just as politics suffers from a lack of motivation and parties have become election machines, voluntary organizations too have become social work machines. Professionalism has become commercialism. The tantra—the mechanism

of getting grants and gaining access to certain social circles—has become more important than the mantra for many. But this does not figure in the contemporary discourse on the voluntary sector.” Also, he says, the NGO sector is thoroughly politicized. For all their liberalism, international agencies and NGOs promote ideological untouchability. Otherwise, why would organizations like the Vanvasi Kalyan Ashram (VKA) never merit a study, much less awards like the Magsaysay? And if the NDA government was biased in favor of

Ford funding for education THE Ford Foundation, which is under government’s radar for its alleged “covert activities”, is actually funding a number of premier education institutions in India, including IIT-Powai, Mumbai, IIM-Ahmedabad, National Law School of India University, Bangalore, Jamia Millia Islamia, New Delhi, and GB Pant Social Science Institute, Allahabad. According to a report in The Indian Express by Jay Mazoomdaar, these institutions are unhappy with the restriction on funding by Ford Foundation. R Venkata Rao, Vice Chancellor, NLSIU, was quoted by the newspaper as saying: “We are a statutory body and our finances are subject to audit. From the founding days of this institute, Ford Foundation has funded us

PAN-INDIA REACH (Above left) Jansangh doyen Late Nanaji Deshmukh, who criticized foreign funding, started his own NGO in Chitrakut (Above right) RSS pracharak N Nagaraj assuring people from the North-east fleeing racist attacks in Bangalore in 2012

and remained part of the academic culture. At present, very eminent scholars, including our founding director N R Madhava Menon, are handling the Ford Foundation projects and have done great work thanks to the benevolence of the foundation.” The law school has two Ford Foundation-funded projects and a Ford Foundation Chair on Public Interest Litigation. Similarly, in IIT-Powai, the Ford Foundation funds a three-year project on affordable broadband. Director Dr Devang Khakhar told IE: ““We (IITs) don’t need government’s permission (for accepting funds).” While JNU has two “perennial endowments” for visiting professorial fellowships, Jamia too has a Ford Foundation endowed chair and also receives funds for other research activities. Their heads and staff echoed similar sentiments on funding issues.

INDIA LEGAL May 31, 2015

FOCUS/ NGO Sector

Sangh organizations, why did no member of the VKA or Sewa Bharti figure in the national awards list either during its previous tenure or now?

DIFFERENT GEARS (Top-bottom) Rashtra Sewa Samiti members; Narmada Bachao Andolan leader Medha Patkar; sustainable agriculture expert Kavitha Kuruganthi; environmentalist Vandana Shiva

Month 00, 2014

GENDER INSENSITIVE? The other aspect in the disciplining of the NGO sector (other than the probe into foreign-funding or the effort to displace the centre-left) is the anti-feminist narrative being built up around it. The urban, educated, wealthy, internationally well-connected woman who takes up social activism has become something of a cartoon figure in Parivar circles. Given that most social interventions are best targeted at and delivered through women, the fact that leaders of social movements are educated women— Medha Patkar, Kavitha Kuruganthi, Suman Sahai, Vandana Shiva, Chitrarupa Palit, Aruna Roy and others—is inevitable. The doggedly patriarchal RSS, which does not accommodate women within its ranks, appears uncomfortable dealing with them outside a domestic milieu. The stated mission is the transformation of society through education and character-building. The ideal man or virat purush, imbued with the four purushartha (aims), is a patriot ready to fuse his identity with the nation. Women are typically domestic goddesses and mothers of patriots, ghettoized into organizations such as the Rashtra Sevika Samiti, with a few politically empowered exceptions and token

presence in the Sangh’s pratinidhi sabha. Thus, the prospect of English-speaking, education-empowered women seeking to inspire their less fortunate rural sisters does not fit in with the patriarchal world-view. Sahasrabuddhe, of course, denies antifeminist bias and touts instead a “homegrown feminism based on compatibility rather than competitiveness”. He acknowledges, however, that with women taking over male bastions, the traditional patterns have to change. That’s happening even as we speak, he says, as we see in TV ads that show men in nurturing roles traditionally reserved for women. “The training syllabus of the BJP has a session on gender, where we explain that the key to gender equality lies in changing the mindset of the traditional male,” he says. Back in 1995, RSS think tanks suggested a reserve quota for men in municipal-level women and child development committees, he points out, adding that Prime Minister Narendra Modi has come out strongly against the practice of “sarpanchpatis”. Nisha Susan, the brain behind the “Pink Panties” campaign against the Sri Ram Sene, speculates that the right-wing is uncomfortable with the uppity feminisation of politics. But she adds that men on the Left are consolidating even more. “So you are allowed less to critique men ‘on your side’, supposedly because the war is on and it’s time for ladies to shut up. It’s a bit like The Shock Doctrine (Naomi Klein’s thesis on disaster capitalism) but applied to gender. Of course, everywhere in the world, from the US civil rights movement to trade unions in Maharashtra, this has always been the case. The men like to say: this is war and we will deal with your little issues later. Why should the Left or the Right be different on this front,” she asks. ABVP activist Rashmi Das sees it differently. “In India, the problem for women largely is existential—it has to do with securing the right to life and liberty. Women need a dose of ‘manliness’, similar to purushartha and Virat Purush. I do not know why this virtue of courage and wisdom gets identified with the empowered male—liberated women also fall into that trap. Virat Purush, according to me, means a mighty being—whoever said that it had to be a man?” IL

MORE NEWS.../national

Ramalinga Raju granted bail FORMER Satyam Computers Chairman B Ramalinga Raju and others sentenced to seven years of rigorous imprisonment in the `7,000 crore forgery case have been granted bail by a metropolitan sessions court in Hyderabad. The sessions court ordered all the accused to deposit 10 percent of the `14 crore fine imposed on them by lower court.

While Ramalinga Raju and his brother Rama Raju were asked to pay sureties of `1 lakh each for release on bail, others were asked to pay `50,000 for others. The session court will hear the appeal in the case on June 30. The sessions court accepted the appeal of the accused because the case might prolong, looking at voluminous documents involved.

Relatives make the grade Zindagi gets notice on Pro-Pak content ZEE NETWORK’S Zindagi Channel has been issued notice for a showing a serial with overtly Pro-Pakistan sentiments, according to a report in The Times of India. The daily soap, named Waqt Ne Kiya Kya Haseen Sitam, is a love story in the backdrop of the Partition and puts forth Pakistan’s version of the

event, according to complaints from some viewers. The I&B ministry has forwarded the complaints to the Broadcast Content Complaints Council (BCCC), headed by Justice Mukul Mudgal. And the BCCC has asked the channel to respond to the complaints; primarily that it portrays Indians in a bad light.

RTI: Who is Eeshwar? WHO is “Eeshwar”, in whose name constitutional functionaries take oath of office? This was an RTI query to the law ministry about the constitutionality of “Eeshwar”. The RTI was filed by Shradhanand Yogacharya. He also raised another query, seeking to know the meaning of Satyamev Jayate, the motto inscribed at the base of the national emblem. Shradhanand took the matter to Central Information Centre after failing to get a proper response. A

law ministry official told him during video conferencing that they can provide only that information which is part of written records.

WITH the abolition of the erstwhile collegium system and the delay in setting up of a National Judicial Appointments Commission (NJAC), the appointment of as many as 125 judges in various high courts is pending. Interestingly, over 45 of the appointees are relatives of judges. One of them is Somesh Khare, son of former Chief Justice of India, VN Khare. More than half-a-dozen of them are relatives of politicians. One of them is Neeraj Tripathi, son of Keshari Nath Tripathi, the governor of West Bengal. In a representation to President Pranab Mukherjee, many bar association members had filed complaints in this regard. One representation wanted the President to intervene and ensure that the ongoing hearing of the NJAC case before the Supreme Court is referred to an 11-judge bench for a comprehensive settlement. Attorney General Mukul Rohtagi had made a fervent plea to reconsider the 1993 and 1998 judgments pronounced by the apex court. This had laid the ground for the collegium system of appointments. The bar members pointed out that the government stopped considering more than 125 names recommended by various high courts for appointment as judges after the collegium system was abandoned and the NJAC came in. Apart from this, some additional judges initially appointed for two years were yet to be confirmed as permanent judges.

INDIA LEGAL May 31, 2015

NATIONAL SECURITY/ Declassifying Documents

STOP BEING Despite there being a time-frame to declassify documents, the government is wary of doing so and several legal provisions protect its right to do so By Somi Das

“Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.”

—Mahatma Gandhi

N the first week of April, India Today’s cover story based on two files decla-ssified by the Intelligence Bureau (IB) revealed that the family of Netaji Subhas Chandra Bose was spied upon for nearly two decades between 1948 and 1968 under the prime ministership of Jawaharlal Nehru. The BJP and the Congress politicized this issue to the hilt, accusing each other of not telling the whole truth. While the Congress, in all the years it was in power, never entertained demands for declassifying either the Netaji files or the Henderson-Brooks Report on the 1962 IndoChina war, the BJP was accused of selective and sinister release of information. The commotion subsided in a few days. On May 5, Minister of State for Home Haribhai Parathibhai Chaudhary told the Lok Sabha that the government had no intentions of ordering a probe into the reports of snooping on family members of Netaji by the IB. Neither is there any clarity on whether we will ever know the truth about Netaji’s death which many people term as a “disappearance”. When it was in opposition, the BJP had promised that once it came to power, it would declassify the controversial papers that could

May 31, 2015

SECRETIVE help solve the mystery around Netaji’s death. Chandrachur Ghose, founder member of “Mission Netaji”, writes in Swarajya magazine: “The BJP kept making the right and, at times, very encouraging noises as long as they remained in opposition. The people had a right to know what happened to Netaji, they said. The government must declassify all files, they said. That is, until they became the government in May 2014. Then, a curtain of silence fell on all those who were the most vociferous. New Prime Minister Narendra Modi would talk much about ‘Subhas babu’ but not about the need to tell the country about papers locked away in the secret vaults.” NO POLICY However, the issue is not just about the Netaji files, but about India’s policy on releasing classified documents that tell us our history.

Although there is a standard 30-year rule for releasing classified documents, the Indian government can withhold them for an indefinite period, citing reasons such as “extremely sensitive”, “of current operational value”, affecting the “country’s sovereignty and integrity”, etc. Classified documents can be any piece of government document such as a cabinet note, records or balance sheets that are accessed only by people officially authorized to see it. Several legal provisions protect the government’s right to keep such documents classified for years. The Official Secrets Act (OSA), 1923, is one legal measure that allows secrecy of unpublished official documents. Sections 123 and 124 of the Indian Evidence Act, 1872, allow the head of the department concerned to refuse to disclose unpublished official documents even to a court of law. Activists, however, thought that with the advent of the Right to Information Act, 2005, it would be easy to access classified information. In his Swarajya article, Ghose writes that “Mission Netaji” has vigorously used RTI to get several documents on Netaji declassified. According to him, in 2007, the Central Information Commission (CIC) asked the home ministry to provide one of their members over 100 documents related to the first two inquiries on Bose’s disappearance overruling the home secretary’s contention that if those files were made public, there would be a serious law and order problem in the country, especially Bengal. With the exception of close to two dozen documents deemed “highly sensitive”, the government did release other files that were demanded. Classified documents come in three categories: top secret, secret and confidential. The rules and regulations about how and why a document is classified are explained in the

FATE UNKNOWN (Facing page) Subhas Chandra Bose’s disappearance remains a mystery (Left) Pt Nehru’s role in his disappearance was always up for debate

“The BJP kept making the right noises as long as they remained in opposition. The people had a right to know what happened to Netaji, they said. That is, until they became the government in May 2014. Then, a curtain of silence fell….” —Chandrachur Ghose, founder member of “Mission Netaji” in Swarajya magazine INDIA LEGAL May 31, 2015

NATIONAL SECURITY/ Declassifying Documents

“No law requires the government to classify files” VENKATESH NAYAK, program coordinator of the Commonwealth Human Rights Initiative, has been working on the legalities of classified documents by filing RTIs on the issue. He tells SOMI DAS why governments prefer not to declassify documents and how RTI could help

There was a demand recently for declassification of the Netaji files after the snooping controversy. What stops the government from sharing the documents? I would not like to speculate. But if they are marked “Secret” or “Confidential”, then one of the criteria for these classificatory labels is “embarrassment to the

government”. If the classification is “Top Secret”, the reasons that the government gives for not declassifying is prejudice to foreign relations. But this is simply not the criteria for such a classification, as stated by the GoI Manual on Departmental Security Instructions. Thus, the classification becomes entirely arbitrary. This manual is not open. We used to think that the manual was based on the Official Secrets Act (OSA). However, earlier this week (early May), the Ministry of Home Affairs replied in the Lok Sabha that classification of official documents is not based on the OSA. So there is no law that requires the government to classify files. It is based only on an administrative manual. My hunch is that if the government had knowledge of the whereabouts of Netaji after August 1945, then, it might have been compelled to turn him over to

Manual of Departmental Security of Instructions maintained and updated by the home ministry. STRANGE LOGIC However, RTI doesn’t prove to be useful always. The degree of government’s paranoia about guarding secret documents can be gauged by the outcome of an RTI filed in 2009 by activist Venkatesh Nayak, who asked why a document is deemed classified by the government. He asked for a copy of the above manual. He didn’t get it, for it turned out that the manual too was classified. The bottom-line is that not only are secret documents out of reach of the common man, but the definition and criterion of why a certain document is

May 31, 2015

the victorious Allied Powers who were trying all surviving leaders of the Axis powers for war crimes in Germany and Japan. That would have created enormous problems for India—how do you hand over such a popular freedom fighter and a darling of the masses for trial abroad? This hunch is based on the presumption that Netaji did survive the crash. If he did not survive the crash, then the reasons for keeping the files classified cannot be surmised until we have more information. Can we seek information regarding classified papers through RTI? As the RTI Act overrides all other laws, you can ask for even classified information and it cannot be denied only on the ground that it is classified ‘Secret’ or 'Top secret'. The reason for rejection must match with the grounds for “harm test”

secret is also classified. Nayak writes in one of his articles: “This is a funny situation as they do not tell you on what grounds classification is done but still deny information, saying a document is classified. So it is not possible to challenge the security classification before the CIC.” Similarly, veteran journalist Kuldip Nayar failed to secure a copy of the HendersonBrooks Report on the Indo-China war after doggedly filing RTIs for four years from 2005. He argued that when the US can make public the embarrassing details of the Vietnam War, the Indian government should be comfortable with releasing papers on a war that was half-acentury old. However, his plea was declined under Section 8 of the RTI Act.

(amount of damage it can do) mentioned in Section 8 of the RTI Act. If they match, you will not get it. If they do not match, then, because of the overriding effect of the RTI law, it will have to be given. For example, I asked for cabinet notes relating to the Whistleblowers Protection Bill and the Nuclear Safety Regulatory Authority Bill at different points of time. The Central Information Commission ordered their disclosure, even though the cabinet notes were marked “Top Secret” (this is a mandatory classification for all cabinet notes). Does India have a stipulated time-period to release classified documents? What are the rules regarding this in other democracies like the US and the UK? No, there is no time period for declassification of classified records. Public Records Act and the Rules under it do not contain any such time limit. There is also no law that prohibits the government from destroying a classified record without declassifying and archiving it. However, under the RTI Act, any information that is more than 20 years old can be revealed, provided it doesn’t fall under Section 8(1)(a), (c) and (i). The other seven exemptions will not apply

for information that is 20 years old or older. It will have to be given. In the UK, the limit is 20 years for most classified records. In the US, there are different systems for declassification in federal and state governments. The only papers we talk about are the Netaji files and the 1962 documents. The BJP promised to declassify papers, but didn’t do much. Why do these papers get embroiled in a political war of words, rather than be seen as a source of vital information? Though the BJP promised declassification, it has reversed its stand now. Is it because its leaders have read what is in those classified records and agree with the reasons for continued secrecy? Or is it because the bureaucracy prevailed upon them to change their stand? Or are they merely following their oath of secrecy taken at the time of assuming office? It is difficult to pinpoint one reason. But, what has not been given serious attention is Netaji’s family’s right to get closure on the subject of his whereabouts. It is often recognized in international human rights law and in the domestic laws of several Latin American countries that in cases of disappea-

rances, the family has a right to know and their suffering and agony must reach a point of closure. It would be inhuman to prolong the suffering. Unfortunately, this principle is not wellrecognized by bureaucrats in India and I have not come across jurisprudence on the family’s and public’s right to know the truth in such cases. Are there other classified papers which too should be made available to the public? Yes, the annexes to the NN Vohra Committee Report on politician-bureaucrat-criminal nexus have never been made public. Even the Supreme Court said they would not be made public (See Dinesh Trivedi vs Union of India case, 6th attachment). As a result, we do not know if those annexures still exist or have been destroyed. Another example is the President-PM correspondence after the Gujarat riots in 2002. There could be several more such instances. This is why the National Data Sharing and Accessibility Policy, adopted in 2012, says that every government department must declare a negative list containing categories of information that will not be shared with the public. This will make matters transparent.

HISTORY REVISITED Australian journalist Neville Maxwell (above) leaked documents related to the India-China war of 1962 that blamed Nehru for the debacle INDIA LEGAL May 31, 2015

NATIONAL SECURITY/ Declassifying Documents

West more open DEMOCRACIES in the West are far more comfortable in dealing with their past and making it available for public scrutiny. In the UK, there is a fixed time-frame within which all classified documents are released into the public domain. It was because of this policy that India got to know about the UK government’s role in Operation Blue

NSA chief Ajit Doval (right) expressed his concern to Cabinet Secretary Ajit Seth (left) that media had breached the Official Secrets Act with impunity.

Star. The time period for releasing secret documents has been consistently reduced over the years. Initially, it was 50 years. Later, it was reduced to 30 years and now, 20 years. In the US, while there is no such timeframe, the manual on what is classified and what isn’t can be accessed by the public at large.

Para 8 (1) (a) of the Right to Information Act 2005 states that “notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence”. SELF-CENSORSHIP Eventually, Australian journalist Neville Maxwell leaked parts of the documents that squarely put the blame of the 1962 debacle on Nehru, causing much embarrassment to the UPA government before the general elections. Maxwell claimed that he had approached many Indian media houses to publish the papers but no one did. As a result, he decided

Photos: UNI

May 31, 2015

to leak the papers online. One can’t blame the Indian media’s reluctance to publish these leaked documents considering how the government of the day would react to it. Prashant Reddy T writes in The Hoot: “Part of the reason for the silence and lack of independent reporting by the media on the issue of national security is probably the OSA. This legislation is of 1920s vintage and is deadly ambiguous, the kind of ambiguity that leads to self-censorship by editors.” Section 3(c) of the OSA lays down that spying is when someone “obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy (or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States)”. The maximum punishment for this extends to 14 years. This provision has been used against journalists several times in the past. Recently, there has been renewed vigor in protecting government secrets and a crackdown on media for reporting on classified information. In December 2014, Aaj Tak reported on “a series of government notes highlighting concerns over the leakage of information to the media”, expressed by Ajit Doval. The NSA chief pointed out in a letter to Cabinet Secretary Ajit Kumar Seth on October 13, 2014, that media had breached OSA with impunity on several occasions. He said “firm action needs to be taken in such cases that undermine the national security of the country”. With strictures on media and with RTI being ineffective in getting classified documents, the walls of secrecy in government offices are practically impregnable. We can get a peek into our past and come to terms with the mistakes our governments have made only if they voluntarily release classified documents. Given the ruling dispensation’s aversion to ensuring smooth functioning of the RTI mechanism and the U-turn on the promise of declassifying the Netaji files, there isn’t much hope. IL

INTERNATIONAL BRIEFS

Yet another executive-judiciary tussle ISRAEL’S Prime Minister Benjamin Netanyahu is planning to introduce a Bill aimed to limit the powers of the country’s Supreme Court in the lawmaking process of its parliament, the Knesset. This was reported by The Economist. The Bill stipulates that a vote of at least eight justices out of 11 will be needed to rule a law passed by the Knesset unconstitutional. He also plans to expand the

Al Jazeera dragged to court MATTHEW LUKE (in picture), a former employee of Al Jazeera, has alleged that he was sacked for raising his voice against the anti-Semitic and sexiest remarks of Mahmud Osman, a senior executive. According to the The Washington Post, Luke said in the complaint that Mahmud would arbitrarily remove female employees from the projects which had been assigned to them previously by others. In his law suit, Luke has demanded $5 million in compensatory damages and another $10 million in punitive damages.

Can Pakistan be secular? PAKISTAN Chief Justice Nasirul Malik started a debate when he raised a question whether Pakistan can be declared a secular state. He was hearing petitions challenging the procedure for appointment of Superior Court judges under the 18th Amendment and establishment of military courts under the 21st Amendment to try terrorists. The chief justice wondered if it is possible to replace “Islam as state religion” under Article 2 of the constitution with secularism and asked if it could be done by the present parliament or a con-

Manny Pacquiao in legal mess TWO boxing fans have filed a lawsuit against Manny Pacquiao for failing to disclose a shoulder injury before his defeat by Floyd Mayweather. ESPN reports that Nevada residents Stephane Vanel and

judicial appointments committee, which selects all of Israel’s judges. Netanyahu, who returned to power in March with a new coalition, is in a direct fight with the judiciary. But a major hindrance for him is the Kulanu Party, which is the secondlargest partner in his coalition, and which opposes his stand on the judiciary. Chief Justice Miriam Noar, has also criticized him for the bill.

Kami Rahbaran are suing on behalf of all persons who purchased tickets, purchased the pay-per-view event, and who bet on the “Fight of the Century”. If Manny is found guilty, he could be jailed for one to four years, and will have to pay a fine of up to $5,000. Members of the Nevada Athletic Commission want to know why he wrote “no” when filling out a form the day before the fight that asked if he had a shoulder injury.

stituent assembly, Dawn reported. Senior counsel Hamid Khan said that the fundamental feature of the constitution that says Islam is the state religion is not open to challenge. He proposed that the public opinion on this issue could be gathered through a referendum.

UNSC on Zaki-ur-Rehman release

A UNSC committee has assured India that it will take up the issue of Mumbai terror attack mastermind Zaki-urRehman Lakhvi at its next meeting. This was after India expressed concern that the

Lashkar-e-Taiba (LeT ) commander’s release from a Pakistani jail violates the provisions of the United Nations. India’s ambassador to the UN Ashok Mukherjee had written a letter to the Chair of the UNSC al Qaeda Sanctions Committee Ambassador Jim McLay, expressing concern over Lakhvi’s release and said it violates the provisions of the committee concerning al Qaeda and associated individuals and entities.

INDIA LEGAL May 31, 2015

PROBE/ Rose Valley Scam

PONZI STORM STRIKES BENGAL As if the Saradha scam was not enough, the state is now saddled with the Rose Valley scam. At stake is a whopping `60,000 crore and one crore hapless investors By Shantanu Guha Ray

ROUND the time when counting was about to start for the crucial 2011 assembly elections in West Bengal— where the Left Front had ruled for 34 long years— Arkoporbo Saha, an anchor of Bengali news channel, Newstime, got into a peculiar logjam while interviewing Gautam Deb, a top Marxist minister. The Left Front, it needs to be mentioned, was still in power. As Deb hated a pre-poll analysis shown by Saha and disliked some of the tough questions posed, there was palpable tension in the studio. The poll had made it very clear that

May 31, 2015

the Trinamool Congress (TMC), powered by Mamata Banerjee—then considered by the Left Front as a troublesome leader who had to be listened to but ignored—could sweep the polls, dislodging the three-decade-long rule of the Red Brigade. Still Deb, a seasoned politician, kept his cool for the initial part of the interview. Eventually, he got annoyed, almost threatening to take off the mike attached to his shirt and walk out of the show. SHAMELESS PLEADING Saha, realizing the Left was still in power and a poll may go horribly wrong—evident during

the NDA’s India Shining campaign—now tried to make amends. He first apologized on air, and then virtually went down on his knees, pleading—hands folded—to Deb that his government should not do anything destructive to the channel. “Sir, there are many who earn and live off this channel and its parent company (Rose Valley Group). Please think about them, do not leave the set, we will immediately pull off the opinion poll,” he said. Probably Saha knew that Deb was aware of what the parent company of the

The results proved otherwise and the TMC swept into power. Mamata, once sworn in, pushed her men to replace the top brass of the channel and took control with her “favorite journalists”. Overnight, the Rose Valley Group shifted its allegiance from the Red Brigade to the Blue and White one (TMC’s favorite color). LARGE NETWORK But in one shot, the studio show proved how Left Front leaders and those who enjoyed

Rose Valley’s operations were almost six times that of the Saradha Group. Having cast its net across Bengal, Tripura, Assam, Odisha, Jharkhand and Maharashtra, among others, the company raised close to `60,000 crore. news channel did behind the façade of news, real estate, entertainment and financial services business. After all, Tripura’s Leftist chief minister Manik Sarkar had been—in a total break from all parliamentary norms—endorsing Rose Valley since 2008, right under the nose of Securities and Exchange Board of India (SEBI). The Left’s bond with Rose Valley was more solid and enduring than the iron bars of the Howrah Bridge. In the studio, the minister, now happy at the anchor’s total submission, regained his composure and waxed eloquent about why he thought such polls were “total bunkum”.

their patronage, reaped the benefits of the ponzi company, whose operations were almost six times that of the Saradha Group that is now financially bankrupt. Having cast its wide net across Bengal, Tripura, Assam, Odisha, Jharkhand and Maharashtra, among others, the company raised close to `60,000 crore. “The Rose Valley case proves that ponzi schemes were in operation in Bengal, rather eastern India, for more than three decades. The Left Front actively encouraged the growth of such companies,” West Bengal BJP president Rahul Sinha said in a telephonic interview from Kolkata.

DUPING MILLIONS (Facing page) Rose Valley group chairman Gautam Kundu being taken to a court in Kolkata (Above left) Rose Valley staff members demonstrating in Kolkata for Kundu’s release

INDIA LEGAL May 31, 2015

PROBE/ Rose Valley Scam

Agents of Rose Valley promised gullible villagers the moon, offering a return of 300 percent within two to three years on all amounts invested in the company.

WIDE CONNECTIONS (Below) TMC MP Tapas Pal was on the payrolls of Rose Valley; Filmmaker Gautam Ghosh took cash from Rose Valley to make a Bengali film

The BJP, too, came under attack after Facebook and Twitter carried photographs of Asansol MP and current minister of state Babul Supriyo sharing stage with Rose Valley chairman Gautam Kundu, currently languishing in jail. “Supriyo was a guest at a function organized by Kundu, nothing more. Even the Enforcement Directorate (ED) has not found a single paper on Supriyo taking any financial help from the tainted group,” added Sinha. SMART OPERATOR But Kundu, who was among six people named in the chargesheet filed by the ED in the Rose Valley ponzi scam in April 2015, proved to be smarter than Saradha head Sudipta Sen, also in jail with his partner-colleagues. Ever since he was arrested, Kundu encouraged his office to push thousands of workers of Rose Valley to jam streets in Kolkata and other parts of the state, virtually paralyzing business. Holding placards and ban-

May 31, 2015

ners, the workers screamed slogans and demanded Kundu’s release, calling his arrest “a political vendetta” by the BJP-led ruling NDA at the center. “We are suffering, the company is suffering, work has come to a standstill,” a protester was quoted by The Times of India. The ED has already attached 2,631 Rose Valley bank accounts with `295 crore under the Prevention of Money Laundering Act (PMLA). The modus operandi of Rose Valley, among 53 ponzi companies being probed by the ED and other organizations on instructions from SEBI, was the same as that of Saradha, except that the scale was bigger. PROMISING THE MOON Agents of Rose Valley promised gullible villagers—mostly farmers, small traders, fishermen, and poultry owners—the moon, offering a return of 300 percent within two to three years on all amounts invested in the company. The first investors were paid on time, a ploy to rope in more. Agents of Rose Valley went where the banks didn’t, receiving instant commissions of 16 to 33 percent to get rural depositors to invest in fixed-deposit funds. In some places, Rose Valley hired wives of local police officers as representatives to prevent investors from raising an alarm against such dubious investment programs. The villagers eventually learnt to their horror that they were duped of their life savings and that the schemes were nothing but a massive ponzi scam. In cash-starved West Bengal, no one from the TMC is offering any words of hope to the investors. There are enough reasons for that. TMC MP Tapas Pal has already confessed that he was on the payrolls of Rose Valley as group director, brand communications, and was paid `1,00,000 monthly. Pal, whose apartment was among the many premises raided by the CBI in Bengal, left Rose Valley in six months time. As many as 22 people have committed suicide over the scam, including agents of the operators of the ponzi scheme. The West Bengal Association of Small Savings Development Officers has even warned of riots in the days to come.

“Investors were lured by advertising campaigns shot with Bollywood stars. The villagers were fooled but it would be wrong to blame the TMC for everything. It is a malaise that existed for long,” remarked Nirbed Ray, a seasoned politician in Bengal and a member of TMC.

The modus operandi of Rose Valley, among 53 ponzi companies being probed by the ED and other organizations, was the same as that of Saradha, but the scale was much bigger.

KING OF FRAUDS SEBI, in a note in early January 2015, said repeated scams had resulted in $11.5 billion losses and affected seven million people in West Bengal alone, one of the biggest financial fraud cases in India. There were chances, the SEBI said, of similar scams in Odisha and Jharkhand too. The Serious Fraud Investigation Office (SFIO) said the ponzi schemes flourished in West Bengal, Odisha and Jharkhand because rural residents here don’t have easy access to banks. “What is interesting is that almost all companies work in Bengal on similar lines. They raise cash, float media companies, bribe politicians, make films, open resorts and fund soccer clubs and entertainment soirees. And behind the veil, use the hawala route to transfer cash to tax havens abroad,” says Deepak Ghosh, a former principal secretary of West Bengal whose intervention forced the closure of two ponzi companies 14 years ago. SEBI has confessional statements of several operators of the schemes saying they acquired diamond mines in Africa, villas in Jordan and Dubai and partnered oil traders across the UAE. “Rose Valley was the most arrogant because it was patronized by the Left Front. It continued to raise cash even after being banned by the SEBI. Now, who will ensure that the ban stays, the state government, right? But when you have the state government eating out of Kundu’s hands, do you believe Rose Valley will be asked to shut shop?” asked Ghosh. He definitely has a point.

once won a National Award, took cash from Rose Valley to make Moner Manush, based on the life of Lalan Fakir, a popular country singer in Bengal. Another big movie, Jatiswar, featuring Prasenjit Chatterji, Bengal’s reigning star, was funded by Rose Valley. “Poor villagers get sucked in by such news. They feel the group is big, else how will they invest in such big buck movies. So, they readily open up their coffers,” added Ghosh. Consider the case of Bollywood filmstar Shah Rukh Khan, who used to endorse Rose Valley for its investment in Kolkata Knight Riders (KKR), a team in the Indian Premier League. He has already indicated to the ED that he’s keen to return a portion of the `10 crore paid to his company, Red Chillies, by Rose Valley. But will other monies return? The chances are less. India’s financial regulator admits there is no way out because SEBI itself lacks the manpower to monitor such illegal collections across rural India. “SEBI is dependent on state governments and needs ground-level support,” SEBI chairman UK Sinha informed a business conference in Delhi late last year. Till an answer is found, the cash will remain missing, so will be the hopes of recovery of one crore investors. That is not good news. IL

MOVIE LINKS He said like the Saradha scam, officials of Rose Valley also promoted films, film stars and directors. For example, veteran filmmaker Gautam Ghosh, whose movie Paar had

GAME UP (Above) Saradha scam kingpin Sudipta Sen

INDIA LEGAL May 31, 2015

SPOTLIGHT/ Heritage/Legal Tangles

LINE OF

CONTROL

In an attempt to protect monuments, “prohibited” and “regulated” areas have been created around them, much to the dismay of populations staying close by. But now, easing of norms is on the anvil. Will it harm the lesser monuments of India? By Meha Mathur

ECENTLY, a report in The 1904, which says that a certain area around Times of India largely went monuments should be left outside the ambit of unnoticed. It said that the construction. It includes not only the “protectTomb of Khan Shahid in the ed monument”—the structure and its sprawling Mehrauli Archaeoprecincts, but also “such portion of land logical Park in South Delhi adjoining the site of an ancient monument as had been vandalized, its walls whitewashed and may be required for fencing… or otherwise clothes laid out to dry. More startling was the preserving such monument”. response of Deepak Bhardwaj, a surveyor with Then, after Independence, Article 49 in the the Archaeological Survey of India (ASI), Delhi, Directive Principles of State Policy put an obliwho told the newspaper: “We don’t know gation upon the government to protect every whether ASI, Delhi Wakf Board or DDA is monument, place or object of artistic or hisresponsible for it.” toric interest, as specified by parliament. This is the fate of many monuments in In 1951, parliament enacted the Ancient India. While responsibility for their upkeep is and Historical Monuments and Archaeolopassed from one agency to another, few shed gical Sites and Remains (Declaration of tears over their plight as heritage is a non-issue. National Importance) Act, whereby certain There are many reasons for this: the greed of monuments were declared to be of national CHEEK BY JOWL builders, the pressure on land, general apathy importance. Under this act, the central govern(Facing page) Modern towards monuments and lack of funds for their ment can notify any structure to be of national flats next to Hauz Khas upkeep. importance after making a public monument in Delhi Such is the nonchalance towards heritage buildings that a family living next to Mirza Ghalib’s haveli in Old Delhi can bribe its guard and use it as THE Archaeological Survey of India and the ments, the prohibited area will be 25m. kitchen for a marriage occasion. Union Ministry for Culture are planning to ASI favors this graded protection as it Yes, this actually happened in liberalize the norms stipulated in the 2010 feels that present-day societal needs also December 2009. The writing on amendment to Ancient Monuments Act, by have to be taken into account. Additional the wall, literally and figuratively, providing for graded protection to monuDirector General of ASI, Dr BR Mani, says: goes largely unnoticed. ments. ASI has divided the monuments into “A kos minar or an inscription can’t be comAnd this is the state of affairs three categories, A, B and C, according to pared to the Taj or Qutb. It is not correct if despite strict laws. Since British their importance. we don’t allow any construction within 300m times, not only vandalism and If the plan is implemented, then of an inscription or a kos minar. It affects encroachment, but digging and Category A monuments, which include the the common man.” construction activity in the vicinity Taj, Qutb, Red Fort, etc, will continue to While the common man will get a big of a monument have been disenjoy the protection of 100m prohibited and relief, will it sound a death knell for smaller couraged as this would mar its 200m regulated area. In case of Category monuments that dot or cities, or will we beauty or weaken its structure. B, the 100m restriction will be reduced to learn to take pride in the heritage that lies Let’s start with the Ancient 50m, and in case of Category C monunext door? Monuments Preservation Act,

Graded protection

INDIA LEGAL May 31, 2015

SPOTLIGHT/ Heritage/Legal Tangles

Heritage is a non-issue in India due to the greed of builders, the pressure on land, general apathy towards monuments and lack of funds for their upkeep.

TOWERING EDIFICE Char Minar is part of the living heritage of Hyderabad

May 31, 2015

announcement about its intention and after considering objections within a specific period. As of today, there are about 3,600 monuments of national importance. Similarly, there are monuments which have become protected structures as per laws enacted by states. In 1958, further protection was granted to monuments under the Ancient Monuments and Archaeological Sites and Remains Act, which said that a certain area adjoining the protected monument could be demarcated as “prohibited area”. No construction work could be carried out here except under the supervision of an archaeological officer. There was also a provision for a “regulated” area, where some restrictions would apply. In June 1992, the central government issued a notification under Rule 31 of the Rules

under the 1958 Act, which, for the first time, declared an area of 100m from the protected limits as “prohibited” area, and a further 200m as “regulated” area. Finally in 2010, the 1958 act was amended by the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010, which barred any construction in the 100m area, except under the supervision of an archaeological officer. It further mandated that if any renovation work was to be done in the next 200m, a “competent authority” had to be consulted. Another component of the Act was the creation of a National Monument Authority which would create categories and grading of monuments and guard the 300m around them, and formation of competent authorities (involving specialized bodies like INTACH) in various cities.

nd therein lies the problem. With the 300m surrounding monuments, the battlelines seem to be drawn between the development and the conservation lobby. Both the development lobby and common people have a grouse that the 300m rule is impractical in present times as there are often residential property falling within it. While on the one hand, there are monuments like the Taj Mahal in the list of protected monuments, there are also “kos minars” (medieval milestones erected during Sher Shah Suri’s reign). Is it fair to put both on the same platform? Jayant Tripathi, a lawyer representing the ASI, says that despite the provision for categorization and gradation of monuments, the 100m prohibition applies to all monuments. In his paper, A 100 meter Problem in an INTACH publication, Built Heritage: A Role for

Incentives, he writes: “Here is an Act of Parliament that puts the kos minar at a higher priority than the needs of the community around it. If a person is unfortunate enough to have a plot of land, say, 90 meters from the kos minar, he cannot build his house on it.” Regarding the stringent rules for the next 200m (which may contain residential property), he asks: “Why is it necessary to take the permission of the competent authority to replace windows and doors? Or to whitewash or paint the house?” Even ASI Additional Director-General BR Mani agrees with this. Speaking to India Legal a few weeks before the recent move to liberalize the norms, he had said: “Our idea is that in case of further amendment, various gradations of monuments should be treated differently in terms of the 100m restriction. In case of monuments like the Taj and the Qutab Minar, the 100m restriction can be maintained; in case of the second category of monuments, there can be 50m restriction, and in case of the third category, a 25m restriction.” However, not everybody is in sync with this view. Dr Nayanjot Lahiri, eminent historian and archaeologist, is appalled that the ASI, which is supposed to protect monuments, has become a clearance agency, okaying one development project after another, irrespective of the norms. She says that if only present needs are to be taken into consideration, “then we

The development lobby and common people feel that the 300m rule is impractical in present times as there is often residential property falling within it. should be upfront and say that our past doesn’t matter to us.” Historically, the sanitized approach of leaving such a huge area untouched is not an Indian practice. In Jaisalmer, a “living heritage”, a sizable population lives within the fort area. In places, such as Rajwada, the palace of the Holkars in Indore; Char Minar in Hyderabad and Jama Masjid in Delhi, populations have grown organically (over a period of time) around the structures. And if the British had not razed the houses adjoining Red Fort when they recaptured Delhi after the failed 1857 mutiny, we would not have seen the vacant land where Independence Day celebrations take place. This concept of space and aesthetics is very British. These conflicting interests are evident in a legal issue over Jantar Mantar in New Delhi and adjoining high-rises. In 2002, the ASI took a builder, Narender Anand & Others, to court for undertaking construction of a high-rise in plot No 7 of Janpath, well within 100m of the Jantar Mantar complex, despite the 1992 notification. The New Delhi Municipal

MINGLING OF RAJA AND PRAJA (L-R) Rajwada, the palace of the Holkars in Indore, is surrounded by a crowded market; Habitation inside Jaisalmer Fort

INDIA LEGAL May 31, 2015

SPOTLIGHT/ Heritage/Legal Tangles

PRIORITIZE HERITAGE (Above) A kos minar, one of the many medieval milestones (Right) Jantar Mantar in New Delhi is surrounded by many high-rises

Corporation (NDMC) had sanctioned the construction in 2000, but when ASI raised objections, NDMC directed the builders to stop construction and seek ASI’s permission. Meha Mathur

hen the matter went to the Delhi High Court, the counsel for builder argued that there was no justification for banning construction in this case because a number of other high-rises had already come up, including buildings under Phase-II of NDMC’s plan (because of which a number of astronomical instruments have stopped working). These were also well within 100m of Jantar Mantar. When the high court directed the ASI to explain why it had not stopped the construction of these buildings, the response of the superintending archaeologist betrayed the helplessness of the agency. In its affidavit, ASI replied: “…Archaeological Survey of India does not have any machinery, either to demolish the construction or to stop the construction… It is significant to note that in the present case the construction was carried out by none other

In places, such as Rajwada in Indore, Char Minar in Hyderabad and Jama Masjid in Delhi, populations have grown organically around the structures. 58

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than the municipal authority.” In its order, the high court directed the central government to review the 1992 notification and relax the prohibited area of 100m on a case-to-case basis. It said there has to be “application of mind on these and other issues linked with preservation of monuments….” Finally, in 2012, it fell upon the Supreme Court to rule in favor of ASI, saying that in the name of development and accommodating the needs of multi-storey structures, the high court was not right in issuing a “mandamus” to the central government to review its 1992 rule. It said: “…if effective steps are not taken to check the same, these monuments may become part of history.” A balanced approach towards conserving monuments needs to be explored. Sifting greed from genuine needs and inculcating the right spirit for heritage and aesthetics through education and community involvement should be started. If this means relocating smaller structures to alternative places or the population staying close by without affecting their livelihoods, so be it. IL —With inputs from Shailendra Singh

SPOTLIGHT/ Living Heritage

PRISTINE PICTURE The Indraprastha College for Women in Delhi is bound by the heritage tag

HERITAGE TAG:

WHO WANTS IT? With numerous restrictions on old buildings, even changing a railing, a door knob or a tap is fraught with legal hurdles By Meha Mathur

AVE you ever heard of owners of 100-year-old buildings not wanting the heritage tag? That is pretty much what is happening in India, thanks to a draconian list of do’s and don’ts regarding them. These are properties more than 100 years old and which fall outside the ambit of the 3,600 monuments of national importance and the large number of protected monuments notified by state governments. Once listed by municipal authorities, these properties become heritage buildings. Many of them are still in

use and could be residential quarters, educational institutions, temples, mosques or government offices. But as AGK Menon, architect and convenor of INTACH’s Delhi chapter, says, while in England the heritage tag is taken as a matter of pride, here, it’s frowned upon. Not only can’t the outer façade of the building be tampered with, but one needs the permission of civic authorities to do so. And adding a floor is out of question. Thus, in the capital’s Indraprastha College for Women, a heritage building which was the office of the commander-in-chief during British times, no additional classrooms could be added to the single-storied structure despite a pressing need to do so. Dr Babli Moitra Saraf, principal, says: “We had to cull out spaces from within the building. We staggered the timetable for more students. We reclaimed abandoned rooms like godowns and storage. And we built semi-permanent structures.” Justice Gautam Patel, Additional Judge, Bombay High Court, in his paper, The Cup of Tantalus written for INTACH publication, INDIA LEGAL May 31, 2015

SPOTLIGHT/ Living Heritage

For a room with a view RENOVATION in Darbhanga Palace, Varanasi, has landed the owners in a legal mess. Manish Kumar, who bought the palace in the mid-90s, had plans to renovate and operate it as a hotel. The plan was sanctioned by the Varanasi Development Authority (VDA).

Renovation was to be done while maintaining the outer façade of the building. In November 1998, a restriction on development activities along the Ganga in Varanasi was imposed for the first time. But in 2001, the state government modified their earlier order, stating that

Preserving Built Heritage: A Role for Incentives, writes about Mumbai’s heritage laws: “This is a law based on mistrust. It does not trust owners of heritage properties to do the right thing… Its defining traits are its restrictive and prohibitory nature… The owner’s participation in the listing process is also limited.” He asked why the owner’s monetary interests should be considered trivial and sacrificed to “some nebulous and unidentified greater good”. Patel said the concern of conservation advocates that no wooden railing, door knob, tap or faucet can be installed or changed in old structures was hilarious. AT YOUR OWN PERIL Lawyer Jayant Tripathi, who represents the ASI, writes in the INTACH publication that if the only effect of a heritage status is the imposition of restrictions with harsh punishments

May 31, 2015

restoration of old and dilapidated buildings should be permitted, otherwise they will collapse. Following this order, Darbhanga Palace sought the services of INTACH to supervise the project from time to time. The renovation work was stopped in 2002, and the building was sealed in June 2003 for want of a “no-objection certificate” from the Archaeological Survey of India (ASI). The owners got this in July 2004. The work was again stopped by ASI in April 2005, following which the owners filed a writ petition in the Allahabad High Court in July 2005. The court asked the ASI to file a status report, till which time, a status quo would be maintained. In September 2005, the ASI passed a demolition order. Again, the owners knocked at the court’s door. In January 2008, the high court quashed the demolition order and allowed the owners to restructure the building. But this has not been the end of travails for Darbhanga Palace. Now, Kautilya Society, which is located just at the back of Darbhanga Palace, has filed a PIL in the Allahabad High Court,

for violation, then the owners would certainly cavil at being accorded such a status. “Why should he be the person responsible for the preservation of ‘our heritage’ at ‘his cost’?” Incidentally, western countries also have very strict laws for adhering to architectural norms. In fact, FR Allchin, an eminent historian on Ancient India who resided close to Cambridge University, had to seek the permission of civic authorities even for minor repairs. But Vikas Dilawari, leading conservation architect whose work in Mumbai won him the UNESCO Asia Pacific Conservation Architecture Award, says: “The laws here can’t be as rigid as that of the West as the social setting and environment are very different. Conservation is culture-specific and is to be treated as part of sensitive development if it has to work in our environment.” So what’s the correct approach? “You can’t protect heritage without having incentives,”

claiming that the renovation work had tampered with the heritage building, altering its height. Manish Kumar counters these claims saying that at the time the palace got the sanction for renovation in 1997, it was not even in the heritage zone. Also, the work had been carefully supervised by INTACH experts, and a sewage plant had been installed within the premises as per the requirement of the VDA, so that it was not discharged into the river. He adds that the back wall of the building, which could have crumbled, had undergone renovation, and not the whole building. He says the PIL is more of “personal interest litigation”, as the Darbhanga Palace blocks the view of the Ganga of the Kautilya Society. Kalyan Krishna, head of the Varanasi chapter of INTACH, says there’s a need to preserve the crumbling structure along the Ganges in Varanasi. Demolish only those structures which do not gel with the ethos of the place. A major tourist attraction is the architecture along the Ganga, and that needs to be preserved. Watch out for a detailed coverage in India Legal soon.

says Dilawari, and suggests that encouraging gestures like discount in property taxes and lease rent be given. Tripathi endorses this and says: “The owner of a heritage building, for whom it is more a home than a monument, needs to be given some incentive not to add that extra floor or not to cover the façade with sun-reflective sheet.” GIVE INCENTIVES Gautam Patel too talks of incentives. “Conservation of privately held heritage is about money. Can we not find ways to make conservation financially attractive? What better incentive could we provide to an individual in the 21st century city than money and tax relief?” Patel suggests that a public heritage fund be created to restore private buildings with heritage tag. Experts cite examples where heritage has been conserved without sacrificing anyone’s

Anil Shakya

“This is a law based on mistrust. It does not trust owners of heritage properties to do the right thing…” — Justice Gautam Patel, Bombay High Court interests. For example, the havelis in Rajasthan, which have been converted into hotels, have turned their heritage tag into an advantage. Several temples too have been maintained by the devasthanams (trusts) which manage them. The Dilwara temple, for example, is maintained very well by the Jain community. There’s also the option of changing the nature of use of a structure to earn money and preserve its historicity. In Hauz Khas, Delhi, ordinary homes have been converted into boutique hotels and designer outlets to cater to an upmarket clientele. Similarly, in England, several old industrial installations have been imaginatively reused as fashion houses, exhibition grounds, eateries, etc. Through an imaginative and innovative approach, and a bit of flexibility, we can preserve the past and meet the present needs. IL

HERITAGE IN EVERY NOOK Bharati Bhavan Pustakalay, Allahabad, established in 1889

INDIA LEGAL May 31, 2015

ACTS AND BILLS/ Handloom Reservation Act

Looming crisis averted The government was mulling over amending the Handloom Act that protects millions of weavers. Better sense prevailed, but is the threat over yet? By Ramesh Menon

ILLIONS of workers in the handloom sector heaved a sigh of relief this fortnight as the government decided not to go ahead with amendments to the Handloom (Reservation of Articles for Production) Act. Enacted in 1985, it protected traditional handloom weaves from being copied by textile mills and power loom operators. It listed goods and textiles reserved for production by traditional craftsmen and weavers. It ensured incentives to keep the tradition alive. NO LOGIC The fact that the government even mulled over amending this act goes against the face of logic as India leads the world with it unique handloom designs. Almost every state in India has its own unique designs. For some time now, the powerful power loom lobby has been pressurizing the textile ministry to amend the Act, hoping to corner the benefits of the protected handloom sec-

May 31, 2015

UNI

The mechanized power loom sector hoped to get the right to copy traditional handloom designs, taking away once and for all the strength of their distinctive weaves and designs, which machines have not been able to copy till now.

tor. Power looms produce 60 percent of India’s fabrics. Ironically, it goes against the concept of “Make in India” touted aggressively by Prime Minister Narendra Modi even on his foreign tours. Why did the government even consider such a move? Observers say it was because business-hungry pressure groups were trying to get whatever concessions and advantages they could with the present government, which had sworn to boost industry and business. This is not necessarily a bad thing, as businesses have to grow to resuscitate the present sluggish economy. But it cannot be done sacrificing the future of the handloom industry that employs millions of non-agricultural labor and skilled artisans. MYOPIC VISION Even the UPA did not care much for handlooms and did little to let it grow and flourish. In fact, at Planning Committee meetings, Deputy Planning Commission chief Montek Singh Ahluwalia would openly say that the handloom as a sector was doomed. He would coldly tell handloom enthusiasts, which included bureaucrats, that he did not want emotional arguments but facts to convince him of how handlooms had a future in India. Ashoke Chatterjee, former president, Crafts Council of India, told India Legal: “The current retraction by the government is not in itself a guarantee that the crisis for handlooms has ended. Less than two years ago, a similar assurance was given to the

handloom sector. There was a move to fix four horse power motors to handloom units so as to change the definition of ‘handmade’ products. This time, the move was to help power looms benefit. It indicates a deep indifference and contempt for what is India’s greatest contemporary advantage.” When Dastkar put out an online petition demanding that the Handloom Reservation Act be left alone, it got over 25,000 signatures in a week. Many of the signatories were foreigners. Generally, the present discourse revolves around how handloom is a high-end product for the wealthy. But that is not true. The fact is that handlooms have a huge market in India among all sections, apart from a hungry global market, which sees it

POWER TO THE HANDLOOM (Top) Charkha, the spinning wheel, became synonymous with India’s struggle for Independence (Above) Our rich handloom sector generates millions of jobs

INDIA LEGAL May 31, 2015

UNI

ACTS AND BILLS/ Handloom Reservation Act

ETHNIC PRIDE (Top and above) Handloom products enjoy a huge market not just abroad but in India too (Top right) Handloom weaves are a painstaking process

May 31, 2015

not only as an art but as healthy wear that allows the skin to breathe. Five years ago, the European Union coined a phrase: “The future is handmade.” This was done to bring back to Europe a culture of encouraging crafts and creativity. PRIZED POSSESSION Handmade designs and prints by handloom weavers have a special attraction for buyers who are ready to pay more for it. This is what the mechanized power loom sector wanted to cash in on. It hoped to get the right to copy traditional handloom designs, taking away

once and for all the strength of their distinctive weaves and designs, which machines have not been able to copy till now. Many handloom designs are exclusive. There are four dozen families in Nepura village of Bihar, for instance, who weave the “Bavanbuti” or 51 motif saree that is derived from Buddhist traditions. They also weave the famous Maldehi, Sundrahi and Kirkiri saris. Handloom sarees that adorn the wardrobes of many women include Chanderi, Paithani, Patola, Kanchipuram, Gadwal, Muga and Banarsi. All of them represent the purest traditions of highly skilled weavers. Clearly, this is an art that should be protected and helped to grow. Points out Chatterjee; “Handlooms have huge social, economic, environment, cultural and even spiritual strengths. Yet, we treat it with such indifference. Look at the potential. IT can give India only two million jobs, but handlooms can give 25 million jobs and that too in rural areas. As India’s emphasis is on non-agricultural job creation in rural areas, handlooms cannot be neglected.” There is no doubt that the power loom sector should also flourish. The solution is to create a new policy for them so that it creates millions of jobs as it is easy to set up. Power looms set up in the 1970s changed the face of Surat, creating both jobs and wealth. This would also jell with Modi’s policies of boosting business and creating jobs. However, powerlooms also need to be reigned in. Says Chatterjee: As handlooms are popular, a lot of power looms produce cloth which looks similar. Handloom products need to carry a special mark to show that

Chikankari’s fate

it is hand-made, but it is not enforced. “Power looms should not be allowed at all to sell spurious handloom.” . NURTURE HANDLOOMS Even before Independence, Indians nurtured the handloom sector. It requires no electricity, needs low investments and is easy to set up for poor households with small loans. The Modi government has always underlined the need to develop skills; here is a sector where it can start with. As it is eco-friendly, handloom’s international status is only growing, marking India’s unique craft as numero uno in the world. It will be worthwhile to ensure that it stays that way and is not diluted to help mechanized systems make more profits. The handloom sector contributed `2,812 crore in 2013-14. What it needs today is government help in terms of proper infrastructure, investment and planning. We must not forget that after agriculture, handloom is the largest employer in rural India. It takes care of millions of livelihoods in rural India, preventing them from migrating to cities. And social media has to some extent helped in the popularity of handloom sarees. The #100sareepact was a movement started by Ally Matthan and Anju Kadam to encourage women to wear 100 sarees in a year. It has now gone viral, with stories of women who talk of their exotic handloom designs, including rare weaves gifted to them by their grandmothers and mothers. Jaya Jaitley, who has worked with craftsmen and artisans for the last four decades, feels such moves will give a fillip to the handloom sector. Says Chatterjee: “There has been no mar-

VARIOUS old forms of art all over India are struggling to stay alive. One of them is chikankari, the famous form of embroidery from Lucknow. Madhvi Kukreja of Sanatkada, an NGO which works to revive and restore traditional crafts, says: “Originally, Chikan embroidery was done on thin white cotton cloth. But today, about 90 percent of chikan work is done on synthetic cloth. It is rare to get a pure weave which used to be the fabric for chikankari. If this Act had been repealed, the original chikankari would have been completely lost, having lost the feel of that handwoven original fabric.” Ali Hasan, who runs a forum called Jahan-e-Awadh that works to preserve and promote Awadh culture, says that if this Act is ever repealed, it will be a fatal blow to

artisans working on zari-zardozi and chikankari. “These artisans, who are generally from small villages around Lucknow, are exploited by middlemen who make them work for as low as `20 a day. While there are very few handlooms left to weave that soft-toskin fabric characteristic of chikankari, the embroidery itself is threatened by machine alternatives,” says Hasan. “A similar embroidery called Hakoba, also known as Chinesechikan, is hampering original chikan market. Being machinemade, it is fast and has better finish giving close competition to chikankari,” he says. As thousands of similar artisans are already struggling with a plethora of problems all over India, repealing the Handloom Reservation Act would have been adding insult to injury. —Zoya Rasul

keting management in India for the last 60 years for handmade products. There is a demand for it, but there is no marketing to meet it. The future of handlooms should not be looked at from the prism of concessions and reservation, but from the point of creating demand and helping the hand-made fabric cater to a huge market.” As of now, the handloom sector has again started breathing easy. But if the government is really serious about the Made in India slogan, it should not consign its arts and crafts into the dustbin of history. IL

UNEVEN COMPETITION (Top) Ashoke Chatterjee, former President, Crafts Council of India, is concerned about the indifference to handlooms (Above) Power looms, if allowed access to traditional weaves, will wipe out many jobs in the handloom sector

INDIA LEGAL May 31, 2015

ENVIRONMENT/ Okhla Waste Plant

POISON in the AIR

Photos: Anil Shakya

The residents of Sukhdev Vihar in south Delhi are battling toxic ash from the nearby Jindal waste-to-energy plant. Investigations show that many legal norms were flouted with impunity By Shamir Reuben 66

May 31, 2015

aptain RS Choudhry, a 78year-old resident of Sukhdev Vihar in South Delhi has spent a stressful winter. He recounts how difficult it has been to breath. “I haven’t been able to go out of my house for a walk for nearly two years,” he says gasping. “My doctor says my lungs can’t absorb oxygen because of a medical condition I developed a few years ago. The only time I go out of the house is to go in a car to visit the doctor. Even a few steps make me breathless and I can’t even climb the stairs,” he says. Adding to his misery is a waste-to-energy

the lookout for an effective solution. Potential reprieve came in the form of a new technology called refuse-driven-power-generation (RDF), which offered to solve Delhi’s aforementioned concerns by processing municipal waste to produce electricity, an almost irresistible proposition. plant nearby, which has hit the headlines in the last few years for the environment and health damage it is causing. “I have seen black matter flying outside. Sometimes it enters the house and the walls turn black. Hamaara time toh aa hee gaya matlab (My time is almost up),” he says with a weak smile. “I don’t ask for the plant to be moved; all I ask is for authorities to ensure that it causes no more damage.” The problem stretches back to the late 1980s when Delhi was staring at the dual dilemma of power shortages and a lack of proper waste disposal mechanisms. Sensing that the problem would escalate with time, the Municipal Corporation of Delhi was on

UNWELCOME NEIGHBOR The plant puts the lives of residents in next-door localities like Ghaffar Manzil in danger

AMBITIOUS MOVE Soon, a `25-crore agreement was struck with Denmark and a refuse-incineration-driven power plant that would produce 3.75 MW of electricity after processing 300 tons of waste daily was imported with technical assistance from Danish firm Volund Miljotecknik. It came up in 1987 in Timarpur. The ambitious initiative looked set to revolutionize India’s waste management. Just six months later, the plant was forced to shut down, though officially it was declared closed in 1990. It was found that for the plant to function at full efficiency and provide optimal output, the calorific value of the waste required was 1,462.5 k-cal/kg. INDIA LEGAL May 31, 2015

ENVIRONMENT/ Okhla Waste Plant

Okhla and has seen vehement opposition from various quarters, be it in the form of rallies, a PIL, 27 non-hearings in the Delhi High Court, multiple National Green Tribunal hearings, a TV segment on Satyamev Jayate, a letter from then environment minister Jairam Ramesh to Delhi Chief Minister Sheila Dikshit and more than 80 letters from doctors in neighboring hospitals raising concerns about the plant’s toxic exhausts. Yet, Jindal Ecopolis’ WTE plant continues its operations undeterred.

DISTRESS CALL Captain RS Choudhry of Sukhdev Vihar is suffering from breathing ailments, aggravated by the polluting plant

But after buying the plant, setting it up and starting operations, the MCD woke up to the fact that Delhi’s waste had a calorific value of only 600-900k-cal/kg. It was almost like buying an expensive piggy bank and then realizing there were no coins to put in it. Unfortunately, waste-incinerators were also started in Hyderabad, Vijaywada, Lucknow and Chandigarh. All of them were eventually shut down. However, a plan for a new TimarpurOkhla waste incineration plant was already in the pipeline by mid-2000. It proposed a “new and improved version” on the old Timarpur site, and an additional plant in Okhla. The renovation of the Timarpur plant was later scrapped. Jindal Ecopolis submitted its bid for the Okhla plant on January 24, 2008, and the shareholder agreement was signed on February 22, 2008. This was called the Jindal’s Waste-to-Energy (WTE) plant. It has spelt havoc to the health of residents of Sukhdev Vihar and neighboring colonies in

The biodegradable waste in India can be converted into compost at a much cheaper cost. What was the need to set up a massive plant to burn it instead? 68

May 31, 2015

SERIOUS NEGLIGENCE “On certain days, the sky turns black,” says Ranjit Devraj, a journalist and resident of Sukhdev Vihar. “There is an entire block of flats which is empty, because no one wants to live there. Switching on the cooler will leave black spots all over the house. And to think we have been fighting this for more than four years.” From Devraj’s terrace, the plant is visible even through the thick blanket of fog. “It is obvious that there cannot be a plant like this near a residential area. The distance between the compound wall of the colony and the plant is merely 200 meters.” The list of infringements doesn’t end there. The Environmental Impact Assessment (EIA), a mandatory document to be submitted by any plant to the Delhi Pollution Control Committee for any industry to come up, was submitted in April 2006. However, Jindal did not submit a new EIA as required by law. A number of other inconsistencies have been found by multiple publications, as well as institutions like the Global Alliance for Incinerator Alternatives, which consists of over 600 NGOs, grassroots organizations and individuals in over 90 countries. These include: The executive summary of the report proposed that the project would include a power plant, bio-methanation plant, a bio-digester and a processing plant that converts municipal solid waste (MSW) to RDF fluff. As of today, the facility still has neither a biomethanation plant, nor the bio-digester; and the plant that changes MSW to RDF fluff is also essentially fluff. The report states that the biogas produced by the bio-methanation plant would be used as auxiliary fuel for the

boilers, but since there is no bio-methanation plant, what fuels are the boilers using? The initial report also states that the estimated calorific value of the waste will be between 2,500-3,000 kcal/kg. But the estimated value of the waste now is around 1,400 kcal/kg. The report states that there is no immediate threat to the environment. This, despite the Okhla Bird Sanctuary being about 2 km away. Moreover, the initial environmental assessment itself reveals that three of the five quality monitoring stations placed in and around the plant showed that suspended particulate matter (SPM) levels greatly exceeded national ambient air quality standards even before the plant was constructed. Why was the plant allowed an environmental clearance then? IRRESPONSIBLE OPERATORS In 2011, a year after the Okhla plant started operations, the Central Pollution Control Board (CPCB) held a meeting with eminent officials, including Allard Nooy, CEO, Timarpur Okhla Waste Management Company, Dr Chetna, scientist, Department of Environment, government of Delhi, IIT-Delhi, DPCC and the Delhi Jal board. The committee raised concerns regarding the plant, which can be found on the CPCB website.

The trail of smoke 1987: A refuse-incineration-driven power plant came up in Timarpur with Danish help. It was meant to produce 3.75 MW of electricity after processing 300 tons of waste daily 1990: Plant was officially declared

shut as the calorific value of waste needed for the plant to function optimally was not there 2008: Construction of New Timarpur-Okhla waste incineration plant called Jindal Ecopolisâ&#x20AC;&#x2122; Waste-to-Energy plant began

These were: Apprehensions about effective segregation of plastics in manual recovery operations Lack of clarity on disposal of ash and effluent generation Impact of the project in the existing scenario wherein ambient air quality norms are already exceeding Micro-level environmental impacts that are not addressed in the EIA report Operational limitations Three years on, nothing has changed. The website of the plant states that the fly ash generated is used to make bricks. However, it is a fact that ambient air quality has visible fly ash and waste segregation leaves a lot to be desired. In 2011, a six-member expert panel SMOG SCREEN Haze surrounds Sukhdev Vihar located in the vicinity of the plant

INDIA LEGAL May 31, 2015

ENVIRONMENT/ Okhla Waste Plant

plant utilizes multiple combustion chambers, rotation washers and a catalytic converter larger than 98 feet. A similar plant—AVG Hazardous WTE plant in Hamburg—which has a capacity of 890 tons per day, required an initial investment of 186 million Euros way back in 1994. The Jindal plant with a capacity of 1,300 tons daily, reportedly had an initial investment of just 26.6 million Euros. Has the plant compromised on safety with such a cost difference?

Monitoring stations in and around the plant found presence of suspended particulate matter much above the acceptable limit. EVERYDAY CURSE A layer of dust can be found on cars parked in the locality

May 31, 2015

even made a surprise visit to the plant to inspect pollution levels. The permissible limit of dioxins and furan levels in Boiler Stack 1 had to be 0.1 ng TEQ/NM^3. However, inspection revealed that the actual level was a shocking 12.413 units. Boiler Stack 2 also exceeded limits with 2.758 ng level. Incidentally, dioxins and furans are some of the most toxic substances known to man and are capable of causing serious health conditions such as respiratory complications, liver failure and even cancer. In animals, dioxins are known to cause wasting syndrome or delayed death. So what could be the effect on the Okhla bird sanctuary nearby? In similar WTE projects, dioxins and furans are superheated to neutralize chemical bonds, rendering them useless. Speaking to Spiegel.de, a German online weekly, Joachim Beyer, head of the hazard waste incineration department at Bayer Industry Services (Germany), said the process requires intensive care. The process does not end with superheating the compounds to 1,0001,200 degree Celsius. To prevent recombination of these toxins after cooling, the WTE

WRONG METHODS “What defies my understanding is, why would anyone burn biodegradable waste?” asks Satwik Mudgal, senior research associate, industry and environment, Centre for Science and Environment. “A composting plant, even an exorbitant, world-class facility, would cost around `50 lakh at the most. Indian waste composition is different; it would make more sense to spend less money and build a composting plant than burn it altogether.” He adds: “I spoke to the GM of Timarpur Okhla Waste Management Ltd a few years back. I asked him whether they burnt mixed waste, and he said yes. I further asked him, whether they are burning biomedical waste and other biodegradable material. He said yes again.” When contacted, the current executive director of the plant, Rakesh Kumar Aggarwal, refused to talk to this reporter and hung up on two occasions. Until a few months back, the Jindal plant wasn’t the only culprit contributing to Okhla’s woes. Synergy’s Biomedical Incinerator in the same locality was also in a legal tangle with the residents of Sukhdev Vihar. After several high court hearings and a contempt of court, the plant was forced to shut down in December 2014. Ironically, every legal infringement that this plant was accused of also applied to the Jindal plant. If a smaller incinerator can be shut down, how is a larger one being allowed to function? Meanwhile, the residents of Okhla are girding up for a big fight. They have a Facebook page called “Okhla ka Ghosla” and hold protest rallies on a regular basis. But it looks like a long fight ahead. IL

MORE NEWS.../international

Canada’s stringent anti terror law DESPITE opposition from civil society, politicians and legal experts, Canada is all set to pass a strict anti-terror law which will give sweeping powers to the police. The Bill, known as C51, will be tabled in the House of Commons where PM Stephen Harper is expecting an easy victory. The new law would let law enforcement agencies arrest anybody on mere suspicion. It would also increase the preventive detention period from three days to seven days and entails maximum sentence of five years in jail. Intelligence agencies would also be allowed to work outside Canada for the first time. Critics fear this would lead to a police state. Hundreds of people are protesting against the Bill.

“Egypt tyrannizing journos” ACCORDING to a report by Amnesty International, Egyptian officials are trying to tyrannize journalists by putting dozens of them behind the bars without any charge. The suppression started when

Abdel Fattah Al Sisi came to power following the expulsion of Mohamed Morsi. Amnesty further added that anyone who criticizes the country’s government today risks being put in jail. Australian Peter Greste was deported in February, while Canadian-Egyptian Mohmed Famy and Egyptian Baher Mohamed are undergoing a retrial after a court found flaws in the original case. Among other incidents cited by the Amnesty report were 25-year prison sentences given to 14 journalists recently on charges of spreading false information and inciting violence.

Skype vs Sky A European court ruled that the name of video chat platform Skype and British broadcaster Sky sounds so similar as to create confusion among people. The ruling debars Microsoft from filing a trademark for Skype’s name and logo. This is the second time Microsoft has been involved in a court case with Sky. Earlier, British Sky Broadcasting Group forced Microsoft to rename its Sky Drive cloud storage to One Drive after a UK court ruled it was too similar to Sky. Sky provides TV services primarily in the UK, with channels like Sky One, Sky Sports, and Sky Movie.

Helping Libyans get justice A NEW Legal Foundation is being launched in Libya to unite tribes under the umbrella of justice. The idea was mooted by businessman and media tycoon Hassan Tatanki, according to a report in Daily News. The foundation will support the civilian population in Libya get access to justice and will support initiatives that preserve human rights and redress criminal and violent activities. “Libya is a tribal society; if a tribe is affected and does not receive justice, then they will resort to retaliation and there will be an escalation’’ Tatanki told Daily News. Though the Legal foundation is in its initial stage, the founders desire to open branches across Libya to collect information about crimes and criminals so that they could nail the offenders.

Four sentenced for killing in Afghanistan A PRIMARY court in Afghanistan has awarded capital punishment to four men for their involvement in burning and killing a woman in March on false charges of burning the Quran. Farkhunda, 27, was pushed by the police on the roof and dropped from it and run over by a car. The body was set on fire while the mute spectators watched. Eight men were sentenced to 16 years in prison. The four sentenced to death are named Zainuddin, Mohammad Yasin, Mohammad Sharaf and Abdul Bashir.

INDIA LEGAL May 31, 2015

GENDER/ Marital Rape

Conjugal body blow Indian law does not recognize marital rape as a crime despite 52 countries doing so. Isn’t it high time succor was given to these traumatized wives? By Pulkit Verma

ARITAL rape is a crime few talk about. That’s not surprising in a country where even ministers hold retrograde views about it. Union Minister of State for Home Affairs Haribhai Parathibhai Chaudhary said in the Rajya Sabha recently that marital rape cannot be criminalized in India as marriages are sacred here. However, the “sacredness” has not prevented men from subjecting their wives to untold perversions. Marital rape is a sexual act performed by

May 31, 2015

a husband forcefully or without consent of his wife. With increasing incidence of this surfacing, there are growing demands to make it a crime. NO CONTROL Chitra Awasthi, founder of Rit Foundation, had earlier this year filed a PIL demanding that marital rape be treated as a crime as there is a dire need for it. Giving instances of brutal intercourse both among villagers and urban, educated couples, she says nothing saddens a woman more than not having con-

trol over her body. “Women feel bad when husbands vent their anger through sex. No woman would knock on courts’ doors unless things become unbearable,” she says. A legislation, she says, will have a deterrent effect. According to the National Crime Records Bureau, in 2011 alone, 24,206 rape cases were reported against women and their number has gone up by 50 percent in the following years. In fact, marital rape is a crime in 52 countries, including the US, the UK, Israel, Russia, Sweden, Poland, and France. In some countries, there are dedicated helplines to support victims of sexual abuse. In India, on the other hand, the government and lawmakers are reluctant to make marital rape a crime as they feel such provisions could be misused against husbands, resulting in destruction of the institution of marriage. Barkha Shukla Singh, chairperson, Delhi Commission for Women, recounts horrifying cases where young, educated women decide to end the marriage because of insistence on unnatural sex. “They have blue marks all over the body, indicating violence, because the husband cannot take no for an answer. Lust is increasingly on the rise.” Dr Rajat Mitra, director of Swanchetan Society for Mental Health says that according to a study, approximately one-third of total domestic violence cases reported are sexual assaults by husbands or intimate partners. These statistics show the strong streak of chauvinism among men in India.

POWER EQUATION But why would a man rape his wife? Researchers who spoke to husband rapists across the world concluded that they raped to reinforce power over their wives or families or to express anger. This belies the common myth that they rape because the wives have withheld sex. According to CNN, the number of women sexually assaulted by their husbands or someone known is 40 times those attacked by men they don’t know. Even the law doesn’t recognize marital rape as a crime. As per Section 375 of the Indian Penal Code: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.” In contrast to this, the Hindu Marriage Act defines the minimum marriageable age as 18. This strange contradiction should be sorted out first. Vagueness in laws and lack of legal protection makes many women reluctant to come forward when raped by their husbands. A division bench of the Supreme Court in the Vidhya Viswanathan vs Kartik Balakrishnan case recently ruled that if a spouse does not allow the partner to have sex for a long time, without sufficient reason, it amounts to mental cruelty. Thus, the apex court makes it clear that sex is an important obligation of a spouse. However, marriage in itself does not give license to an individual to have forced sex with his partner and therefore, complaints

“A rape is a rape. A relationship with a rapist doesn’t justify anything. In fact, it leaves you all the more traumatized and harrowed.”

—Urvashi Dixit, a working woman

TRUST DEFICIT Women activists want marital rape to be included in the ambit of domestic violence Photos: UNI

INDIA LEGAL May 31, 2015

GENDER/ Marital Rape

Sacred institution? THE Justice Verma Committee report recommended legal reforms to reduce violence against women. Although various changes were implemented, the suggestion to make marital rape illegal was disregarded. Neither did the Law Commission of India, while making its 172nd Report on Review of Rape Laws, recommend criminalization of marital rape by amending the exception to Section 375 of the IPC. Hence, at present, there is no proposal to bring any amendment to the IPC in this regard. Though India has taken some significant steps in fighting marital violence in recent years, criminal recognition of forced sex in marriages is long overdue. The first positive step was taken when the Domestic Violence Act, 2005, was passed, wherein a woman could file a civil case for separation from her spouse. Section 376 (A) deals with marital rape only when it is with regard to judicially separated partners. Currently, the only recourse for victims is to lodge a complaint of marital discord or domestic violence. —Shailendra Singh

May 31, 2015

FIGHTING IT OUT (L-R) DCW chairperson Barkha Shukla Singh; founder of Rit Foundation Chitra Awasthi who filed the PIL to have marital rape recognized as a crime

of sexual assault or cruelty can be lodged by a wife in such cases. “Non-recognition of marital rape in India, a nation set upon the bedrock of equality, is hypocrisy in law,” additional judge Dr Kamani Lau was reported as saying in a case study by Pune Law University. In a study done for WHO, a woman from the North-East describes being hit by her husband and forced to have sex. She says: “I thought this was natural and the way a husband behaves.” Sadly, the education system has not given young girls a proper understanding of sexuality or how to be treated with respect. And politicians with retrograde mindsets don’t help either. On top of that, many religious doctrines outline sexual acts as “duty” by wives. Parents too are reluctant to talk to their children about the birds and the bees. SCOPE FOR MISUSE There is, of course, the other side of this debate. Delhi-based chartered accountant Mayank Gaur says that declaring marital rape a criminal offense would lead to misuse of the law, like in the case of Section 498A of the IPC. It states: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” As Section 376B states that marital rape is not a criminal offense within the Indian legal framework except during the period of judicial separation of the partners, that would be a sane thing to do in such cases.

Urvashi Dixit, a working woman in Delhi, says: “A rape is a rape. A relationship with a rapist doesn’t justify anything. In fact, it leaves you all the more traumatized and harrowed.” There is also an urgent need to get rid of the archaic concept of rape as an act of vaginal penetration. There are many more dimensions to this crime. Though concerns have been raised about misuse if such a law is passed, activists and women’s lawyers discount these. “Any law has a scope for abuse. But that doesn’t mean we do away with them,” says Chitra Awasthi. Nagpur-based Indrayani Patani, former president of the All India Federation for Women Lawyers, says that since it would be difficult to prove such charges, the version of women will have to be given credence. But she discounts fears of misuse by asking: “Who doesn’t want a harmonious family? It’s only when suffering becomes unbearable that you seek legal help.” There are remedies under the Protection of Women from Domestic Violence Act, passed in 2005, in case a woman is a victim of domestic violence, including sexual abuse. Women have started using Sections 354 and 377 to prosecute husbands for sexual abuse. Section 354 punishes “assault or criminal force to a woman with intent to outrage her modesty”, while Section 377 penalizes “carnal intercourse against the order of nature”. But rape within marriage is not explicitly acknowledged. It is high time atrocities committed within this scared institution are dealt with through legal safeguards. —With inputs from Meha Mathur IL

IS THAT LEGAL?

Hold classes or refund money A reputed MBA coaching institute charges `25,000 as admission fee from a working student for special classes, but the classes are not held as scheduled. The student demands a refund, but the institute refuses to return the money. What legal action should the student take? Private coaching institutes are free to devise their time schedule for classes. And normally, the timings are flexible to suit regular and working students alike. Students on their part must be clear

about the time schedule before enrolling themselves with these institutes. This is more important for working students. However, if an institute has agreed to offer classes at a time that suits a working student but later fails to do so, it is only inviting legal action. A suit for recovery against the coaching institute can be filed in a civil court and legal remedy sought. The suit must be supported by sound documentary evidence that establishes the non-seriousness or faulty behavior of the institute.

States in the dock Often, governments allow Industrial units to be set up as populist measures. But more often than not, these units flout environmental norms, jeopardizing people’s health. Can the affected people move court? No state government can announce populist measures like setting up industrial units by flouting environmental norms. Every industrial unit proposed to be set up in any state has to strictly adhere to the norms and guidelines laid down by the environmental ministry. Environmental clearance is granted for setting up an industrial unit only if environ-

mental norms are met by the proposed unit. In case an industrial unit is granted clearance by the state government but is still seen to have flouted environmental and safety norms, there are legal remedies. Any person—not just the aggrieved people—can approach the court in public interest to seek suitable directions against the state government or the said industrial unit. The formation of the National Green Tribunal in 2010 is a major step forward for protection of the environment from arbitrary acts of the government.

For a safe drive

Not old enough to drive

Despite repeated instructions from the Delhi Police, autorickshaws in the capital have failed to instal GPS devices. What legal action can be taken against errant drivers?

Road accidents involving minors are on the rise. Shouldn’t they be awarded stringent punishment for taking to the wheel illegally? If an accident is committed by a minor, the proceedings are conducted before a Juvenile Justice Board, constituted under the Juvenile Justice Act, 2000. The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. The act mandates a special approach towards the prevention

The Delhi High Court has already given its approval for installing GPS devices in autorickshaws. The court has made it clear that it won’t interfere with the government’s notification that mandates each autorickshaw owner to fit the device. Once a notification has been issued, legal action can be taken against a driver if his vehicle is found without a GPS device. Challans can be imposed on the autorickshaw owners and vehicles impounded. — Compiled by Shailendra Singh Illustraions: UdayShankar

and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. INDIA LEGAL May 31, 2015

GENDER/ Case Study/Gujarat rape case

Keeping a child born out of rape is not an easy decision. The state must give all support to such victims By Kaushik Joshi

HILE rape is traumatic, it becomes doubly worse when it results in a pregnancy and that too, an advanced one which can’t be terminated. A piquant situation arose this year when a 23-year-old mother of two, who was gang-raped, wanted to terminate her 28-week pregnancy. It was rejected by a single-judge bench of Justice Pardiwala of the Gujarat High Court on April 16, who asked the victim “to bravely go ahead with the pregnancy and when the time comes, she should deliver the child”. The victim was allegedly abducted by seven men while she was sweeping outside her house in Surat and kept in confinement between July 13, 2014 and March 14, 2015. One day, when she got the opportunity, she fled. But by the time she lodged an FIR, she was 24

May 31, 2015

weeks pregnant. The victim then approached the principal civil judge of Dhandhuka for termination of her pregnancy, but it was rejected. She then approached Gujarat High Court, which rejected the applicant’s plea for abortion, citing Section 3 of the Medical Termination of Pregnancy Act (MTPA), 1971. WHEN TO TERMINATE Section 3 of the MTPA states that a pregnancy may be terminated by a registered medical practitioner (a) where the length of the pregnancy does not exceed 12 weeks or (b) where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant wo-man or of grave injury to her physical or

mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Rape cases would be included in such provisions as these are likely to cause anguish and could lead to grave injury to the mental health of the pregnant woman. However, not all pregnancies can be terminated. In the present case, the court did not allow termination observing that if labor is induced for abortion, there is every possibility it would result in a live birth as the fetus was 28-weeks old. Justice Pardiwala said “… howsoever harsh one may find the law, one has to respect it. She

SUPPORT VICTIMS SEWA’s national coordinator Renana Jhabvala

must understand that termination at this stage will put her own life in peril.” Following the judgment, the victim said she would honor the directive of the court. This grave risk to such mothers was corroborated by Dr Hasmukh Agarwal, an Ahmedabad-based gynaecologist, who said: “Aborting the fetus at a later stage involves great surgical risk. It could cause excessive bleeding, endangering the life of a woman.” STATE’S RESPONSIBILITY Mitesh Amin, the public prosecutor who appeared for the state, submitted before the court that the state would take care of the applicant for the delivery of the child and if she was disowned by her husband and family, the state would provide her adequate shelter and protection. It is a fact that victims of rape feel traumatized and suffer from disturbance in sleeping and eating patterns. Renana Jhabvala, national

co-ordinator, Self-employed Women’s Association (SEWA) and Chair, SEWA Bharat, says: “Apart from the trauma and the pain associated with rape, the greatest difficulty is the shame and stigma that the victim has to endure. Many believe that a woman once raped, is shamed for life and must live almost out of society.” This attitude has to change considering that in 2011, 24,206 rape cases were registered in India and there was a new rape case reported every 22 minutes. SUPPORT WOMEN Renana wants the court to be more supportive of the woman by censuring her husband if he deserts her. “A person can be brave only if

SPEED IT UP Ahmedabad’s Women’s Action Group Secretary Sara Badliwala

authorities support her. If the husband’s family does not accept the girl, both the husband and his family should be severely censured by the court. The court should impose a heavy fine on the family if they reject her,” she says. Would harsher punishment lead to fewer crimes? Sara Baldiwala, secretary, Ahmedabad Women’s Action Group, says; “It’s not harsher punishment but better and speedy implementation of the law that we expect. The police should catch the culprits without losing time. In cases like rape, maximum punishment should be awarded. Also, when a rape victim comes to us seeking abortion, we don’t find it worthwhile to go to government dispensaries because there is no secrecy. Private clinics charge higher fees. There should be a special cell for such cases in the government hospitals.” Sadly, sexual violence is one of the most under-reported crimes all over the world and it will remain so till society changes its views about rape victims. IL

LIFE IS IMPORTANT The Gujarat High Court cited the Supreme Court in the case of Jacob George Versus State of Kerala (1994) 3 SCC 430. Some paragraphs from the judgment: 1. Life is said to be the most sublime creation of God. It is this belief and conception which lies at the root of the arguments, and forceful at that, by many religious denominations that human beings cannot take away life, as they cannot give life. This idea is so intense with some religious leaders that they would even oppose any measure of birth control. 2. Mahatma Gandhi, Father of the Nation, urged long back in Harijan that God alone can take life because He alone gives it. For the Jains taking away of even animal life is a sin, as, according to them, animals are as much part of God as human beings. 3. To dispel any doubt as to whether the foetus has a life, what has been stated by Taylor in his Principle and Practice of Medical Jurisprudence may be noted where the learned author has opined at page 332 (13th Edn.) that legally both abortion and miscarriage are synonymous because the foetus being regarded as a “human life ... from the moment of fertilisation”. It may, however, be stated that sometimes the word “miscarriage” is used for “spontaneous abortion” and “abortion” for “miscarriage produced by unlawful means”.

INDIA LEGAL May 31, 2015

PROPERTY/ Saif Ali Khan

How rich is the Nawab?

The immeasurable wealth of the last ruling nawab of Bhopal is mired in dispute. Does his famous grandson stand to lose it under the 1968 Enemy Property Act? By Rakesh Dixit

Photos: Moeed Faruqui

May 31, 2015

ILM actor and heir to the state of Bhopal, Saif Ali Khan, might lose his ancestral properties worth several hundred crores if the Union home ministry decides to derecognize him as the true inheritor of the last nawab of Bhopal, the late Hamidullah Khan. On February 16, the Custodian of Enemy Property for India (CEPI), a Mumbai-based office under the Union Ministry of Home Affairs, issued a notice to Saif to prove his claim over the royal inheritance of the last nawab. It asked him to produce a copy of the merger agreement signed between the Union government and Hamidullah Khan in 1949 to buttress his claim. If the Chhote Nawab fails to do so, CEPI may initiate the process to appropriate his assets in the erstwhile Bhopal state under the 1968 Enemy Property Act, which was promulgated after the Indo-Pak war of 1965. ENEMY PROPERTY This Act empowers CEPI to appropriate properties in India owned by Pakistani nationals and authorizes the Union government to appoint a custodian for enemy property in India and one or more deputy/assistant custodians. The Act covers Pakistani nationals who were citizens of undivided India before Partition in 1947 and left the country to settle in Pakistan. The CEPI notice to Saif is based on the contention that Abida Sultan, Nawab Hamidullah Khan’s eldest daughter, was his successor. Since she migrated to Pakistan in 1950, a year after the merger agreement was signed, her father’s estate became “enemy property”. Hamidullah Khan (September 9, 1894February 4, 1960) was the last ruling Nawab of Bhopal state before it merged with Madhya Pradesh in 1956. He ruled from 1926, when his mother, Begum Kaikhusrau Jahan Begum abdicated in his favor, till 1949. The Nawab had three daughters—Abida, Sajida and Rabia. Abida migrated to Pakistan and her son, Shahryar Khan, later became Pakistan’s foreign secretary and chairman of the Pakistan Cricket Board. After Hamidullah Khan’s death on February 4, 1960, the Union government

While Sharmila Tagore is keen to settle the dispute over Flag Staff House in Ahmedabad, her son Saif and his wife Kareena have so far prevailed upon her. recognized his second daughter and Saif ’s grandmother, Sajida Sultan, as his successor. Sajida (August 4, 1915–September 5, 1995) married Saif ’s grandfather and the eighth nawab of Pataudi state in Haryana, Iftekhar Ali Khan, on April 23, 1939. However, the inheritance process was not acceptable to Sajida’s mother and two sisters —Abida and Rubia Sultan. They challenged her ownership of the nawab’s properties in Madhya Pradesh High Court in 1972. They also filed another civil suit in 1974 to challenge the coronation of Sajida’s son and former Indian cricket team captain Mansoor Ali Khan Pataudi as Bhopal nawab.

ACRES OF ACRIMONY The Flag Staff House in Ahmedabad, one of the bones of contention in the Pataudi household

HUGE ASSETS At that time, it was the fourth largest property dispute in India in terms of value of assets involved. Ironically, the cases are still unresolved even though all the original petitioners are dead. Tiger Pataudi died in June 2011. Abida’s son Shahryar Khan gave up his claim, but Rubia Sultan’s descendents are still fighting to claim their share in the royal assets. INDIA LEGAL May 31, 2015

PROPERTY/ Saif Ali Khan

BEHIND THE SCREEN Sharmila Tagore discussing the property settlement in Bhopal

HEIRS TO LEGAL MESS Soha Ali Khan (center) and Saba Ali Khan (bottom)

May 31, 2015

Meanwhile, on February 25, CEPI informed Madhya Pradesh’s Principal Secretary (revenue) Radheshyam Julania through a letter that it was vesting Hamidullah Khan’s estate with its office. It asked collectors to prepare a list of properties across the state that would qualify as enemy property. It also asked collectors to take over the control and management of such properties. Julania confirmed receiving the letter, but declined to comment on what action is being taken. Meanwhile, on April 6, Saif moved the MP High Court against CEPI’s February 16 notice. His lawyer, Rajesh Pancholi, says that the notice is based on an erroneous assumption on the part of CEPI. Another legal expert, NC Das, says CEPI has assumed that Abida, being the eldest, would be the successor to Nawab Hamidullah Khan. However, she migrated to Pakistan while the Nawab was alive. “During his (nawab’s) lifetime, Sajida had been declared heir presumptive and after his death, she was recognized as the successor by the Union government under Article 366 (22) of the constitution,” he explains. Das, incidentally, is counsel for the successors of the Nawab’s third daughter, Rabia Sultan, who died in Bhopal.

Defenders of Saif also point out that the Bhopal district court, through a ruling in 2000, had recognized Begum Sajida Sultan, and not Abida Sultan, as the successor to her father. Moreover, the CEPI had also sent a notice to Saif on December 19, 2014, identifying him as the successor to the estate of the Nawab of Bhopal since 2011. Sajida Sultan had bequeathed her inheritance in Bhopal, along with the title of nawab, to her son Mansoor Ali Khan aka Tiger Pataudi. After his death, Saif was part of a coronation ceremony at Pataudi, where he was declared the nawab. However, the Pataudi family studiously avoided any such a ceremony in Bhopal. BATTLE CONTINUES Till Sajida’s death in 1995, there was no dispute among her children. However, later, her children— Mansoor Ali Khan and his two sisters, Saleha, 71, and Sabiha, 69, got embroiled in a legal battle for the property. The sisters live in Hyderabad. In August 2003, additional district judge of Bhopal, Jagdish Baheti, passed a preliminary decree finalizing a formula to divide the nawab’s property among the three siblings. The decree, based on the Shariat, decided

Tracing the property dispute

Nawab Hamidullah Khan (1894-1960)

+ Nawab Sarwar Ali Khan of Kurwai

+ Abida (migrated to Pak)

Shahryar Khan (later Pak Foreign Secretary)

Sajida (recognized as successor)

+ Iftekhar Ali Khan, Nawab of Pataudi

Rabia

Agha Mirza

+ Sharmila Tagore

Mansoor Ali Khan Padaudi

Saif Ali Khan Soha Ali Khan

Saleha

Saba Ali Khan

that Tiger Pataudi would get a 50 percent share, while the rest would be divided between his sisters. However, the dispute is far from being resolved. Saleha Sultan’s counsel, Vineet Godha, has made it clear that the compromise formula is not acceptable to his client. Meanwhile, Sabiha’s lawyer, Jagdish Chavani, argues that owing to non-availability of valid records, division of the property among the siblings is not possible. In 2005, Sabiha filed another suit in the district court in Bhopal to claim a share in the Flag Staff House, a sprawling 10-acre property in the palace area in Ahmedabad. It once housed the secretariat of the erstwhile Nawab of Bhopal. In 2008, yet another suit was filed in a Bhopal court asking Pataudi to clarify the “position” of the Flag Staff House as to whether it was sold or not. After the demise of Tiger Pataudi in 2011, his wife, Sharmila Tagore, alias Ayesha Begum, tried to settle the dispute out of court. But her overtures did not cut ice with her sisters-in-law. Sharmila Tagore finally decided to dispose of the disputed properties and share the proceeds with her sisters-in-law’s families. She came to Bhopal in December last year

Sabiha

Nasir Mirza

Faiza Sultan

Yasser Sardar Sardar Mirza Taimur Khan Nadir Khan

On February 25, CEPI asked collectors to prepare a list of properties across Madhya Pradesh that would qualify as enemy property and asked them to take over its control and management.

with this intention and stayed for four days. But the stalemate continued. According to sources close to the royal family, Sharmila was keen to sell off the disputed Flag Staff House, but her son Saif and daughter-in-law, Kareena Kapoor Khan, prevailed over her not to dispose of such a valuable asset of great historical significance. It includes 15 residential properties and 23 cottages which were listed in the merger agreement as “private properties” of the nawab and estimated to be worth several hundred crores. Some properties are located in Raisen and Sehore districts of Madhya Pradesh, which were part of the erstwhile Bhopal state. The total assets are spread across 2,000 hectares. Land records of the Bhopal district administration reveal that the state government bought hundreds of hectares in the Sixties that were registered in the name of Begum Sajida Sultan. Several important government buildings in the state capital such as power stations of the Madhya Pradesh State Electricity Board, MP Housing Board colonies, colleges, schools, etc, were built on land bought from the royal family. Getting full ownership of this enormous wealth will be a major hurdle for Saif. IL INDIA LEGAL May 31, 2015

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PLATTER OF JOY A boy feeds his sister in a slum on the outskirts of Islamabad

PERKING UP A young fan waits for his team to come onto the pitch before their English Premier League soccer match against Tottenham Hotspur at the Stadium of Light in Sunderland, England

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TENDER DAYS A Syrian refugee girl looks after her brother at a makeshift settlement in Bar Elias in the Bekaa valley, in Lebanon

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RNI No. UPENG/2007/25763

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