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THE NATION/ letter from the editor/ narendra modi

INDERJIT BADHWAR

COMETH THE MAN? HE Economist, which has been piercingly critical of Politician Modi, Chief Minister Modi, Candidate Modi, seems to have changed its tack when it comes to appraising Prime Minister Modi. Barely a day after the Indian’s leader’s gala inauguration as the nation’s 15th prime minister, the ashes of opprobrium heaped on him for his role in the Gujarat 2002 riots seemed suddenly to have turned into snowflakes of praise. India’s unofficial First Lady, the redoubtable Soniaji, who had recently described Modi as a “maut ka saudaagar” (purveyor of death) bowed to him with a gracious smile as he entered the presidential forecourt to be sworn in. And so did The Economist. In articles entitled Modi’s Mission and India’s Strongman, liberally studded with subheads screaming “Cometh the hour, cometh the man,” “Narendra the great mender,” “From lackey to leader,” and “One rule for all,” the voice of NATO, to which presidents and prime ministers pay heed and ignore at their own political peril its purportedly superrational and finely calibrated approach to news and commentary, did a somersault that must have flummoxed even the usually placid Modi. The para that was my eyeball-grabber, which must have similarly affected Modi as well his advisors and world leaders, reads: “Now for the first time, India has a strong government, whose priority is growth. Narendra Modi, who leads the BJP, has won a tremendous victory on the strength of promising to make India’s economy work. Although we did not endorse him, because we believe he has not atoned sufficiently for the massacre of Muslims that took place in Gujarat while he was chief minister, we wish him every success: an Indian growth miracle would be a great thing, not just for India but for the world.” (italics ours). Well, it seems that after a Rip Van Winklean politico-economic slumber India is once again saying “Hullo, world!” To change metaphors, the yawning Manmohan

June 15, 2014

Singh is giving way to a roaring Modi. His campaign style and rhetoric was more than ample demonstration of this. While Modi fulminated with verve, his opponents mooed guffishly in return. Not because they were incapable morons but because they rode the cart horses of caste and despondency and negativism, while Modi galloped on a steed symbolizing speed, and the optimistic dream of a people hungry for reform. Modi campaigned on a development plank and his administration will reflect that direction. A news agency, which analyzed 68 speeches on his website, noted that he used the word “development” 534 times, “Hindu” not even once, “Gujarat” 1,300 times, and “rural” many more times than “urban,” which roughly translates into his philosophy of busting loose from stagflation, falling growth rate, and generating growth through accelerating infrastructural expansion to help rural employment by using the Gujarat Administrative Model (GAM) of “red carpet and no red tape.” The same growth paradigm will apply to Modi’s foreign policy. And that’s what the world saw during the ceremonial oath taking. Today’s world continues to look at foreign relations as a situation of no-permanentfriends-only-permanent-interests. Unfortunately for India, the last decade has shown India without any real friends and groping to find what her real interests are or where they lie. During the Nehru era, India found friends and interests because Nehru had the guts and gumption to assume charge as the natural leader of the emerging post-colonial countries. It was the sheer strength of his vision and his ability to articulate it that drew stalwarts like Tito, Nasser, Sukarno, Kenyatta, Selassie, Shah Pehlavi, and King Hussein flocking to his side under the Bandung flag or diplomatic slogans laced with Panchsheel phrases. And what did India have then? A zero economy with pie-in-the-sky public sector projects, almost total rural

illiteracy, soaring infant mortality, periodic regional famines, lack of indigenous technology, and a handme-down, creaky military system. Yet it was the strength of his ideas that Nehru used to build his leadership as a champion of non-alignment and defy all American or Soviet blandishments to become a party to any system of international military alliances that would mean slavery. Fast forward. The 1990’s dawn. The 1991 reforms released entrepreneurial energy. With a growth rate later inching close to 10 percent, nuclear energy production, a viable space program, huge savings and investments, institutional investors pouring in, the capital markets flush, IT and ITES and Indian brainpower becoming global buzzwords, India suddenly found new friends and new interests. India-China economic rivalry to emerge as the world’s fastest growing mega economies made page one headlines. Then, again, a descent into the abyss. India’s GDP per capita was similar to China’s three decades back. As The Economist points out, now it is “less than a quarter of the size”. The magazine adds: “The increase in China’s average annual GDP per head from $300 to $6,750 over that period has brought unimaginable prosperity to hundreds of millions of people.”

nd that is a lesson that has never been lost on Modi. He knows that India can do it. He has seen India do that in spurts and starts. And he knows that one of the prime reasons for India’s plunge is that its administrative leadership and mechanisms are rotten to the core. So he starts his premiership by demonstrating to the world that India Means Business. That is why he invites all SAARC heads of state to his inauguration. And they all attend because they sense something new is in the air—that Modi also means business. That a nation, once demonstrably the leader of the non-aligned world even while sunk in desperate poverty, a nation once globally front-paged for a new economic miracle, has voted overwhelmingly for a leader with the best promise of transformation. And where better to begin than with foreign policy that dovetails with his larger economic vision of trade and commerce. Modi has travelled to Singapore, China, Japan. He admires their growth models. He openly praises Chinese initiatives, and is in awe of Japan’s projection of “soft power”. The invitation to SAARC leaders for his inauguration demonstrated both his geopolitical as well as economic vision even before he was sworn in. Politically, he had Pakistan’s Prime Minister Nawaz Sharif in a bind. Had Sharif refused to attend, he would have demonstrated to the world that he is a captive of

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fundamentalist and pro-terrorist ISI-backed forces in Pakistan and cannot be taken seriously in the war against terror. Especially when Afghanistan’s Karzai was attending. His invitation to Sri Lanka’s Rajapaksa, who has been vilified in the West as a human rights violator after he defeated the terrorist LTTE, was to demonstrate to Europe and the US that his government’s foreign policy has zero tolerance for terrorist sympathizers and India will not be held captive to the political or regional group interests such as the Tamil parties who boycotted the event. Overall, putting teeth and economic bite into SAARC and BRICS has been an old Modi dream. He is aware that India’s most important neighbors—Pakistan, Bhutan, Bangladesh, Nepal, Sri Lanka, Maldives and Afghanistan are essential to India’s strategic interests. And the economic benefits of accelerating trade with them will have a multiplier effect throughout the world. Relationships with most of these countries had plummeted under the UPA rule. The SAARC invitations were the first trial balloon of his leadership and projection of his image to the world, especially China and the US, who have competing interest in this region. A couple of years ago, Sri Lanka’s Rajapaksa lamented: “All of us used to look up to India as the elder brother, the elder relative, the largest and economically strongest, who would assume leadership and attain pre-eminence in our region. But most of us are disappointed. There is no clear policy, no great vision. When there is a vacuum other countries will step in.” I met him shortly after his one-on-one meeting with Modi on May 27, a day after the inauguration and asked him if he felt the same way. He answered: “I believe India and this region may have a true leader now.” A straw in the wind, perhaps, but at least there is one.

SIGNALLING A NEW ERA? Modi meets Pak PM Nawaz Sharif on the day of his swearing in

editor@indialegalonline.com INDIA LEGAL June 15, 2014

JUNE 15, 2014

VOLUME. VII

ISSUE. 19

Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Executive Editor Alam Srinivas Senior Editor Vishwas Kumar Contributing Editors Naresh Minocha, Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Vishal Duggal

LEAD

Hawala, Halal and Hawa Mahal

Income tax raids on meat exporter Moin Qureshi revealed how he doubled as laundering conduit for senior politicians of both BJP and Congress. SHANTANU GUHA RAY and VISHWAS KUMAR expose his hawala trail, and riches

Art Director Anthony Lawrence Senior Visualizer Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator Kh Manglembi Devi Production Pawan Kumar Verma CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Director (Marketing) Raju Sarin GM (Sales & Marketing) Naveen Tandon-09717121002 DGM (Sales & Marketing) Feroz Akhtar-09650052100 Marketing Associate Ggarima Rai For advertising & subscription queries sales@indialegalonline.com

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June 15, 2014

NATIONAL SECURITY

Can NDA make life more secure?

Adding to the existing internal threats to the country is the worry over escalating militant activity in Pakistan and Afghanistan, with serious consequences for India. COL HARIHARAN urges the new government to devise novel strategies to tackle the problem THE NATION

Team Modi: lean and mean

In forming his dream cabinet, Modi selects a young and hungry team. But several questions arise, like lack of synergy in the portfolios allotted. BHAVDEEP KANG and GIRISH NIKAM ponder what factors influenced the PM

ALSO PROBE

The American visa racket

34 MC Mehta’s crusade for green cause .................38

Lured by the prospect of permanent residency in the US, several gullible foreigners have been duped by fraudulent firms and individuals. ALAM SRINIVAS describes their dubious dealings

Legal tangle

The new government will have to deal with the controversial appointments of two Supreme Court judges, writes RAKESH BHATNAGAR FOCUS

Sex addiction epidemic

A website’s psychometric test for searching life partners ...................56

Increasing instances of repeat rape offenses are coming to light but the police are helpless in tracking them to safeguard society, says SHOBHA JOHN

PROFILE

Sarosh Zaiwalla’s success story

ALAM SRINIVAS narrates the Mumbai-to-London saga of the solicitor whose clients included Sonia Gandhi and Amitabh Bachchan, and one of whose trainees was former British PM Tony Blair BOOKS

The naivete of Lokpal crusaders

CAG’s attack on income tax for paying interest refunds without Parliament approval.....62 A damning CAG report of UPA’s electrification project ..........................64 Nigeria’s helplessness in the face of Boko Haram’s violence........................70

In his book Lokpal: Facts and Arguments, PARSA VENKATESHWAR RAO JR expresses fear that the institution might become too draconian and fail to deliver

REGULARS

SUPREME COURT

Marriage prospects for diabetes patients .........54

How to secure your data through encryption .....68

Letter from the editor …............................................................4 Letters…....................................................................................8 Ringside ..........................… ....................................................10 Supreme Court........................................................................12 Consumer Corner....................................................................76 Is That Legal?..........................................................................78 Wordly-wise .............................................................................81 People .....................................................................................82 Cover Design: ANTHONY LAWRENCE INDIA LEGAL June 15, 2014

LETTERS Firm and friendly This is regarding Col Hariharan’s article on Modi’s foreign policy (Does Modi Have a World View? May 31, 2014). I might not agree with Modi on every issue, but I am happy that the BJP has got a brute majority, for one single reason. No other party in the NDA will be able to dictate terms on foreign policy, the way the coalition partners of UPA-II did in its tenure. That former prime minister Manmohan Singh couldn’t attend the SAARC summit under DMK’s pressure is shameful. One could figure out a fresh change with President Rajapaksa of Sri Lanka coming to New Delhi for the swearing-in ceremony of Modi. I am sure from this position of strength, Modi will be able to establish good ties with Pakistan as well. Rakesh Chadha, Delhi

June 15, 2014

I live in the Tughlakabad industrial area of New Delhi, where there is a huge mountain of waste. Reading your story, Survival On Waste, in the May 31, 2014 issue opened my eyes. I can’t believe how people sustain their lives by collecting bones and selling it to jewellery makers. Thank you. I have also shared this page with my friends who are interested in serious stories. Keep the flag flying. Rajesh Kumar, via email

The story on Digvijaya Singh’s adulterous liaisons (Is Digvijaya’s Goose Cooked? May 31, 2014) was a balanced piece. The writer was right in pointing out that Digvijaya’s conduct is punishable under Section 497 of the IPC, but the law cannot take suo moto cognizance of the act of adultery and there has to be an aggrieved party or complainant. As Amrita Rai’s husband has taken a very sober, dignified and mature view of her extramarital affair, Digvijaya cannot be legally implicated, though his conduct cannot be absolved on moral grounds. The write-up, though written from a legal standpoint, does not skirt the larger issues involved in the whole affair. Ravi Prakash, Bhavnagar

I just liked your pages. I have a bunch of Indian friends in my company and the latest issue of India Legal made me aware of Indian politics. Do you have website links for your stories? I would like to share it on my friends’ wall. Ron Milligan, Westport, Indiana, US

Modi and Muslims

Precious waste

Glimpses of Indian politics

I am a fourth year law student at Amity University. I just ran into India Legal Facebook page, while browsing for legal magazines. It’s a simple magazine with hard hitting stories. I liked the way it opens on the web, just like a hard copy of magazine. I have started following your stories and eagerly waiting for next issue. Sheeba Banarjee, via email

www.twitter.com/indialegalmag

Amaresh Das, Kolkata

Dispassionate analysis

Sense and simplicity

www.facebook.com/indialegalmagazine

one and all on Godhra riots spurs him to do everything to win over the community as soon as possible. Reaching out to the Muslims should be one of his major agendas. It is time for Modi to set the record straight.

The timing of your story, The Churning Within, in the May 31, 2014 issue was perfect. Modi’s ascendancy to the throne of prime minister no doubt raises concerns for the Muslim community. But I hope the backlash from

Whither ethics? The story on clinical trials in India, Suffering Experiments, May 31, 2014 issue, was an eye opener for those who put their lives at risk for the sake of money, only to discover later that they had been duped. Insensitivity to human lives is an infliction India has to unfortunately live with.We must understand that subjects of clinical trials are the ones who have helped open the gateways to rapid and incredible advancements in healthcare around the world. Hence they should be given the best possible compensation and handled with utmost care. Asit Srivastava, Lucknow

Please email your letters to: editor@indialegalonline.com Or write to us at: India Legal, ENC Network, A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) - 201309

VERDICT “I want to set the record straight.” “The record’s never straight, you idiot! Haven’t you ever read 1984? They rewrite the record anytime it doesn’t suit them. You’re spinning your wheels and exposing your bare fanny for nothing.” — David Eddings, The Losers

June 15, 2014

SUPREME COURT

No delays, please

hat he will brook no lapses in the judicial process was amply clear from the new chief justice of India’s (CJI) take on adjournment of cases in the apex court. On his very first day in office, RM Lodha lashed out against the adjournment culture prevalent in courts. While responding to an adjournment request from advocate Shivaji M Jadav, Justice Lodha pointed out that the practice was a hurdle for quick disposal of cases. He objected to the habit of lawyers asking for postponements and said such requests should be sought only in extreme cases. The CJI has initiated a process, wherein lawyers will submit their deferment requests in advance before a registrar of the Supreme Court. Once approved, they will not be listed for court proceedings. This will help dispose of other cases quickly.

Aruna

Panel to study “killer roads”

he condition of roads in India has improved significantly over the years, but paradoxically, the number of people, who die due to accidents, has increased. One life is snuffed out every four minutes. The apex court showed utmost concern while responding to a PIL filed by orthopaedician Dr S Rajasekaran. Calling Indian roads “giant killers”, a three-judge bench set up a panel to find out whether the center and state governments were implementing road safety laws and doing enough to curb the number of deaths. KS Radhakrishnan, former judge of the Supreme Court; S Sundar, former trans-

port secretary; and Dr Nishi Mittal, former head of department, traffic engineering and safety, Central Road Research Institute, New Delhi, will be members of the panel. While holding the center and states responsible for ensuring road safety, the court asked the concerned departments to submit their report on safety measures pertaining to licensing, fitness of vehicles, safety devices, emergency services and manpower deployment to the panel within three months. It also directed the panel to assess the report with a fine toothcomb and point out loopholes, if any, to the apex court.

Aruna

Stop press! Mukul Rohatgi

June 15, 2014

The Modi government has appointed Mukul Rohatgi as attorney general and Ranjit Kumar as solicitor general. Maninder Singh will take over as one of the additional solicitor generals. All three are senior advocates.

Ranjit Kumar

Freedom at last for CBI

he country’s premier probing agency, Central Bureau of Investigation (CBI), is no longer “a caged parrot with many masters”, as the apex court had once observed. A five-judge bench of the Supreme Court, headed by Chief Justice RM Lodha, ruled that CBI was no longer bound by the Single Directive Provision i.e Section 6A of the Delhi Special Police Establishment Act, while initiating probes against officers of the rank of joint secretary and above. The section had made it mandatory for CBI to seek permission from the central government. The apex court said provisions of Section 6A came in the way of tracking down corrupt senior bureaucrats, was unconstitutional, and violated Article 14 of the constitution by granting special status to senior government officers. Article 14 says that law of the land is the same for all citizens of India. The judgment freeing the CBI of its shackles was long awaited. Several instances had come to light, wherein the CBI had been debarred from taking any action against corrupt politicians. Even the agency chief had admitted that it had to share secret investigation reports with the ministries.

Amitava Sen

Kejriwal’s brush with law

rvind Kejriwal’s penchant for the audacious couldn’t cut ice with the judiciary. A trial court first packed him off to jail for two days after he refused to furnish a bail bond of `10,000 in a criminal defamation case filed by BJP leader Nitin Gadkari, and later extended his judicial custody till June 6 after Kejriwal didn’t budge from his stand in the second hearing. He only agreed to give a written undertaking, stating he would be present in court, whenever required. The court said as per legal procedures, it had no other option but to again send Kejriwal to prison if he didn’t furnish the bail bond. Metropolitan Magistrate Gomati Manocha stated she was going by precedents set by the Supreme

Court and high court, and couldn’t break away from them. If an accused is summoned by court and he or she appears, the judge needs to issue bail orders if the offence is bailable. Thereafter, Section 436 of CrPC comes into play wherein the accused can be released after he or she gives a personal bond or furnishes a bail bond—committing to subsequent appearances in court. No money is paid at the time of bond signing, but the court can recover the amount if the accused reneges. Kejriwal was later released on May 27 by Magistrate Manocha after he furnished bail bond on the advice of the Delhi High Court. His lawyers had petitioned the court for his release. The court will again hear the case on July 31.

Amitava Sen

INDIA LEGAL June 15, 2014

LEAD/ black economy/hawala

OfHawala andHalal raids on meat exporter moin qureshi and former cbi head amar pratap singh may put the spotlight on several former ministers, current ones and political middlemen By Shantanu Guha Ray

Anthony Lawrence

June 15, 2014

N a balmy February morning this year, the income tax department swooped on a palatial home of an influential meat exporter on the southern fringes of the capital. It had to conduct a raid to establish that the owner was involved in illegal transfer of cash from India to Britain via Dubai and France. The raid party worked on a tip-off from the British Revenue Intelligence Authority in London. Before the raid, IT department had done its homework and taped hours of conversation between the owner and other influential people. Hence, they were sure they would find disproportionate assets worth hundreds of crores of rupees. Eyewitnesses claim that the IT officers were initially hesitant. After all, the owner was one of Delhi’s most influential networkers. He seemed to have a hotline to the entire UPA-II cabinet, and was certainly not a small-time tax evader. After a 20 minute wait, the officers sweettalked their way into the portico. Once inside, their eyes gawked as the interiors looked like the proverbial Xanadu, a hill-top resort of princess Narda and Mandrake the magician, the 1934 comic characters created by Lee Falks, who also created Phantom. The flooring of the 25,000-square-foot home was of local marble, and the rooms were full of Empire-style tables. There were Venetianglass pendants, gold-leaf mirrors, Italian urns and benches inspired by 18th-century French designs. The officers were told that the home was designed by the Paris-based Jean-Louis Deniot, a global interiors’ star. The raid began. There was chaos, as residents and staff refused to cooperate and threatened to call “powerful contacts”. Eventually, the six-seven-hour search yielded “highly incriminating documents”. Within a few hours, the IT officials put the owner, Moin Qureshi, a meat exporter and fondly called “God” by his friends because of his proximity to the rich and famous, on the list of hawala suspects. Probably for the first time, “God”, who has family roots in Uttar Pradesh’s Rampur, famous for scissor knives and home-bred hounds, looked vulnerable.

Legal provisions to curb hawala Hawala is prohibited by the Foreign Exchange Management Act, 1999 Prevention of Money Laundering Act, 2002, makes laundering an offense punishable with imprisonment, fine and confiscation of properties involved Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974, authorizes detention of people, including foreigners; Union of India & others vs Venkateshan S & others allowed detention of hawala suspects Over-invoicing of imports and under-invoicing of exports come under the provisions of Customs Act, 1962 RBI’s “know your customer” guidelines, 2004, forces banks to set up processes to check money laundering Prevention of Terrorism Act, 2002, has provisions to curb hawala trade, which may be used to finance terrorists

The officers told Qureshi that they had recorded over 350 hours of conversation he had with politicians, trouble-shooters and corporate chieftains that pointed at a huge trail of illegal cash movement from India to Europe. Qureshi was informed that there would be more raids on his offices, and at the homes of his senior employees. The IT officers seized over `6 crore in cash and 20 lockers that were in the name of Qureshi's employees. Qureshi admitted the lockers with huge amounts of cash belonged to him. But he did not say if he owned the cash; it triggered speculation that he may have held the money that belonged to politicians and businessmen. Finance ministry officials alleged that Qureshi had evaded taxes to the tune of `157 crore.

he news made great copy for the Bharatiya Janata Party (BJP) during the election campaign, especially as Qureshi was believed to be close to UPA-II ministers. At a rally in Uttar Pradesh, Narendra Modi, now the country’s prime minister, called it “India’s biggest hawala scandal”, and added that the “tapes (of conversations) would put a number of (UPA-

The daily hawala deals are estimated at `5,000 crore and the annual figure at `18,25,000 crore, a sixth of India’s GDP. Delhi accounts for 10 percent of deals. INDIA LEGAL June 15, 2014

LEAD/ black economy/hawala

THEY ALSO HIT THE HEADLINES JAIN HAWALA DIARIES (1991) Payments were allegedly received by politicians through four brokers, the Jain brothers. The $18 million bribery scandal, which was broken by journo Vineet Narain, implicated leading politicians like LK Advani, VC Shukla, P Shiv Shankar, Sharad Yadav, Balram Jakhar and Madan Lal Khurana. But the records (including diaries maintained by the Jains) were judged as inadequate evidence.

HASAN ALI KHAN (2007) Enforcement Directorate raided properties of Hasan Ali Khan, a horse breeder in Pune, and he was arrested in March 2011. ED said Khan laundered $300 million for international arms dealer Adnan Khashoggi. Although ED said he had $8 billion in an UBS account, it could not gather enough evidence to prove it.

II) cabinet ministers and corporate captains to shame.” This was only the beginning. Among Qureshi’s friends was a senior politician in BJP, who got a key cabinet portfolio in the new government, and a middleman, who has handled cash for other BJP politicians. It was turning out to be a scam that could take both the Congress and BJP down. This was possibly the reason that BJP did not go hammer and tongs against the meat exporter during the election campaign. Qureshi was in close touch with former Congress minister Matang Singh, who recently courted trouble when he received `62 crore from West Bengal chit fund scamster Sudipto Sen, but failed to transfer the shareholding of his news channel to the latter. The channel was sold to industrialist and Congress MP Naveen Jindal. The Company Law Board ordered a probe into the sources of funds of both Matang Singh and Jindal. Speculation was rife that Qureshi, who was to finance a movie by director Muzaffar Ali and launch his daughter Pernia in Bollywood, could have benefitted when realtor Ponty Chadda was murdered by his brother. Chadda was his neighbor in capital’s Chhatarpur, which has huge farm houses.

June 15, 2014

KODA FILES (2009) ED and IT authorities raided the plush residence of former Jharkhand CM Madhu Koda, who was charged with laundering `4,000 crore through hawala and secret bullion trade. He was accused of building an empire from Africa to Mumbai, ranging from mines in Liberia to bullion companies in Mumbai.

They were friends, and both hailed from neighboring towns in Uttar Pradesh. Both shared their network among politicians, and Qureshi allegedly helped Chadda to pump huge sums in Dubai’s realty.

he IT department also raided Amar Pratap Singh, former director of the Central Bureau of Investigation (CBI) and now a member of the Union Public Service Commission. Singh, who was known as an honest officer during his CBI tenure, handled hottest potatoes, such as coal block allocation scam and 2G spectrum scandal that sent former cabinet ministers and CEOs to Tihar jail. Singh was CBI chief from 2010 to 2012; his wife Shabnam is the daughter of Congress politician Mohsina Kidwai. IT officials alleged that Qureshi worked as a middleman for Singh and accepted bribes that were paid to settle sensitive cases handled by CBI. The meat exporter transferred the money through hawala to accounts in Dubai, and eventually in London. More than two months after the raid, there were reports that the IT department had accessed Blackberry Messenger (BBM) exchanges between Qureshi and Singh. Initially, Singh termed the messages as

SANTIAGO MARTIN (2010) India's financial intelligence unit maintained Santiago Martin, a Burmese national, was responsible for running an illegal lottery business. He used it to route cash worth `1,000 crore every year. Martin, who has 60 cases pending against him, was accused of defrauding the Sikkim state of `4,500 crore. He contributed money to political parties.

DIAMOND EXPORTS (2013) Diamond firms diverted $5.4 billion, raised through bank loans, into real estate. They actually cycled the same diamonds as repeated exports and imports to boost their revenues that entitled them to get low-interest loans. But Gem & Jewellery Export Promotion Council questioned genuineness of 2010-11 $28 billion exports, and $20 billion imports of polished diamonds.

“innocuous’’ and “non-incriminatory’’. However, when the BBM messages were published, they revealed that Qureshi asked for Singh’s help in connection with a project linked to a top industrialist, to get security clearance from the Intelligence Bureau director, and to reach out to former cabinet minister Kamal Nath for a golf club membership. Singh leaned on Qureshi to buy items for his house like carpets, furniture, garden umbrellas and spectacles. Troubled and shocked, Singh rushed to the then finance minister, P Chidambaram, who curtly retorted that investigations must continue. In a brief telephonic conversation with India Legal, Singh confirmed the raid but refused to comment further. Sources said Singh’s name cropped up after they recovered his official letterheads and visiting cards as well as attested copies of his identity cards during the Qureshi raids.

ndia’s biggest hawala scandal is getting murkier and murkier. “I have no comments to offer on an ongoing investigation,” says KV Chaudhary, a top investigating officer of the Central Board of Direct Taxes. He adds that the Directorate of Revenue Intelligence (DRI) has joined the probe,

SARADHA SCANDAL (2013) The $6 billion financial scam was caused by the collapse of a ponzi scheme run by the Kolkata-based Saradha Group, a consortium of over 200 private companies across eastern India. The cash collected was sent abroad through hawala channel. $3 billion was used to acquire real estate, luxury villas, yatch and African diamond mines.

which means it would expand across the country’s borders to other cities like Dubai and London. Reports indicate that Qureshi tried to contact the current CBI director, Ranjit Sinha. A portal, www.fashionscandal.com, reported Qureshi attended film producer Bunty Chawla’s daughter’s wedding and told friends he would come out clean from the hawala mess. “I am untouchable. They can’t touch me. The income tax department has no proof against me,” the portal quoted an inebriated Qureshi telling his friends. Despite economic reforms over the past two decades, hawala has thrived. At the heart of it, it is not very different from normal banking; a settlement process to circumvent banking regulations. “It has never stopped, it will never stop,” says a former DRI head. The official, who spoke on conditions of anonymity, explains that at the bottom of the illegal business is compelling business logic. Consider the case of the minimum export price (MEP) that the government has imposed on basmati rice. It implies that no exporter can sell below the MEP. Ironically, while the MEP is $900 per ton, the global market price is $700. How can the Indian exporter ask buyers to pay a higher-thanINDIA LEGAL June 15, 2014

LEAD/ black economy/hawala

“If investigations take their logical course and put people behind bars, we could see action on hawala cases. But that does not happen.” — NEERAJ KUMAR, former Delhi police commissioner

market price? How can the former continue to compete in the international market? This is where hawala helps. The exporter’s invoice is for a higher price, which is paid by the buyer. Once the money has come into India, the difference between MEP and market price, i.e. $200 per ton, is funnelled back to the buyer through hawala. Similar is the case with metal exporters, who often indulge in over-invoicing of their transactions. The finance ministry and RBI have blamed hawala for inflated export data.

ecently, Rajvardhan Sinha, additional commissioner of the economic offences wing of the Mumbai Police, tracked movement of almost `100 crore from Mumbai to Dubai through hawala. It seemed to be related to the `5,574 crore payment crisis at the National Spot Exchange Limited (NSEL). “The huge cash withdrawals point at hawala transactions,” Sinha said in an interview in Mumbai. He said a forensic audit team had checked the accounts and other documents of Anand Rathi Commodities Ltd, an arm of the brokerage firm, Anand Rathi Financial Services Limited. A spokesman of Anand Rathi Financial Services said in an e-mail reply: “We have, and will always extend complete co-operation and assistance to the regulator in their investigation, putting all our efforts and diligence to get our clients’ money recovered.” “We cannot solve such cases overnight, it will take a long time. We need inputs, especially from Dubai banks,” Sinha explains. He adds that NSEL investors, whose cash was

June 15, 2014

trapped in the crisis, had to wait till investigations reached a logical end. “We suspected this. Most of the borrowers in the NSEL crisis were shell companies purposely used to launder money abroad or locally,” says Ketan Shah, an investor, admitting it will be a long haul before investors could get their money back. “And the delay is only because cash has gone out of India through hawala. Tracking it is a herculean task,” Shah says in an interview to India Legal in Mumbai.

awala is used to get around currency controls in various countries, including India. The rupee is not fully convertible. Thus, it’s impossible for Indian traders to hedge their currency transactions. But leading international banks in Singapore, London, Dubai and Hong Kong offer non-deliverable forward contracts in the rupee that are designed to wriggle around Reserve Bank of India’s controls. Once the contract expires, the difference between the contract exchange rate and the prevailing spot market rate is paid either to the trader or the bank. If the trader has to pay the bank, he or she has to use the hawala route and dummy companies abroad to send the money out. It is an offshore market, hence out of RBI control. “It is a system that works through brilliant minds, and trust,” quips a senior communications person with one of India’s leading infrastructure group. He remembers an incident during his days at a top advocacy firm, when he got the global CEO of South Africa’s Rand Corporation to meet Delhi’s biggest hawala trader. The visitor, an Afrikaan with Dutch origin, was in for a shock when he entered the two room apartment of the hawala trader in Delhi’s crowded Daryaganj neighborhood. In one room, there was gold and silver, stacked in boxes and gunny bags holed by rats and, in the other room were bundles of cash, stacked against the wall with markings notifying the amount in each of them. “The Afrikaan was zapped when told that the person sitting across the table kept track of both cash and bullion movement in a small diary with a half broken pencil,” says the commu-

nications professional. “He should have been with Morgan Stanley. The diary must be very vital, right?” said the visitor. The tell-tale signs of hawala are all over the place and in every sector. Consider this: In Delhi, there are over 100 big money launderers, each with a daily business of `20-30 crore. In Delhi alone, illegal transactions are to the tune of `500 crore every day. Mumbai, Kolkata, Kochi, Ahmedabad and Delhi account for the bulk of hawala transactions. The daily deals are estimated at `5,000 crore and the annual figure is pegged at `18,25,000 crore. In India, 35,000 tons of illegal gold and 200,000 tons of silver is sold every year. Nearly 40 percent of real estate deals are in black and bulk of the money is routed through hawala. Routinely, cash is laundered by manufacturers of tobacco products. Diamond and gold merchants are heavily into round tripping, whereby domestic funds come back into India as foreign investments through tax havens. This may account for 25 percent of annual FDI inflows.

jay Agnihotri, a retired finance ministry director, describes the first huge hawala case that made the headlines in the 1980s, and which proved that such cases tend to lose momentum because of political and other interferences. This happened when Amrit Lal Seth was arrested and the DRI found foreign exchange, imported liquor, gold and silver, and a diary that had names of ministers, bureaucrats, lawyers, businessmen and judges. He knew several Bollywood personalities and encouraged a top Hindi journalist to pen a classic soap opera, Hum Log, for Doordarshan. However, Seth walked free on August 1, 1986, when the then chief justice of India, Prakash Narain, concluded that there was no evidence against him. The DRI pushed the government to file a special leave petition and fight the case again, but in vain. “No one could get to the bottom of the case. In India, some hidden pressures always prevent the biggest investigations,” rues Agnihotri. “Nothing can happen, and nothing will happen in hawala cases because everyone is a

“Nothing will happen in hawala cases because everyone is a part of the gravy trail. In most cases, investigations are delayed or hushed up.” —VINEET NARAIN, journalist

part of the gravy trail. In most cases, investigations are delayed or hushed up,” explains Vineet Narain, a journalist whose investigations in the mid 1990s led to the arrest of SK Jain, a businessman. During the search of Jain’s residence, a dairy was recovered that mentioned payments of around $18million. The names of the recipients were in initials, which allegedly matched those 115 top politicians and bureaucrats. “How can you track and monitor hawala when it has become a part of the country’s system? The system encourages hawala, and stops investigations because the business must continue,” says the former DRI head. He adds that during his tenure as the DRI head, hawala was routine; cases were acted upon and eventually ignored because of “external pressures”. Agrees former Delhi police commissioner BK Gupta, who adds that the key to controlling hawala revolves around path-breaking investigation. “If investigations take their logical course and put people behind bars, we could see some action on hawala cases. But somehow that does not happen, cases drag on for years and then the courts lose interest,” says former Delhi police commissioner Neeraj Kumar. He explains it would be unfair to put the blame on a single agency but admits that the involvement of multiple agencies slows down an investigation process. In fact, over the years, the illegal hawala has morphed with white economy in such a manner that most deals are merely shades of grey. Hawala seems seamlessly attached to legal trades. IL INDIA LEGAL June 15, 2014

LEAD/ black economy/hawala /moin qureshi & family

INSIDE ALI BABA’S CAVE for a meat exporter, whose annual turnover is estimated at `165 crore, how does qureshi manage the princely lifestyle, including an open sesame-type mansion on the outskirts of delhi? By Vishwas Kumar

N November 4, 2013, Pernia Qureshi, a young and glamorous stylist, was detained by customs at the Delhi’s Indira Gandhi International Airport upon her return from Bangkok. She embarked from a Thai Airways flight (TG 315) and walked through the green channel—this implied she had nothing to declare to the customs—but then began the embarrassment as her belongings were searched. In her hand baggage, the officials found 16 designer bags, made by Italian designer Corto Moltedo, worth `35 lakh. Pernia, the owner of a fledging on-line designer outlet named Pernia’s Pop-up Shop, is a frequent flyer to fashion hot-spots such as Paris, London, and Milan. In the past, her hand baggage had never been searched. After all, she is the daughter of Moin Akhtar Qureshi, a meat exporter, who has close links with politicians, bureaucrats and businessmen. But this time, unknown to Pernia, her father was under the finance ministry’s surveillance. For months, the income tax and customs departments had been taping Qureshi’s mobile conversations. Customs had precise information about Pernia’s baggage through Qureshi’s phone-taps. It knew what to look for. According to official sources, the November 2013 search was meant to be a warning to Qureshi that he was under watch. One doesn’t know whether the meat exporter took the hint and cleaned up his act. Over four months later, on February 15, 2014, the tax authorities raided his houses and offices across the country. Based on phone conversations, which ran into hundreds of hours, the officials felt that Qureshi had links with hawala dealers in Dubai, Singapore and London. They alleged that he was involved in shuttling illegal money earned by politicians and businessmen out of the country into foreign bank accounts. He was also close to former CBI head and current member of UPSC, Amar Pratap Singh, who was subsequently raided by the income tax authorities. Singh’s proximity to the meat exporter can be gauged by several facts. For instance, the officials found that the former’s mother’s house in Delhi’s Defence Colony (D 318) was rented to the Doon School Old Boys Society (DSOBS) to run its office. DSOBS president was none other

June 15, 2014

than Qureshi, who was part of the school’s 1975 batch and one of the most active members among alumni, who have a strong network among politicians, corporate world and bureaucrats. POLITICAL ARTITHMETIC? Most political observers were surprised, and even shocked, by the raids, conducted just a few months before the national elections, as Qureshi has links with Congress ministers. Why would the former finance minister, P Chidambaram, wish to embarrass his own government? Wouldn’t the raids be used by the BJP to further attack UPA-II, which was saddled with dozens of scams like 2G spectrum and coal lock allocations? Was it part of a political game plan? There are several conspiracy theories floating around to explain the raids. The first is that Chidambaram was angry with Singh, and wanted to expose his relationship with a hawala operator, Qureshi. It was during Singh’s tenure as CBI director that the former FM’s name cropped up in the 2G scam. Chidambaram felt that unlike in the case of

PM Manmohan Singh, the CBI did not take enough initiatives to scotch the rumors and initiate aggressive legal action to save him. A few political pundits feel that Chidambaram’s decision not to contest elections was a part of a larger plan. The former FM, like many others, expected a fragmented electoral result, which could pave the way for the formation of a Congress-led coalition or Fourth Front regime. In both cases, he expected to be among the frontrunners to become the PM. An indirect attack on other senior Congress ministers, via the raids on Qureshi, would enhance his chances. However, the truth was possibly that British intelligence agencies had tracked several murky dealings, and found that illegal funds were being transferred from India to London, via Dubai. They alerted their

LIVING LIFE, KING SIZE (L-R) Qureshi’s farm house in Chhatarpur, designed like a 19th century mansion; Pernia, his daughter and designer, who owns Pernia Pop-up Shop; and wife Nasreen, who has expensive tastes

Daughter Pernia shops in Paris and London; her wedding gown cost `80 lakh. Wife Nasreen is a collector of Armani and Dior, and hosts the likes of Kate Perry. INDIA LEGAL June 15, 2014

LEAD/ black economy/hawala /moin qureshi & family

intelligence counterparts in India, who were pressured to act on these tip offs. This was possibly why the income tax tapped Qureshi’s phones, which led to the raids.

ISLAND OF OPULENCE The lavish interiors of Qureshi’s dwelling, inspired by Picasso’s 19th Century villa in Cannes and designed by French star Jean-Louis Deniot

June 15, 2014

LIVING BEYOND HIS MEANS The family’s meat business was started in the 1950s by Qureshi’s father, Abdul Majeed, in Rampur (western Uttar Pradesh). They catered to regional markets, including Delhi. The revenues shot up when the Qureshis obtained a license to export meat products. Today, they claim to be among the country’s largest meat exporters. For example, AMQ Agro India, the flagship firm of the group, says it is the largest exporter of buffalo meat, and its products are known globally. UP is the largest exporter of buffalo meat, followed by Punjab and Maharashtra. Besides, UP has the highest number of abattoirs-cum-meat processing export units, including 317 registered slaughter houses, and 24 export-oriented units for buffalo meat. Almost 70 percent of the carabeef (buffalo) exports originates from UP. According to the Agricultural and Processed Food Products Export Development Authority

(APEDA), India’s exports of animal products was `20,778 crore in 2012-13, including buffalo meat (`17,413 crore), sheep/goat meat (`426 crore), and poultry products (`495 crore). Buffalo meat dominated exports with a contribution of over 85 percent. APEDA’s statistics reveal that the major meat exporters in UP include Hind Agro Industries, Al-Noor Exports, Al Nafees Frozen Food Exports, Frigerico Conserva Allana, Rustam Foods and Rayban Foods. Income Tax authorities found that the latest annual turnover of all the firms owned by Qureshi was `165 crore. In fact, the Federation of Indian Exports Organization, which maintains country-wise data on exporters, categorized Qureshi’s export firm as a “small scale” manufacturer. If the above is true, how did the Qureshis maintain their lavish lifestyle? DESIGNER EXISTENCE To give an example, the Chhattarpur farmhouse, with its French-styled chateau and sprawling over five acres, cost over `200 crore, including the plot and flamboyant and fancy interiors.

The family owns three other houses in Delhi, all of them in posh colonies. The interiors of the farm house and other houses were designed by a French designer, JeanLouis Deniot, a global interiors’ star. A UK-based leading home magazine, Ellee Decor, wrote extensively about the palatial farm house in an article, On a grand scale: A home in India, which was written by the designer, Deniot. Published in 2013, it talked about the house and how he was hired by the Qureshis in 2002 to build the dream home. Initially, Qureshi was reluctant to hire the French designer but his wife, Nasreen, who met Deniot at a party in Paris, insisted on it. Nasreen is a woman of style and known for a large collection of products from designers such as Giorgio Armani and Dior. The final design of the farm house was inspired by a photograph of Picasso’s famous 19th-century Villa California in Cannes. “I wanted a house that looked 100 years old,” Nasreen was quoted in the piece, and she added that she wanted to step out of the front door and see the pool and gardens. The sofa in the drawing room was inspired by JeanCharles Moreux, a French architect, the cock-

The farm house’s interiors boast of a double-height central staircase foyer, Art Deco bedroom suite, black mother-of-pearl cabinets and black and white marble baths. tail table was from the 1940s, and the cabinets were clad in black mother-of-pearl. The urns (vase) were carved in Jaipur from a block of alabaster, and styled along 17th-century Italian vases, and railing was inspired by an 18th-century French design. Qureshi’s bedroom suite on the second floor was Art Deco in spirit. The design of the walls was triggered by a fragment of a Süe et Mare cornice that the decorator found in a Paris flea market. The black-and-white marble bathroom was along the lines of the legendary palace that the Maharajah of Indore constructed in the 1930s. The farm house’s highlights included the double-height central staircase foyer, with its 38-foot-high ceiling, sweeping balustrade, and geometrically patterned floors and walls, which were created with locally-available

INDIA LEGAL June 15, 2014

LEAD/ black economy/hawala /moin qureshi & family

THE CREATIVE SIDE (Top) Still from Aisha, produced by Sonam Kapoor, which had Pernia as its stylist; (above) Pernia with her book Be Stylish

marble. The headboard, mahogany canopy, and hanging fixture were custom designed, the mirror was in the style of Line Vautrin (French designer), and the daybed and rug were inspired by André Arbus (French furniture designer). The library’s sofa was covered in a Pierre Frey cotton velvet trimmed with Mokuba ribbons, and the chandelier had 19th century impression. Nasreen told Deniot that “in the summers, I think I’m the only person who stays in Delhi. I love my trees, I love my house. I don’t go out unless I have to. Darling, tell me: Who would?” So, she prefers to entertain her guests at home; these include shoe maestro Christian Louboutin, singer Katy Perry, and artist Subodh Gupta. One stunned visitor, who attended the house-warming party in 2009, recalled that it had a provision for a 24-hour beauty salon! STYLE IS IN GENES Nasreen’s taste in fashion and culture was picked up by daughter Pernia. After graduating from the George Washington University, Washington, and majoring in criminal justice (with dance and English literature as minor subjects) in 2006-2007, she worked with Cosmopolitan, a global fashion magazine, in New York. In 2008, she came back to India and worked with top designers like Tarun Tahiliani and JJ Valaya. Later, she

June 15, 2014

styled the 2010 Bollywood movie Aisha, which was produced by her friend and actor, Sonam Kapoor, the daughter of film-star Anil Kapoor. In 2012, she set up her own online retail store that houses top designer labels. Pernia has expensive tastes. In 2011, when she got married to a London-based entrepreneur Arjun Prasad, her wedding dress from designer John Galliano cost over `80 lakh. Pakistani’s popular sufi singer, Rahat Fateh Ali Khan, who is related to the famous maestro late Nusrat Fateh Ali Khan, sang at her wedding reception. Unfortunately, when he flew back, the Directorate of Revenue Intelligence detained him at the airport when it found `56 lakh in his baggage. Pernia and Ajay lived temporarily at Delhi’s costliest penthouse in a five-star hotel, Aman Hotel. At this “residence”, Deniot was hired to do the interiors. The designer managed a beautiful walk-in wardrobe for Pernia. “I know of Pernia’s shopping addiction, as I have already designed three other dressing rooms for her at her parents’ homes,” said Deniot in an interview, adding that “at the manor (Chhattarpur house), she has two walk-in wardrobes, one for the summer and one for the winter.” The daughter has told magazines that she had unique ways to unwind at weekends. “What I like to do on a weekend is to fly to Jaipur, which takes 40 minutes, and check into Rambagh Palace and not leave for two days. It’s the former home of the Jaipur royal family and is now operated by the Taj hotel chain. It’s lovely there; they have a great pool, a fantastic spa and excellent food. I always stay in the same suite, Hawa Mahal,” she told an interviewer. That’s `30,000 a night! In the near future, Pernia, and her parents, may have to change their lifestyle. The only advantage they have is that while income tax and customs may go after them, the new BJP-led NDA government can derail the investigations. After all, the Qureshis are close to both Congress and BJP politicians and this is the reason why the BJP rarely raised the issue during its election campaign. If all goes well, Pernia may still be able to catch the flight to Jaipur and spend her weekends at Hawa Mahal suite. IL

NATIONAL SECURITY/ terrorism

HOSTAGE TO VIOLENCE Indian consulate in Herat, western Afghanistan, attacked by suicide bombers in the early hours of May 23

Photos: UNI

he recent military funeral of Major Mukund Varadarajan, who died fighting terrorists in Jammu and Kashmir (J&K), saw public participation on an unprecedented scale in Chennai. He died along with sepoy Vikram Singh. Though national television largely ignored it and devoted its energies to the trivial verbal duel between Priyanka Gandhi and Narendra Modi, the death of two soldiers is a stark reminder that the war on terror, particularly in J&K, is far from over. According to data from a portal on South Asia Terrorism, in J&K alone, 43,554 lives were lost between 1988 (when terrorist activity was scaled up) and April 20, 2014. This statistics includes 14,676 civilians, 6,104 security forces and the rest, terrorists. This works out to an average of about 145 lives lost every monthâ&#x20AC;&#x201D;just in this one state. Then, there is Left-wing extremism, in the

TERROR TRAIL the new government has to devise novel strategies to tackle increased militancy in Pakistan and Afghanistan By Col R Hariharan INDIA LEGAL June 15, 2014

NATIONAL SECURITY/ terrorism

ment and depletes scarce resources. Which is why we should not let our guard down. In 2013, Pakistan armyâ&#x20AC;&#x2122;s ceasefire violations in J&K more than doubled to 196 instances, as against 93 in 2012. These were mostly covering fire provided by the Pakistan army across the Line of Control (LoC) to help terrorists infiltrate from their bases in Pakistan-occupied Kashmir. So, it is not surprising that total fatalities went up from 117 in 2012 to 181 in 2013. Already, in the first four months of this year, we have lost 14 lives. But matters will get worse. There is escalation of Taliban terrorist attacks in Pakistan, and with the US troop pull-out from Afghanistan later this year, the region might become more volatile, leading to an increase in terrorist activity in J&K. Pakistan-based terrorist groups have linkages with domestic terrorist groups like the Indian Mujahideen (IM). What makes the situation dangerous is that our counter-terrorism strategy is still not fully effective, though India has made some progress. India needs to treat terrorism for what it isâ&#x20AC;&#x201D;a potent threat to democracy, national security, stability and progress. This should be on top of the agenda for the incoming government.

HEROIC SACRIFICE (top) Army officers paying last respect to Major Mukund Varadarajan, killed in a terrorist encounter in J&K; parents and wife of Major Varadarajan

June 15, 2014

form of Maoism, another major threat to national security. In the last eight years, nearly 6,403 lives were lost. That amounts to an average of 64 deaths every month. Even though the figure includes terrorists, it is nonetheless, a loss of young lives. The nation cannot afford to keep losing over 200 lives every month due to terrorism and extremism. India being a democracy, the war against unconventional threat is prolonged and time-consuming. And in a developing nation like ours, terrorism cramps governance, stifles develop-

SLOW PACE So, what needs to be done? The efforts of former home minister P Chidambaram after the 26/11 terrorist attacks in Mumbai have made halting progress. However, the integrated structure involving central intelligence and police organizations, and their counterparts in states is not yet fully in place. It has to progress at a faster pace. Meanwhile, the modernization of Central Armed Police Forces (CAPF) is under way. In the interim budget for 2014-15, allocation for this was increased by 16 percent to `59,387 crore. This will enable CAPF to procure night vision devices, surveillance and reconnaissance equipment and antiIED devices. The allotment for strengthening state police forces is double the amount allotted to CAPF. However, police commission reforms are yet to be implemented by many states.

Same is the story in coastal security. States have huge deficiencies in human resources; both qualitatively and quantitatively, they have to be beefed up. Structurally also, some progress has been achieved. These include the launch of Crime and Criminal Tracking Network System that connects nearly 2,000 stations in 25 states. The much-delayed National Intelligence Grid has at last been launched. This is a crucial initiative and its successful implementation can improve our real time response to terror attacks. LIMITED SUCCESS Thanks to these efforts, the authorities have succeeded in preventing a repetition of 26/11. In 2013, there were four terrorist bomb blasts in Hyderabad, Bangalore, Patna and Bodh Gaya. IM terrorists responsible for these blasts, except Patna, have been rounded up. In fact, the arrest of Tahseen Akhtar, leader of IM involved in organizing a number of terror strikes since 2010, was a significant achievement. The subsequent arrest of Bhatkal, said to be his successor, has literally decapitated the IM and exposed the entire network. Similar success has been achieved in apprehending key Maoists leaders. Militancy in the North-east too has been weakened, thanks to Bangladeshâ&#x20AC;&#x2122;s leadership cooperating with India in denying sanctuaries to them in its territory. Myanmar is regularly interacting with India to curb Indian militants. However, the prevailing political climate of suspicion among parties has resulted in friction between the center and states, affecting counter-terrorism methods. Some of the weaknesses are affecting the spirit of nationalism in border areas affected by militancy. Controversy over the use of Armed Forces Special Powers Act in J&K is a typical example of this and needs major improvement. CROSS-BORDER TERRORISM The main issues facing the new NDA government will be in handling terrorist threat, particularly from Pakistan-based militants. We can expect the Taliban to intensify their

An integrated structure involving intelligence agencies and police organizations is still not in place. States have huge qualitative deficiencies in human resources. attacks to destabilize not only the elected government of Afghanistan but India as well. India has made huge investments in Afghanistan and has agreed to provide security assistance to it. So, the worsening internal security situation in Afghanistan will impact our own strategic security priorities. The Nawaz Sharif government in Pakistan has failed to bring the Taliban to the negotiating table. On the contrary, terrorist attacks have continued, even as talks proceed in fits and starts. The Pakistan army is suspicious of the governmentâ&#x20AC;&#x2122;s efforts, as Islamabad is locked in its own war against the terrorists. Despite these internal developments, Pakistan has not made any significant effort to curb Hizbul Mujahideen and Lashkar-eToiba terrorists operating against India from bases across the LoC. So, we can expect terrorism to further destabilize J&K. The center cannot afford to drop its guard against terrorism. It will have to ensure that terror strikes are neutralized in the formative stages itself. The center needs to take special measures to improve its relationship with states. This should go in tandem with efforts at the international level to curb jihadi terror. The war against terror is an unending one. Lastly, special attention needs to be paid to the armed forces. There have been serious deficiencies in all three services, affecting their military capabilities. This is largely due to poor leadership at both the political and ministerial levels. The new government headed by Narendra Modi has to urgently address this issue, if it wants the forces to be the bulwark of its national security. IL

The author is associated with the Chennai Centre for China Studies and the South Asia Analysis Group INDIA LEGAL June 15, 2014

THE NATION/ nda government/ cabinet formation

The King’s Knights modi’s core team is a mix of his wishlist, rss influence, arun jaitley’s growing clout and the secret hand of lk advani By Bhavdeep Kang and Girish Nikam Photos: UNI

June 15, 2014

OLITICAL pundits dubbed it as Narendra Damordas Modi’s cabinet. Young, as most ministers, except three, were born after Independence; lean, given the truncated number—45 against UPA-II’s 77; and mean, because of multiple portfolios given to most of them. Before his swearing in on May 26, Modi told them that they should be prepared to offer “ahuti (sacrifice)” in the cause of “rashtra nirmaan (nation building)”. The more perspicacious read this elevated sentiment as a subtle warning that they better deliver, or else. What went unnoticed was that the cabinet’s composition was influenced by BJP’s old guard, LK Advani, party’s new star, Arun Jaitley, and its ideological wing, Rashtriya Swayamsevak Sangh (RSS). Each forced Modi to select specific candidates or give them the choicest portfolios. RSS’ dream boy, Rajnath Singh, was the Number 2 (home), Advani loyalist, Sushma Swaraj was Number 3 (external affairs), and Arun Jaitley emerged as a powerful minister with three portfolios, finance, defense and corporate affairs. For Advani, it was a mixed bag. His ambition to become the prime minister remained a dream, but almost all the top occupiers were his “boys and girls”. It was Advani, who had groomed them for a decade by giving them important posts within the party and in the earlier BJP-led NDA regimes. These included Jaitley, Singh, Swaraj, Venkaiah Naidu and Ananth Kumar, among others. He was their godfather and patron saint for years. No wonder, his eyes were moist as he watched the swearing-in ceremony. Sushma Swaraj, who was allegedly a key driver within the “Club of 160”—a pre-election group of BJP leaders opposed to Modi and which desired that the party’s tally would fall short of 160, and thereby ensure that Modi would not become prime minister— was initially offered the post of speaker, which she declined. Swaraj insisted on being a member of the coveted Cabinet Committee on Security (CCS). Modi decided to bury past differences and gave her external affairs. The initial idea to

give her defense was shot down. But there is no denying that the ministers unmistakably carried Jaitley’s stamp. It comprised several of his loyalists—Smriti Zubin Irani (human resource development), Piyush Goyal (power, coal, and new and renewable energy with independent charge), Nirmala Sitharaman (commerce and industry with independent charge, and finance and corporate affairs as junior minister), Dharmendra Pradhan (petroleum and natural gas with independent charge), and Ananth Kumar (chemicals and fertilizers).

COMMENCING A NEW INNINGS Narendra Modi signing the register after taking oath as prime minister at Rashtrapati Bhawan on May 26

JAITLEY’S CLOUT It was a great bounce back for Jaitley—from zero on May 16 to hero 10 days later. On May 16, when election results were announced, it included his crushing defeat in Amritsar at the hands of that doughty old soldier, Captain Amarinder Singh. He went into depression and prepared a statement that he would not join the cabinet. As an opposition politician, he had taunted UPA-II for

Modi’s masterstroke was in the selection of those who got independent charges of crucial ministries. They would constantly look towards the PM for subtle directions. INDIA LEGAL June 15, 2014

THE NATION/ nda government /cabinet formation

Modi helped Jaitley re-emerge as a powerful politician. He was clear about Jaitley as the finance minister and had great regard for his abilities. DIPLOMATIC MASTERSTROKE SAARC leaders at the swearing-in ceremony

Rajnath Singh, Home Affairs Elected from Lucknow. He was surface transport minister in the Vajpayee government.

Sushma Swaraj, External Affairs, Overseas Indian Affairs She has earlier been I&B and health minister under Vajpayee.

Arun Jaitley, Finance and Defense A Rajya Sabha member, he handled law, company affairs, disinvestment and commerce.

June 15, 2014

accommodating electoral losers as ministers. The BJP and RSS leaders were immediately dispatched to his residence to dissuade him from issuing it. Willy-nilly, the prime minister helped Jaitley re-emerge as a powerful politician. Modi was clear about his choice of the finance minister. He wanted Jaitley. Although the long-standing bond between the two—going back to Modi’s tenure as party’s general secretary in 1998—suffered a setback during Nitin Gadkari’s term as BJP president, Modi continued to regard Jaitley’s abilities. He wanted a star performer to help kickstart economic growth. Earlier, there were rumors that Arun Shourie was a contender for the finance minister’s post, but it was perhaps put out by anti-Jaitley forces within the BJP. The latter believed Shourie’s proximity to RSS-favorite, chartered accountant S Gurumurthy, would make the former more acceptable to Modi than corporate-friendly Jaitley. IDEOLOGICAL IMPACT RSS’ hand in cabinet formation can be seen largely from one appointment—Rajnath Singh. In his case, an idea was floated that home should be truncated, and internal security be brought under the PMO. This would have eroded his importance or compelled him to opt for defense, which was offered to him. (He was the only one who was given a

choice.) But the RSS insisted on an intact home ministry, and pointed to a host of problems that could arise if internal security was directly under PMO. One should not forget that Jaitley and RSS’ Number 3, Suresh Soni, are close to each other. One should remember that Modi’s chaiwallah-to-PM narrative misses the crucial element that he owes his education, career and life direction to the Sangh. Despite the fact that Modi has almost wiped out RSS in Gujarat, the ideological wing regards him as one of its own. RSS pracharaks at its Jhandewalan headquarters in Delhi wept when he was elected prime minister. Therefore, Soni may play an important role in governance in the near future. However, RSS’ influence on the party is another story. Thanks to government formation, BJP was virtually emptied out, necessitating new faces. The names of Amit Shah and Jagat Prakash Nadda, both Modi loyalists, as potential party chief are doing the rounds, but Rajnath is likely to hold charge for the moment. To extend its clout within the party, the RSS may depute five or six of its prized pracharaks there. EFFICIENCY OR HASTE Despite the compulsions, Modi has still managed to get the kind of cabinet he would have wished for. In many cases, he put efficiency and administrative experience of ministers ahead of their clean image. Nitin Jairam Gadkari was embroiled in benami shareholders’ controversy, Ananth Kumar is still fighting the HUDCO corruption case, and Venkaiah Naidu was accused of corruption by party politicians. But Gadkari getting a critical infrastruc-

ture portfolio ((roads, highways and shipping) was a tribute to his competence and a reward for his efforts to get Modi declared as BJP’s prime ministerial candidate in 2013. Others selected for their experience included Naidu, Uma Bharti, Harsh Vardhan and Menaka Gandhi. Bharti is expected to spearhead the revival of river Ganga, a promise Modi made to Varanasi residents. Modi succeeded in his slightly-innovative idea to club ministries and create super-ministers. However, his decision to give multiple responsibilities to some ministers was welcomed with caution. “It is one thing to talk about downsizing the government, but efficiency should not suffer because of it,” warns AN Tiwari, former secretary, Department of Personnel and Training, and also a former chief information commissioner. For example, the biggest challenge before this government would be the economic issues. Most eyes are glued on Modi to tame inflation, spur growth, and woo investments. Therefore, one would have expected him to select the best candidate to handle only finance. It would be difficult, if not impossible, for Jaitley to handle defense, another mega ministry, and corporate affairs, along with finance. Similarly, environment is key component and detractor to attract investments. Again, a senior minister should have handled this portfolio single-handedly, instead of being burdened with others. However, Prakash Javadekar has been given I&B and parliamentary affairs, apart from environment. The same is the case with Ravi Shankar Prasad, who got communications and information technology, and law and justice. In many cases, the multiple portfolios made no sense. How are mines, steel and labor, allotted to Narendra Singh Tomar, related, except that steel firms and mining companies hire workers? What are the synergies between textiles, water resources, and parliamentary affairs, given to Santosh Kumar Gangwal? Or for that matter between Sarbanand Sonowal’s skills development, entrepreneurship, and youth and sports affairs? To be fair to Modi, some of the portfolio distribution was sound. He clubbed culture and tourism, which had almost-per-

His real oath: Reduce judicial delays

S the chief spokesperson of the BJP, Ravi Shankar Prasad, 60, is articulate, and forceful speaker, with an excellent command over English and Hindi. His legal background is an added advantage, as he took on Congress’ battery of lawyer-turned-politicians, such as Kapil Sibal, Abhishek Manu Singhvi, Manish Tewari and others. So, it did not come as surprise that Modi picked him to head the law ministry, besides the telecom portfolio. Incidentally, in UPA-II too, the telecom portfolio was also headed by the law minister Kapil Sibal. The challenges before RSP, as he is popularly known, are many. There is a huge backlog of cases, running into staggering 3.3 crore in lower and higher courts, and this calls for radical measures. In 2012, Prasad had raised an important question in the parliament, regarding Supreme Court’s “deep concern” over the delay in disposal of cases. Hopefully he will now urgently try to implement necessary measures to resolve the complex issue, now that he has the charge of the portfolio. Issues of corruption also need to be tackled through judicial reforms. The newly appointed Chief Justice of India RM Lodha, had also raised the issue of lack of budgetary support from the center which in recent times amounted to between 0.4 and 0.11 percent. The budget is needed to create judicial infrastructure like new court rooms, computerization, and for hiring more judicial staff to tackle the increasing number of cases. If one goes by his track record during the previous stint as a junior minister at the law ministry in prime minister Atal Behari Vajpayee’s cabinet in 2002, RSP should be eager to take up judicial reforms. He was instrumental in speeding up the process for setting up fast-track courts to take up special crime cases. In fact, his friends and colleagues at the bar in Patna High Court remember him for his landmark public interest litigation (PIL) that had set free around 30,000 undertrial prisoners languishing in jails for several years—some for almost 20 years—for their inability to arrange bail amount and surety. A large number of them were accused of petty crimes. Prasad was the leading lawyer who argued the PIL filed in the fodder scam that ultimately led to the conviction of former Bihar Chief Minister Laloo Prasad Yadav. He was also a main lawyer in the Ayodhya-Babri Masjid title dispute case. Prasad was the deputy leader of the BJP in the Rajya Sabha.

INDIA LEGAL June 15, 2014

THE NATION/ nda government/cabinet formation

Nitin Gadkari, Surface Transport and Shipping Winner of Lok Sabha seat from Nagpur, he was PWD minister of Maharashtra in 1995-96.

M Venkaiah Naidu, Urban Development A Rajya Sabha member, he handled rural development in the previous NDA regime.

Harsh Vardhan, Health and Family Welfare Elected from Chandni Chowk in Delhi, he was education minister of Delhi between 1993 and 1998.

Smriti Irani, Human Resource Development Irani lost against Rahul Gandhi in Amethi. She is a former beauty queen and popular TV actress.

Najma Heptullah, Minority Affairs A long-serving Rajya Sabha member, Najma is the only Muslim face in the cabinet.

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fect synergies, and gave them to Shripad Yesso Naik. Planning was joined with statistics and program implementation, which had several commonalities, and allotted to Inderjit Singh Rao. Apart from external affairs, Swaraj got overseas Indian affairs, as the two go hand-in-hand. Nadu got urban development, housing and urban poverty alleviation, and parliamentary affairs; at least the first two required coordination and common vision. Modi’s masterstroke was in the selection of those who got independent charges of crucial ministries. Experts feel that as junior ministers, they would constantly look towards the PM or PMO for subtle and nuanced directions. This would enable Modi to directly and indirectly interfere in the decision-making process of these ministries. Most of such “independent” portfolios include areas, which are important in Modi’s scheme of things. The prime minister is interested in foreign and domestic investments; his claim to fame was the manner in which he cajoled investors to Gujarat. As the nation’s head, he entrusted Sitharaman with independent charge of commerce and industry. To moni-

tor capital expenditure by public sector, he got Rao to independently take care of planning and program implementation. He has constantly talked about skill development and entrepreneurship; so, Sonowal will report directly to the PM or PMO on these critical issues. Over the past few years, the oil and gas sector became a controversial one, especially in the light of alleged favors given by UPA-II to Mukesh Ambani-owned Reliance Industries. It is bound to be a contentious issue in the near future. So, petroleum and natural gas has gone with an independent charge to Pradhan. At Modi’s swearing-in ceremony, Ambani came with his entire family, along with several other industrialists. COALITION BREAKDOWN? Unlike in the past several regimes, the lead party’s (BJP) allies had little say in cabinet formation. Karnataka’s former CM BS Yeddyurappa, who arrived in Delhi to request a berth for himself or his protégé, Shobha Karandlaje, was sent off with a flea in his ear. So were Punjab CM Parkash Singh Badal and his son Sukhbir Singh Badal, when they asked for, in addition to a cabinet berth, a

Maneka Gandhi, Women and Child Development Savoring her 7th Lok Sabha victory, she held portfolios both in VP Singh and NDA regimes.

Ananth Kumar, Chemical & Fertilizer

TIME FOR ACTION Prime Minister Narendra Modi chairing the first meeting of the Union Cabinet

minister of state portfolio for Naresh Gujral. Still, Modi gave coalition partners some respect by giving Shiv Sena’s Anant Geete heavy industries and public enterprises, Telugu Desam’s Ashok Gajapati Raju, civil aviation, and Ram Vilas Paswan, consumer affairs, and food and public distribution, which were not insignificant portfolios. However, he ensured that such ministers could not be part of top decision-making bodies like the CCS. The biggest failure on part of Modi was his inability to inculcate technocrats and economists in his A-Team. But experts contend that this may happen over the next few months. “He will watch the performance of each minister, and whoever does not reach up to expectations will be thrown out. This will provide the PM with opportunities to get new faces from the industry and academia,” says one of them. How will this government perform in comparison to the previous ones? Some experts say that judging from the influencepeddlers, power-brokers and middlemen who thronged Modi's swearing in, the old power structure comprising politicians, corporates, bureaucrats, lawyers and media will

continue to hold sway. If so, the PM may have a hard time delivering on the expectations he had raised during his high-voltage campaign. One of the challenges, which Modi will face, would be on the Rajya Sabha front. His party or coalition does not have a majority in the Upper House, unlike the almost twothirds majority in Lok Sabha. This could scuttle the passage of key legislations. Therefore, one would need to watch out for the efficacy of his choice of Naidu as the parliamentary affairs minister and man friday to handle the opposition parties. If Naidu fails to deliver the goods, Modi can safely say goodbye to his dream to run the country for at least 10 years.

Winner from Bangalore south seat, he has strengthened the party in Karnataka.

Gopinath Munde, Rural Development Elected from Beed in Maharashtra, he is former state deputy CM and home minister.

Ram Vilas Paswan, Food and Civil Supplies Winner from Hajipur in Bihar, the LJP chief has held key portfolios like railways and fertilizers.

Postscript: Rumor has it that Modi has plans for a grand gesture in the near future—the announcement of Mahatma Gandhi’s 150th anniversary celebrations. This would fit in with Modi’s political correctness, as he started the most significant day of his 63 years— Uma Bharati, Water Resources, River swearing-in as PM—by paying obeisance at Development & Ganga Rejuvenation Rajghat to the father of the nation. But the MP from Jhansi, she was earlier period of symbolism and images has gone. Madhya Pradesh chief minister. IL Now is the time to govern. INDIA LEGAL June 15, 2014

PROBE / us immigration/green card

Cash-for-visa Con WARNING BELLS US Senator Charles E Grassley had investigated into fraud in EB-5 visa program by regional centers in 2012 and 2013

Getty Images

us promoters have duped foreigners by promising them green cards under the regional center program. rich indians need to be beware before they invest in such projects 34

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or the rich across the globe, it is possibly the easiest way to get a permanent residency in the United States (US). One can invest $500,000 or $1 million in specific business projects under the US Immigrant Investor Program, also known as â&#x20AC;&#x153;EB-5â&#x20AC;? and get a green card after two years. In the recent past, the scheme proved to be a hit among the Chinese, Mexicans and Nigerians. But now, American businessmen, real estate developers, lawyers and immigration agents hope to woo Indians.

Aginsky Consulting, a boutique investment advisory, hopes to raise $50 million from Indian high net worth individuals. The firm has entered into a marketing deal with Liberty Regional Center (LRC), which plans to construct Hyatt House and Hyatt Place Hotel in San Diego (California) and Capital District Marriott Hotel in Omaha (Nebraska). Aginsky says the center has helped more than 40 global investors to obtain permanent residency in the US. But before you reach out for the phone to wire transfer the amount, wait a while. Although LRC may be a genuine investment, scores of fly-by-night operators and conmen have fooled hundreds of foreigners in the past. In most cases, they transferred the money into their personal accounts or spent them on their own projects. In others, the conditional visas given to the foreign investors and their families were revoked and they were asked to leave America. In October 2013, US stock market regulator Securities and Exchange Commission (SEC), issued a joint alert with US Citizenship and Immigration Services (USCIS). It warned “individual investors about fraudulent investment schemes that exploit” the immigration program. It suggested a set of steps that an investor needs to follow in order to ensure the safety of his money. It concluded that “if your investment through EB-5 turns out to be fraudulent… you may lose both your money and your path to lawful permanent residency….” Six months ago, the US Department of Homeland Security (DHS) pointed out other problems with EB-5. It found loopholes in the schemes related to the program, and weaknesses in the working of USCIS, which manages EB-5. The department’s report stated that “USCIS is limited in its ability to prevent fraud or national security threats that could harm the US.” Senator Charles E Grassley had initiated EB-5 related investigations against USCIS and senior officials in 2012 and 2013. The US Congress created the immigration investor program, also known as Employment-based Fifth (EB-5) Preference Program, in 1990. Three years later, a new concept—regional centers—was added.

These centers allowed American promoters to pool money from foreigners, who wished to get a Green Card, and invest in new projects in defined geographies and industries. It is the regional centers that have largely been prone to scandals and manipulations. As per the policy, a foreigner can put in $1 million in a center, or $500,000 in one located in specified high-unemployment areas, to apply for a conditional permanent residency. Even spouses and minor unmarried children are allowed to apply. The USCIS grants the residency after checks related to security and source of money. However, after two years the investor has to prove that the center created a minimum of 10 new jobs for US citizens. If there are 10 foreigners, who pooled their money in a center, the latter has to create at least 100 jobs. Only when this is conclusively proved does the USCIS remove the conditions imposed on permanent residency. If the investor is unable to prove it, the investor and his or her family are deported. FRAUDULENT CENTERS Anshoo Sethi raised over $150 million from 250 investors, mostly Chinese, for Chicago Convention Center and International Regional Center Trust. He promised to build the world’s first zero carbon emission hotel and conference center. He submitted false documents to the USCIS; these claimed that Hyatt, Intercontinental Hotel and Starwood Hotels would participate in the project. He funneled $2.5 million to his personal bank accounts in Hong Kong. A Texas-based couple, Marco and Bebe Ramirej, promoted USA Now regional center and falsely promised investors an annual return of 5 percent. However, the money was partly used to start personal business, a Cajun-themed restaurant. The duo, who wooed Mexicans, Egyptians and

US promoters used the immigration program to funnel money into their personal accounts or projects. Foreigners given conditional visas were later asked to leave the country. INDIA LEGAL June 15, 2014

PROBE / us immigration / green card

A regional center was infiltrated by Iranian agents to transfer sensitive electronics from the US. Employees of another were involved in opium smuggling and terrorism. Nigerians, also used the money to run a ponzi-like scheme to pay existing investors. South Dakota Regional Center went bankrupt in July 2013 after it had wooed 160 investors to start a beef-processing unit. The worst case was that of Beverly Hills’ lawyer Bruce Cole, who wanted to build a sucralose (artificial sweetener) unit in Moberly, Illinois. Missouri’s Governor, Jay Nixon, stood on stage with the lawyer to announce the public-private partnership. However, Cole wanted to use the EB-5 money to repay the $39 million he had borrowed from the town of Moberly. Construction ceased in September 2011, and SEC filed a suit against him a year later. Most of the foreigners, who were duped in such centers, were Chinese. American lawyers contend that the Chinese market is attractive “not just because of the large demand there, but also because it is possible to simply buy investors regardless of whether you have a sound project or not.” Chinese investors look to their personal network of friends and acquaintances for advice. This gives the local emigration agents, which have expanded exponentially,

THE ROT WITHIN According to Yurop Shrestha, vice president (south asia), Aginsky Consulting, of the 450 regional centers the majority are defunct or promoted by newcomers who wish to get rich fast

June 15, 2014

a huge advantage in recruiting investors. Says Yurop Shrestha, Vice President (South Asia), Aginsky Consulting: “Around 450 regional centers were approved by USCIS. Of them, almost half are defunct, i.e. they have the approvals but have not started any work. Of the remaining 200-250 centers, 10 percent are managed by reputed firms with 30-40 years of experience, 40 percent by mid-tier promoters with 10 years of experience, and the remaining ones are newcomers, many of whom possibly wish to get rich fast.” He adds that 70-80 percent of the centers wish to construct real estate projects, such as malls, hotels, and residential and commercial complexes. There may be some innovative ones like solar energy. Most of the promoters of the centers are obviously real estate developers; but some were started by lawyers, who provide immigration services to the investors. NATIONAL SECURITY One of the main issues that Grassley’s investigations raised related to security, terrorism and tainted money in the EB-5 immigration program. For instance, in one of the emails, the senator said that the USCIS did not inform the Federal Bureau of Investigation (FBI) that its “newly-constructed San Diego field office was built with funds from Chinese investors through the EB-5 Regional Center program.” Molasky Group, the Las Vegas-based real estate firm that built this office, constructed other FBI field offices in Cincinnati, Minneapolis and Portland. What was more worrisome was a multiagency memo that the senator received from a whistleblower. In one case, “there were concerns that a company receiving EB-5 regional center funds could use the program to allow ‘Iranian operatives to infiltrate the United States’, and these Iranian agents “did transfer ‘sensitive electronics from US firms with a suspected ultimate destination of Iran’….” Two employees, who worked for a regional center, were arrested for smuggling opium and proposed terrorist operations in Sri Lanka, Thailand and Georgia. This was not it. Mafia and underworld

BEBE AND MARCO RAMIREJ The couple promoted the USA Now regional center. They cheated Mexicans, Egyptians and Nigerians to run a ponzi-like scheme.

ANSHOO SETHI He raised over $150 million from 250 investors, mostly Chinese, to build a hotel and convention center. $2.5 million went into his account.

had expanded its tentacles into the EB-5 program, as USCIS did not “expressly prohibit persons with criminal records from owning, managing and recruiting for regional centers”. The memo highlighted other security concerns in the program that extended from “money laundering and tax evasion to investor fraud and document fraud”. Political influence was evident; in the case of Gulf Coast Funds Management, the main promoter was the brother of Hillary Rodham Clinton, the former First Lady and former Secretary of State. INCOMPETENT USCIS DHS concluded that the USCIS had little idea about the impact of the program. The latter claimed that since 1990, it had attracted $6.8 billion investments and created 49,000 jobs. According to DHS report, “USCIS was only able to speculate about how foreign investments are affecting the US economy and whether the program is creating US jobs as intended.” There was no mechanism within USCIS to ensure that the funds were used to create new US jobs. In a regional center, 82 percent of the funds came from Americans. However, all the jobs created were claimed on behalf of foreign investors, who were granted permanent residencies. In another one, of the $4.5 million raised from foreigners, $4 million was used to pay existing loans. Part of the

BRUCE COLE After promising a sucralose unit in Illinois, the lawyer used the money to repay $39 million he had borrowed from the town of Moberly

foreign money came in June 2010, while the hotel project was completed in December 2009; technically, the investment was not in a new project. USCIS internal policies can be vague. The Victorville Regional Center completed 90 percent of the construction of a waste water treatment facility before it got foreign funds. The immigration agency ruled it could not claim these jobs on behalf of foreigners, as this was a case of “job preservation” and not “job creation”. Lake Buena Vista regional Center’s claim and methodology on job creation was questioned by USCIS, and its approval was terminated. Grassley found evidence that USCIS officials “facilitated and assisted an (EB-5) applicant… after the petitioner was initially found to be ineligible for the program.” After Gulf Coast Fund Management’s application was denied by USCIS, its director Alejandro Mayorkas wrote an email that “from a political standpoint this R(egional) C(enter) is ‘well connected’.” The center’s promoter and project’s chairman were connected to the Clinton family and Democratic Party. So, if you are approached by an immigration agent who guarantees a Green Card if you invest in a regional center, go to http://www.sec.gov/investor/alerts/ia_im migrant.htm to find out how to check the credentials of a center and its promoter. IL INDIA LEGAL June 15, 2014

PROFILE/ mc mehta

HOW GREEN IS MY VALLEY? the high profile election battle in varanasi brought into focus the need for cleaning the ganga and other rivers. but top environmental activist mc mehta has waged a struggle for our rivers and forests for decades now By Diva Arora

“I

t is a scandal as large as Fukushima, but has been ignored by the government,” says an anguished MC Mehta, India’s legendary green crusader and a lawyer by profession. He is referring to the flagrant violation of environmental laws by large mining companies such as Hindalco, Kanoria and Lanco. They have been depositing fly ash in water sources in Uttar Pradesh and Madhya Pradesh, thereby polluting Rihand Reservoir, Obra Dam and Sonbhadra River. This region is home to some of the biggest coal deposits in the country and has been mined by these companies.

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PERVASIVE CONTAMINATION Sewage overflowing into the Ganga near railway bridge at Allahabad Photos: Anil Shakya

As Mehta, along with Prof GD Agarwal (retd) from IIT Kanpur, went from house to house in Singrauli district of Uttar Pradesh and Madhya Pradesh in 2000, the devastation he saw stunned and saddened him. POISONED TO DEATH In order to check if these companies were following the rule of law, Mehta and his team collected samples of fish, vegetables, fruits, cereals, milk, grain and water and got them tested. It confirmed their worst fears. Heavy metals like lead, cadmium, chromium, arsenic and mercury were present in all these edible items. “Mercury had entered the food chain and thousands of villagers had it in their hair and nails. They were being poisoned to death and there was little we could do. These mining companies were dumping fly ash in water sources for years, and villagers and tribal populations were using it for both drinking and agricultural purposes,” says the famous environmental activist. True to his nature as a crusader and oneman environmental army, he filed a PIL in the Supreme Court (SC) in 2000 to stop

these companies from polluting water sources and harming the health of people. He angrily says, “I feel so frustrated…so helpless seeing the plight of old women and lactating mothers, who have no means of fighting this great wrong done to them. It is a very unequal fight because we need to muster scientific and technical data to buttress our arguments, which is simply not available.” But then, Mehta has the zeal of a missionary when it comes to protecting the environment. As he sits in his newly constructed office opposite Moolchand Metro Station in the capital, concern clouds his eyes. You realize he is fighting an unequal battle. Big corporations and governments who violate environmental laws give two hoots about the damage they cause to natural resources or the sick people affected by their actions as they march towards prosperity. Mehta’s office has a large black-and-white photograph of the Taj Mahal. The white marble floors with black engraved borders too remind one of the monument and the battle he fought in 1984 to save it from polluting industries in Agra. INDIA LEGAL June 15, 2014

PROFILE / mc mehta

PTI

MONUMENT DEFILED Laborers scavenging through heaps of garbage strewn on the bank of river Yamuna at the back of the Taj

It was a chance encounter in the early 1980s that made Mehta take up the Taj case. He was attending a memorial meeting of former parliamentarian Piloo Mody, when a stranger came up to him and started complaining about lawyers. A miffed Mehta asked him, “What is your problem?” Whereupon he replied, “My concern is about the Taj Mahal, which is under serious threat of environmental pollution. Its marble is turning yellow. I have spoken to several lawyers, but no one is willing to fight the case.” Mehta gave him his address. A few days later, newspaper clippings highlighting the state of the Taj landed in his office. MISSION SAVE TAJ Mehta picked up the gauntlet and decided to plunge headlong into tackling the problem. He visited the Taj along with Prof T Shivaji Rao, an environmental engineer, who had written several articles about how pollutants from Mathura Refinery would adversely impact this famous monument. His first visit to the Taj shocked him. “The marble was

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yellowing and the monument was in a state of decay. There was no environment ministry in those days, or any Central Pollution Control Board. Over the next six months, I made several trips to Agra, collecting facts about the polluting industries that were adversely impacting our national monument,” he says. In 1984, Mehta filed a PIL in the SC, demanding that polluting industries be shifted out of the ecologically fragile Taj trapezium. The SC directed him to monitor the 10,400 sq km trapezium, extending from Agra and Mathura to parts of Aligarh and Rajasthan. “It was a mammoth task. I informed the court that this was beyond my capacity. Much later, when the central and state pollution control boards were set up, the task of monitoring air and water levels of industries located within the Taj trapezium fell on their shoulders.” Ultimately, in a major triumph for Mehta the SC ordered 212 small factories surrounding the Taj Mahal to close down. The following year, Mehta took up the case of pollution in the Ganga.

Mehta’s interest was spurred by a headline in the Hindustan Times that said that the Ganga had caught fire: “I rushed to Haridwar, where, indeed, a major fire was blazing on its waters. Someone had thrown a lit matchstick on the toxic effluents being discharged into the Ganga by Bharat Heavy Electricals Ltd and the Indian Drugs and Pharmaceuticals Ltd. The fire took 30 hours to be doused. It made me realize that I needed to do something to stop pollutants from being dumped into the river.” He had found his next calling. SAVING THE GANGA With single-minded devotion, he filed a case against both these industries. Fortunately, the SC decided that the ban on dumping effluents should be extended to the entire Ganga basin, and issued orders asking all industries to take steps to clean up or close shop. In an acknowledgement of Mehta’s supreme crusading skills, the SC later set aside a courtroom every Friday just to hear his cases. The Ganga case was heard every week from 1995 onwards, and resulted in the closure of 300 polluting factories. By now, Mehta had tasted blood. The green avenger decided he would extend his activism to every sphere of a citizen’s life. Scarcely had he completed filing the Ganga case than he started a campaign to introduce lead-free gasoline in Delhi, Mumbai, Bangalore and Calcutta. “All environmental cases are linked. If we look at the statistics, every fourth child who died in the midNineties in India, did so on account of respiratory disorders. That is why in 1994, I filed another PIL in the SC, demanding that we switch over to unleaded petrol,” says Mehta. On April 1, 1995, Delhi became the first city in India to move to unleaded petrol, and CNG was part of that journey, he says. MANY MORE BATTLES Another crusade of Mehta’s was a PIL questioning why mining was being carried out in the Aravalli Hills, right up to Badkal Lake in Surajkund. As he went around collecting evidence on the mining mafia operating up to five kilometers from the Delhi-Haryana border, he found explosives being used for rock

THE PIL MAN 1984: Files a PIL demanding that polluting industries be shifted out of the ecologically fragile Taj trapezium. SC orders 212 small factories to close down. 1985: Files case against Bharat Heavy Electricals Ltd and the Indian Drugs and Pharmaceuticals Ltd for dumping toxic effluents into the Ganga. BHEL shut the unit in Rishikesh, while IDPL took corrective measures in its plant. 1994: Files a PIL, demanding unleaded petrol in vehicles. In 1995, Delhi becomes the first city to move to unleaded petrol. 1995: Files a PIL, demanding a stop to mining in the Aravalli Hills, which ultimately leads to the ban and afforestation. 2000: Files a PIL against large mining companies like Hindalco, Kanoria and Lanco for depositing fly ash in water sources in Uttar Pradesh and Madhya Pradesh.

blasting in an unscientific manner, causing not only an ecological disaster, but also health issues for people living there. “I received many threats from these mine operators, especially after the SC ordered that a team of doctors from AIIMS and Maulana Azad Medical College do a first-hand study of the conditions of laborers working in these mines. The situation was appalling because 95 percent of them were found suffering from TB and other diseases,” says Mehta. One case led to another, and soon Delhi’s slaughter houses was next on his agenda. Nearly 20,000 animals were killed here under cruel and unhygienic conditions. Awards have poured in—Ramon Magsaysay Award, (1997), the Goldman Environmental Prize (1996 ) and the UN Global 500 Award (1993) to honor his path-breaking work. But the zeal, unfortunately, has changed only a few things on the ground. Our river bodies and forests continue to be under immense stress. Mehta admits that pollution levels continue to be alarming and “environ-ment laws are not being enforced either at the central or the state levels.” Mehta, who is presently whipping up opposition against the construction of a nuclear power plant in Gorakhpur village in the Fatehabad district of Haryana, should now motivate and train a band of dedicated green lawyers who can take up cudgels just the way he did. IL INDIA LEGAL June 15, 2014

PROFILE/ sarosh zaiwalla

Journey through

seven seas

as the first asian to set up a solicitor’s firm in london, sarosh zaiwalla’s clients included indian prime ministers, bollywood actors, and large firms in iran and china By Alam Srinivas

he year was 1982. After he finished his solicitor’s program, it took Sarosh Zaiwalla seven days to decide that he should set up his own firm in London. It was destiny combined with instinct that made him the first Asian to do so. His mentor advised him against joining an law firm, as London was wracked with racial discrimination and he would have found it difficult to grow. Zaiwalla’s gut told him that he should lis-

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ten to his guru and venture out on his own. The coincidence was that the maritime law solicitor did not anglicize his name, as most Asians did, and used his Parsi surname. This led to his first break. It opened up opportunities over the next three decades. In an interview with India Legal, Zaiwalla says that the then Indian High Commissioner to London, Seyed Mohammed, heard that he had set up the first Asian solicitor’s firm. “He gave me an entry into the international shipping arbitration work,” he

explains. Mohammed, who was India’s law minister in Indira Gandhi’s cabinet, appointed Zaiwalla as the sole lawyer to handle the High Commission’s cases. India was then one of the largest recipients of food aid under America’s PL 480, which was initiated by President Dwight Eisenhower in 1956. While the US would sell wheat free of cost, India had to charter ships to transport it. “The charter of 200-300 ships led to the arbitration cases that I handled in those years,” says Zaiwalla.

his helped Zaiwalla to meet powerful Indians and non-resident Indians, who wanted to choose an Indian as their solicitor in London. He met the Hindujas, who migrated from Iraq to England during the period, and got close to Rajiv Gandhi and his family, Amitabh Bachchan and Narasimha Rao. With success came other clients, including Chinese and Iranian firms. When Metco, a Dubai-based firm, sued the Special Organizing Committee (SOC) of Asian Games, which were held in India in 1982, for breach of a $5 million advertising contract, the case was handled by the London High Commission and, hence, Zaiwalla. A member of the SOC was Rajiv Gandhi, who was a member of parliament then and was impressed by the solicitor’s work. “I met Rajiv Gandhi much later, and only a few times,” says the lawyer. Even after Rajiv Gandhi became India’s prime minister in 1984, he referred his friends, who needed legal help in London, to Zaiwalla. That’s how Amitabh Bachchan, the renowned Bollywood star, got in touch with the lawyer. In the second half of 1980s, when Rajiv Gandhi and others were accused of taking bribes in the Bofors gun case, a Swedish daily, Dagens Nyheter, named Amitabh as one of the recipients. The actor sued the paper and extracted an apology. Years later, in 2012, Sten Lindstrom, the Swedish whistleblower in the Bofors case, confirmed that Amitabh’s name was dragged in to malign Rajiv Gandhi. “They (Indian investigators) gave me a list of names to pursue, including that of Amitabh Bachchan. Indian investigators planted the Bachchan angle.” After Rajiv Gandhi’s death in 1991,

Rajiv Gandhi was impressed with the work Zaiwalla did during a $5 million breach of contract case against the special organizing committee of Asian Games. Zaiwalla met his wife, Sonia, often. “She told me that Rajiv had high regard for my work. I met her every time I was in Delhi,” says Zaiwalla. In 1997-98, it resulted in him acting on behalf of Sonia to initiate action against a documentary biopic on her life. “We argued that the Italian producer’s effort was a breach of privacy, since she did not hold any public posts at that time. The European Union laws on privacy are strict, and we settled out-of-court with the producer. The documentary was never made.” In between, Zaiwalla worked for another Indian prime minister, Narasimha Rao who, as per CBI’s charges, aided Godman Chandraswami and his aide KN Agarwal to cheat UK’s pickle king, Lakhubhai Pathak. Maneka Gandhi, the Gandhi family’s daughter-in-law, sought Zaiwalla’s help to initiate libel action against Catherine Frank’s biography on Indira Gandhi, which was published by Harper Collins. When the Hindujas shifted to England, Zaiwalla became their legal advisor and informal interpreter.

aiwalla is a Parsi from Mumbai, who lived in Kemp’s Corner near Chowpatty and studied at St Xavier’s and HR Government College. He left for London in 1978 to finish his law, and never looked or came back. But he maintains that there are huge differences between Bombay (as it was called then) and Mumbai (new name). The first is that the city, as well as the country, has become more communal. “In school, we never talked religion.” The second problem with Mumbai is the lack of trees; the older city had huge mangroves, which were cut down as the city expanded its tentacles northwards towards Navi Mumbai. “I agree that cities have to change over time, but the transformation needs to be positive. I am not sure if this is indeed the case with Mumbai,” he feels. INDIA LEGAL June 15, 2014

PROFILE/ sarosh zaiwalla

LEGAL EAGLES Zaiwalla with his team in London

The third problem with his birth city is something that plagues the entire nation, and is connected with the 2014 national elections. “I followed the election campaigns on Aaj Tak, NDTV and CNN-IBN. These elections were not fought on parties’ programs, but on personalities. But I believe in the saying that every saint has a past and every sinner has a future. Therefore, elections in a mature democracy should be fought only on merits,” he explains. However, the big positive is the changing demographics in India. It is a given that younger people will enter politics, he says. In England, the prime ministers are under 40 years; the same may happen in India. In England, MPs travel by buses and other public transport; India needs to acquire a similar mindset. “But I am confident that India will change,” says Zaiwalla.

t is in the area of global finance that Zaiwalla’s work has had tremendous impact. One of his famous cases was the Shah versus HSBC, which involved money laundering issues. The Shah couple, with

Zaiwalla’s clients include Amitabh Bachchan, Sonia Gandhi, Maneka Gandhi and Narasimha Rao, and among those who have trained at his firm is Tony Blair. 44

June 15, 2014

business interests in central Africa, instructed HSBC to transfer money from their account in the UK on four occasions, but the bank did not do so. HSBC became suspicious about the source of the money, reported it to UK’s Serious Organized Crime Agency (SOCA), and waited for the agency’s consent. The Shahs filed a case against HSBC and claimed $300 million in damages. After 54 months and seven court judgments, the High Court dismissed Shahs’ claim and ruled that the bank was entitled to delay the payments. But the orders established a procedure that banks had to follow in such cases. While they could initiate action if they had “genuine and honest” suspicions, the same would not be true if the decision was taken in “bad faith”. But it was the case that involved Bank Mellat, Iran’s largest private bank, which has had larger ramifications. Zaiwalla argued that the sanctions against the bank, allegedly because of links to Iran’s nuclear program, could not be imposed without evidence or hearing from the aggrieved party. “The favorable order we got, I am told, was carefully studied by the US State Department,” he says. The order may lead to a $4 billion penalty, which will come out of the pockets of UK’s tax payers. In the past three decades, Zaiwalla emerged as an influential player in global politics and diplomacy. As a lawyer, he was involved in China-related issues, which revolved around Tibet policies, the nation’s relationship with Dalai Lama, the exiled Tibet leader, and the takeover of Hong Kong from Britain. This is not surprising. Tony Blair, former prime minister of Britain, trained at Zaiwalla & Co, decades ago. His name first appeared in reported court document (Lloyd’s Report 28, 1983) in a case he fought for the firm on India’s behalf. In the La Pintada case, the issue involved was whether India was liable to pay compound interest as penalty on late payment to owners of the ocean-going vessel, La Pintada. The case went to the House of Lords, the highest court in England, which decided in India’s favor. It was Indian government’s first victory in the apex court. It opened more doors for Zaiwalla. IL

SUPREME COURT/ appointment controversy

LEGAL TANGLE

Pramod Pushkarna

the imminent appointments of gopal subramanium and rohinton fali nariman as sc judges may prove to be a thorn for nda regime. one of them may become the chief justice in the next few years

henever a new government comes to power, things are set to change. But at times, it is the executive which is handicapped and the Modi government is no exception. This is especially so in judicial appointments of the highest order. The Modi government will have to abide by the decision taken by a five-judge Supreme Court (SC) collegium, which elevated two former solicitor generals— Gopal Subramanium and Rohinton Fali Nariman—to the top court. Even though their names are yet to be sent to the presi-

dent for the issue of “warrant of appointment”, the appointments are now binding on the Modi government. Both Subramanium and Nariman were appointed during the previous Congress-led UPA government and fought several controversial cases for it, including those related to scams. The two had demitted office amid controversial circumstances. Once they become SC judges, with several years left for their retirement, the chances of either of them becoming chief justice of India—even within Modi’s tenure—are quite strong, which could cause trouble for the PM. While Modi will have to bear with the two, the only option he has is long-term INDIA LEGAL June 15, 2014

SUPREME COURT/ appointment controversy

Amitava Sen

LEGAL LORD (L-R) Rohinton Fali Nariman has fought for the UPA government in cases like the VK Singh age controversy and Kundankulam nuclear power plant case

—bring about changes in law and curb the powers of judiciary in appointments, which, in fact, UPA had also tried to bring about through the 120th Constitution Amendment Bill. Their appointment to the Supreme Court also raises the issue of supersession of several senior high court judges. The only precedent that exists is that of Justice Kuldip Singh and Justice Santosh N Hegde being brought directly to the SC. HIGH PROFILE JUDGES Gopal Subramanium, 56, was appointed additional solicitor general in 2005 and continued in the post till May 2009. In July 2007, he acted as amicus curiae to assist the SC in the sensational Sohrabuddin Sheikh fake encounter case and slammed the Narendra Modi government in Gujarat for filing a charge-sheet on the basis of shoddy investigation to shield the “real culprits”. He told the SC bench of Justices (retired) Tarun Chatterjee and PK Balasubramanyan that the chargesheet would “benefit the accused.” Terming it an unacceptable chargesheet, he said: “It speaks about Sohrabuddin and his wife Kausar Bi, killed two days after her husband was killed in a fake encounter. But there was no mention of

Thanks to the two appointments, it remains to be seen whether the Supreme court’s collegium system will live through Modi’s government. 46

June 15, 2014

the third person (Prajapati), who was picked up from the bus proceeding to Ahmedabad and killed along with Sohrabuddin and Kausar Bi.” Subramanium, incidentally, has also served in other high-profile cases and his profile speaks volumes about his academic and professional expertise. He served as counsel for the Justice Verma Commission, which examined the security lapses leading to the assassination of former prime minister Rajiv Gandhi. He also assisted the apex court in the case of petrol pump allotment to widows of Kargil martyrs by the Vajpayee government; was counsel for the Justice K Venkataswami Inquiry Commission that probed the Tehelka tapes exposing corruption; and was special public prosecutor in the parliament attack case. In sharp contrast, Nariman Jr, the son of eminent jurist Fali S Nariman, is reserved and known to be glued to legal briefs, particularly corporate and taxation law. It was when Subramanium resigned in July 2011, protesting against Nariman’s retention as a lawyer in an ongoing scam case that the government filled the crucial post of solicitor general with the 59-year-old Nariman, But he also demitted office in February 4, 2013. Presumably, the stern solicitor couldn’t see eye-to-eye with the then law minister, Ashwini Kumar. Nariman, too, has taken up cudgels on behalf of the government in a number of cases. These include the then army chief VK Singh’s age dispute, Vodafone taxation, coal scam, the controversial Kudankulam nuclear power plant and the legality of VIP

security and use of beacon lights. JUDICIARY’S PREROGATIVE It wasn’t always like this. There was a time when the executive was the sole authority to appoint and transfer judges. However, it was in 1993 that a bench of the Supreme Court examined Articles 124 and 217 of the constitution related to the appointment of judges to the SC and high courts, respectively. Popularly called the “Judges case”, a seven-judge bench comprising of Justices (all retired) late J Verma, SR Pandian, AM Ahmadi, MM Punchhi, Yogeshwar Dayal, GN Ray and AS Anand on October 6, 1993, delivered the mammoth judgment denuding the executive of its power to appoint SC or HC judges. It ruled that their appointment “is an integrated, participatory, consultative process” for selecting the best and most suitable persons for the job. Thus, all the “constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose.” It said initiation of the proposal for appointment in the case of SC “must be by the chief justice of India (CJI), and in the case of a high court, by its chief justice; for transfer of a judge or a chief justice, the proposal had to be initiated by the chief justice of India.” It added: “In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary, symbolized by the view of the CJI and formed with consultation with members of collegiums and other senior judges, has primacy. No

appointment of any judge to the top court or any high court can be made, unless it is in conformity with the opinion of the CJI.” CRUCIAL COMMISSION As reports of deterioration in the quality of judges appointed by collegiums poured in, the Vajpayee government in 1998 moved the Constitution (98th Amendment) Bill in the Lok Sabha in 2003, which provided for the constitution of a National Judicial Commission (NJC) to be chaired by the CJI along with two of the senior-most judges of the SC. The law minister, along with an “eminent citizen” to be nominated by the president in consultation with the prime minister, would also be members. The NJC would decide the appointment and transfer of judges and probe cases of misconduct by them and those from the highest judiciary. The bill lapsed. Later, the UPA government introduced the 120th Constitution Amendment Bill, replacing the existing system with a Judicial Appointments Commission. But the bill was forwarded to a select committee for better consultation. Reacting to attempts by governments to do away with appointment of judges by judges, some CJIs like P Sathasivam, KG Balakrishnan, SH Kapadia and SP Bharucha warned against its tinkering. But, the former judge of the SC, VR Krishna Iyer said: “Persons are chosen, privileged groups get priority, reconsideration is often rejected. The methodology is unscientific. The collegium must go.” It remains to be seen what the Modi government will do. IL

LIVING LIFE, KING SIZE (L-R) Qureshi’s farm house in Chhatarpur, designed like a 19th century mansion; Pernia, his daughter and designer, who

Amitava Sen

HIGH PROFILE Gopal Subramanium (above) was amicus curiae in the Sohrabuddin Sheikh fake encounter, petrol pump allotment to Kargil martyrs and parliament attack cases

INDIA LEGAL June 15, 2014

FOCUS/ rape/repeat offenders

increasing number of incidences show that habitual rapists are neither tracked, nor rehabilitated By Shobha John

RISING SEX

ADDICTION I

t was a landmark judgment and could change the way rape cases are handled by India’s legal fraternity. On April 4, 2014, a sessions court in Mumbai awarded India’s first death sentence for rape to three accused under the new Criminal Law (Amendment) Act, 2013. They had gangraped a photojournalist and a call-centre employee in the abandoned Shakti Mills in Mumbai. The ruling notwithstanding, experts say that little has been done in terms of law and order to tackle cases of recidivism—the chronic tendency towards repetition of criminal or anti-social behavior. This is especially so in the case of rape cases, where lack of punishment is only emboldening the perpetrators of crime. Repeat sex offenders need to be monitored and counseled, and communities warned of them. In fact,

June 15, 2014

Of the 242 sex offenders in Tihar jail, three-fourths were repeat offenders. Many of the latter were not registered as sex offenders and police had no database on them. Dr Rajat Mitra, director of Swanchetan Society for Mental Health, Delhi, says: “Sexual assaults are the most complex of all crimes. But in India, the current thinking is the opposite. It is seen as the easiest crime.”

Illustrations: Anthony Lawrence

HOOKED ON RAPE More often than not, recidivism acts are linked to increased sex addiction, a taboo subject in India, but where the numbers are growing. Mitra closely studied 242 sex offenders in Tihar Jail between 1999 and 2004. “Of these, three-fourths were repeat offenders and admitted they had raped earlier. Many were not registered as sex offenders and when finally caught, the police never interrogated them about this aspect,” he points out. “It’s important to have a personality database on them, as many have high psychopathic traits,” he avers. However, their reformation is easier said than done. Experts say that pedophiles and violent sexual offenders have a lower likelihood of rehabilitation than those who commit non-violent sex offenses that don’t involve children. The Mumbai court even acknowledged this difficulty. It declared: “The Mumbai gang-rape accused have least respect for law. They don’t have potential for reformation as per facts of case.” For most repeat offenders, rape is normal sex. Remember the October 2003 rape of a Swiss diplomat at 10 pm in the parking lot of Delhi’s Siri Fort Auditorium? The man who assaulted her seemed coldly casual about the entire act. It’s likely that he was a repeat offender. Out of the 24,923 rape cases in 2012 that the National Crime Records Bureau has listed, it is a moot question as to how many are repeat crimes. Some rape cases in the past were repeat offences and may not have occurred if remedial measures had been taken. On May 28, 2012, Sunil Suresh alias Pappu Salve of Shirdi was released from jail for “good behavior” after serving a term for the rape and murder of a minor in 2003. No one tracked him. Later that year, he allegedly kidnapped, raped and killed another nine-year-old girl. He was arrested. So ashamed was his wife Sarika that she reportedly said: “My husband should be punished as soon as possible. He should be hanged to death.” Similarly, in the 2010 Dhaula Kuan gang-rape case of INDIA LEGAL June 15, 2014

FOCUS/ rape/repeat offenders

a 30-year-old BPO employee, one of the two men held had been arrested earlier in another gang-rape case in 2007 from Faridabad. He was out on bail.

PERILS, OUT IN THE OPEN (Top to bottom) Salim Ansari, Siraj Khan, and Qasim Shaikh, who were given death sentences in April 2014 for the rape of a journalist at the Shakti Mills compound in August 2013

June 15, 2014

INDIA FALLS WAY BEHIND Most experts feel nothing substantial is being done to track or counsel sex offenders in India, though one Delhi police chief was quoted as saying that his force had started keeping a tab on such people released from jail. Mitra asserts: “To say that India has woken up to this issue is not true. We can say that only when we develop institutions to tackle sexual crimes. Police units in many countries abroad have well-developed sexual offenses units. It takes 10 years to gain expertise to interrogate and establish sexual crimes. In India, such persons have little expertise in questioning the victim, leading to a nightmarish scenario.”

Arvind Verma, an ex-IPS officer in the department of criminal justice, Indiana University, US, in collaboration with his student Doug Evans, says that despite repetition of such heinous acts, no attempt has been made to develop a sex registry, to track released offenders and keep them under surveillance. Families, too, welcome such offenders back, thinking they will get reformed. But what they need is psychological evaluation. A lesson could be learnt from a few other countries, where sex offenders are dealt with in a scientific manner. The Federal Bureau of Investigation in the US, for example, has a National Sex Offender Public Website with the latest information on the identity and location of known sex offenders from all 50 US states. While on probation, they’re subject to residency restrictions. They cannot live within a predetermined distance (typi-

A hidden illness

IKRAM (name changed), 29, always had sex on his mind. From the age of 11, he was stimulated by masturbation, porn magazines and adult movies. By 22, he had gravitated to prostitutes and would sometimes go to them twice a day. When he entered a job that entailed public dealings, he started picking up girls. “I could make out which woman was available, and till date, have had physical relations with about 50 of them. I got so obsessed that I couldn’t concentrate on my job. That’s when I realized I needed help, and fast,” he says. He found a savior in Sex Addicts Anonymous (SAA), a group akin to Alcoholics Anonymous (AA). It was started for the first time in India at a rehabilitation center of the Society for the Promotion of Youth and Masses (SPYM) in south Delhi in April 2013. So far, 40 people from middle and lower income groups have attended various SAA meetings. These include students, shopkeepers and public servants. They spiritually heal each other of their obsession with sex, using the same Twelve Steps of healing that AA too has evolved. Many have found their lives changing for the better.

ikram’s sexual trysts even saw him touching women inappropriately in buses and in the Metro. “I was chided by them, but thankfully, was never hauled up. It was uncontrollable, and I understood what rapists must sometimes be going through too. I started feeling like a freak of nature and abnormal.” In desperation, he even went to psychiatrists, only to be told that masturbation was normal. Finally, he was lucky to read about SAA on the internet, and decided to go for its meetings. The first time he went, he was nervous. But when he reached the place, he was relieved to find 5-6 other men, suffering just like him. The guidance and love he found here, along with a sponsor who was in touch with him always, helped him recover. His family has now found a girl for him and he will get engaged soon. “I will be faithful to her

always. I intend going to SAA all my life,” he asserts. Unfortunately, in India, sex addiction is a taboo subject and mired in hypocrisy. “Chastity is given a high premium, whereas the West is much more evolved than us,” says Anil Kumar, another SAA member. “Few know that sex addiction is deep-rooted in India. The sooner we treat this as an illness, the better. Otherwise, we will have more cases like Shakti Mills and Nirbhaya. I hope more SAA chapters can be started in other cities too,” he says. Experts too are unanimous that the time has come to accept that sex affliction—also called paraphilia, meaning “beyond love”—exists in substantial numbers in India and it is time to deal with it. Tilak Ram, 40, was a member of AA, and that’s how he came to know of SAA. His problem was peculiar. He couldn’t speak to women without getting nervous and shaky. “I would fantasize too much about sex, even during work. I hardly had any relations with my wife,” he says. But ever since he started going to SAA a month back, life has got better. “I fantasize less and want to get better.” And that is the first step towards recovery—having the will to change. Unfortunately, says Anil, the Indian system is not geared to making people like him better. “There is little empathy from psychiatrists and they treat us coldly. Most of them are financially motivated,” he says. “The flag-bearers of good treatment are mainly women psycho-therapists who are more sensitive.” Does he support the death penalty for repeat sex offenders. “There should definitely be a deterrent, otherwise things will spin out of control,” he says. Is anyone listening?

SAA can be contacted at: saawaredelhi@gmail.com The meetings take place at: SPYM Centre building, 111/9 (Opposite CNG station & opposite Sector B4 Vasant Kunj, Gate No 2), New Delhi INDIA LEGAL June 15, 2014

FOCUS/ rape/repeat offenders

FBI has a website that lists the names and location of known offenders. In addition, there are residency restrictions on them; violations can lead to 10 years in prison. cally 1,000 ft) of locations, which children frequent (parks, schools, pools, etc). They are barred from entering public libraries, driving buses or taxis and using social networking websites. Violating these restrictions can result in a felony conviction and as many as 10 years in prison. England, Australia, Canada, France, Japan and Ireland have sex offender registries, although the duration of registration is shorter than in the US and the information is only accessible to law enforcement authorities, explains Verma. This registration has to be done annually. But it is South Korea which has one of the toughest laws in this regard. Under the legislation adopted by its parliament in 2010, chemical castration can be carried out on

June 15, 2014

serial sex offenders convicted of crimes against minors. In 2012, some 20 MPs moved a bill for their physical castration. NEED TO REIN IN OFFENDERS In India, sections of the legal fraternity and activists are asking for restrictions to be imposed on sex offenders. However, tracking them is not all that easy. In the US too, says Verma, some sex offenders provide false addresses, fail to register and have no residence and cannot provide an address. “Once they are released from jail, treatment is often ineffective. It takes place in groups and includes individuals with different treatment needs that cannot be addressed in group therapy,” he informs. Instead, treatment programs should happen in prisons and be made mandatory. Prison officials can even offer incentives for participation. More importantly, adds Mitra, death sentence is never the answer. “The certainty of punishment is more important and nothing is being done in that area,” he reasons. Interestingly, sex offences are the result of untreated sex addiction. (See Box). Dr Rajan B Bhonsle, honorary head of the Department of Sexual Medicine at KEM Hospital and Seth GS Medical College, Mumbai, says that in the last 5-7 years, there has been a rise in those seeking professional help for sex addiction. At any time, between 2-3 per cent of the sexually active population could be addicts, he says. He himself sees 5-7 new cases every month. So when does a case become one of addiction? Bhonsle says: “A ‘compulsive preoccupation’ with any activity that can make the person ‘dysfunctional’ in the very primary areas of life could be classified as addiction. Sexual addiction, therefore, implies an unrelenting inability to control one’s sexual urges despite having complete knowledge of its adverse consequences.” Unfortunately, India has a dearth of mental health experts to handle these cases. “No training is given even during postgraduate studies for psychiatrists, nor are psychologists counselled,” says Bhonsle. “Most mental health professionals have no idea how to help such cases,” he adds. When will India wake up to this serious issue? IL

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TRENDING/ society/marriage

Salman Shaikh

NURTURING DREAMS Make My Life, the first marriage bureau for diabetics in India, has transformed hopes into reality

NOVEL DOSE OF INSULIN Diabetic girls no longer find it difficult to get a partner in Gujarat. A matchmaker bureau is helping them find an ideal soulmate By Mahesh Trivedi

hen Gopal, 22, an Ahmedabad-based bank officer, fell in love with Maya, a comely college girl, his joy knew no bounds. When she reciprocated after a while, he was determined to marry her. But his dream collapsed soon after. When his parents came to know that Maya suffered from juvenile diabetes, they did not agree to the proposal. Both Gopal and Maya were heartbroken. Maya could deal with regular insulin shots and tests that were a part of her life. But the insensitivity of

June 15, 2014

others around was what hurt her the most. Dr Seema was a good-looking post-graduate doctor in her early thirties, earning a sixfigure monthly salary at a Vadodara hospital. But that hardly mattered when she was looking for a spouse. The fact that she was diabetic was enough for prospective grooms and their families to shy away from her. As time went on, she became depressed and started suffering from occasional convulsions. These are only two examples of people shunned due to biases and misconceptions regarding diabetes in Gujarat. Many families are opposed to marriage with a person who

Bitter Truth ACCORDING to the World Health Organization, India will have over 60 million diabetics by 2020. Dr Sushil Patel, a diabetologist, says the economic costs of the disease are estimated to be 2.1 percent of India’s GDP. Worse, every 10 seconds, a person dies from diabetes-related complications. In urban India, 10-12 percent suffers from diabetes. Rural India fares better due to better food and lifestyle, and has a much lower incidence of 3-4 percent. Diabetes, incidentally, is of two types: Type I and II. Type I is usually diagnosed in children and young adults, and also known as juvenile diabetes. Only 5 percent of diabetics belong to this category. Here, the body doesn’t produce insulin, the hormone which converts sugar and starch into energy. Type II diabetes is the most common form of this illness. Here, the body does not use insulin properly. Diabetes is no longer a cause for concern, and patients can lead a normal life if they take care of diet, and exercise regularly.

has to take multiple insulin injections, be careful of diet and manage lifestyle in the face of fluctuating sugar levels. Plus, there is the risk of health complications. The western state, often considered the diabetic capital of India, has a high incidence, with some 40,000 youths with Type I diabetes. Type-II diabetes is believed to be present in 20 per cent of the adult population in Gujarat.

eeing the suffering and humiliation that unmarried, Type I diabetic youngsters go through, Ahmedabad-based diabetologist Dr Mayur Patel decided to give them a helping hand and change their lives. He started a help center in the city called, Make My Life. which is probably India’s first marriage bureau for diabetics. And it was apt that the centre was started in Ahmedabad, one of India’s top medical tourism hubs. Make My Life was launched by Patel, who is also the chairman of the All-India lnstitute of Diabetes and Research, with the help of well-known matchmaker Sangeeta Patel. “When Type I diabetics fail to find a bride or a groom, they suffer from depression. This worsens their sugar levels. We want to make

“Type I diabetics face discrimination in marriage. But problems faced by them are easily manageable.” —DR MAYUR PATEL, diabetologist

their lives sweeter,” says a beaming Sangeeta. Patel, who has treated some two lakh diabetics over the last 27 years, receives countless inquiries from worried parents from all over the country in this regard. “Type I diabetic youngsters, especially girls, are severely discriminated against when it comes to marriage. But all the problems faced by them are easily manageable,” assures Patel. Almost 90 percent of inquiries received from all over India are from girls. Gita Shah, 31, is one of the beneficiaries of the bureau. “I am a college lecturer and the only diabetic in my family. Would-be grooms pull a long face after knowing about my disease,” says Gita. “However, Sangeetaben has been able to convince some of them that my ailment is wellcontrolled and I can lead a normal life. I am hopeful of finding a husband soon.” Patel is doing yeoman service in this field as his counselling and medical services are free. He further boosts the confidence of diabetics by conducting tests and showing the reports to drive home the point that the management of this disease is easy. Rekha Pamar, 30, is another diabetic. Her parents were worried about her future considering her age and medical condition. So after coming to ‘Make My Life’, they decided to lower their expectations about grooms. “Though I am beautiful and make Rs 90,000 as a public relations manager in a foreign bank, I have decided to go for a boy from a good family background, even if he is not handsome or earns less than me,” she says. Patel says that as he gets inquiries from outside Gujarat and feels that such marriage bureaus should be started in other states in India as well. Is there another savior somewhere? IL INDIA LEGAL June 15, 2014

TRENDING/ matrimonial sites/ trulymadly

A Match for the Times marriages might be made in heaven, but a matrimonial website uses psychometric test to make your task of finding life partner easier on earth By Shobha John

T was like searching for a needle in a haystack. That’s how Abhishek Agarwal felt when going through some traditional and much-touted matrimonial sites. “Though I got many matches, I simply couldn’t get an idea about the other person. On top of that, I was flooded by spam mail,” says the 25-year-old Delhi-based art director. Luckily, friends told him about a new match-making site, which seemed different from run-of-the-mill ones, as it was based on psychometric tests. “I registered two weeks back, and have already got 10-15 relevant responses, out of which, I have started messaging two persons.” This innovative concept of matching people through a compatibility algorithm and a stringent verification process was started by a Delhi-based website called TrulyMadly in February this year. The start-up is a brainchild of former founders of MakeMyTrip and Letsbuy—Sachin Bhatia, Hitesh Dhingra and Rahul Kumar—who felt there was a lacuna in

June 15, 2014

traditional online matrimonial sites, which their venture could fill. Matchmaking is a huge market in India, with experts pegging it at $1 billion. The online alternative alone is estimated at $100150 million. Arranged marriages are still the norm in the country, but increasing, youngsters in cities are looking beyond caste, creed, religion and regions for partners, who can match them in ideas, values and habits. And naturally, they want matchmaking sites to reflect this. Agarwal predicts: “As this concept is good, I feel business will boom in a year. I have already put TrulyMadly on my Facebook and have recommended it to friends.” IT CATERED TO A SOCIAL NEED So how did this site start? To use a cliché, necessity is the mother of invention. Dhingra, former CEO and founder of Letsbuy, says it started from his own experience. His in-laws were looking for a groom for his sister-in-law on traditional matrimonial sites. “Within a week, they got some 200 responses, along with loads of spam. There were no security set-ups either,” says Dhingra. “This was how the idea originated.” They found that most profiles, especially of girls, were put together by parents. “That’s when I realized there was a ready market for good, reliable matchmaking portals. Kumar (another founder), who is in the US, also had

parents looking for a bride for him without much success,” says Dhingra. What makes this portal different is that it is not just a matrimonial site, but a matchmaking one. Most people between 23-28 years don’t want to get married immediately, but would rather zero in on a right partner, which could lead to matrimony. Almost 4045 percent of their clientele is women, who come from professions like advertising, media and marketing. The men include doctors, engineers, lawyers and chartered accountants. In order to understand the market, the portal did a survey last year (see box). Priyanka Gupta, 20, is a Kolkata-based student, who registered here a few weeks back. She says: “I like this site, as I don’t need to do any random file checking. Instead, profiles are matched according to my likes and dislikes. I have already got three of them.” Those who have registered here are independent and forward-looking individuals, says Dhingra. “Some 15-17 percent of women on our website have admitted they smoke, whereas on traditional sites, no one would do that. Education, profession and personality are the factors they look out for,” he says. HOW IT USED SOCIAL MEDIA The site took a year to set up. Instead of spending on advertising, the founders took to the powerful medium of social networking to promote it.

It also started a social media campaign on April 9 called “#BreakingStereotypes”. It tried to create a buzz by doing away with stereotypes and labels. It ran for five weeks, and connected people across India through Twitter, Facebook, the TrulyMadly blog, Instagram and Pinterest. It introduced 10 fresh stereotypes a week, and had photographs, articles and tweets using humor. Here are some samples which were a hit in cyberspace: I’m a Hindu and I love beef burgers I run an NGO but still love my H&M blazer My best friend is a guy and I’m not sleeping with him Hitesh says than pan-India, some 30 percent of marriages are love marriages and 70 percent of parents are fine with it. Psychometric tests are, therefore, meant to check the compatibility of those registered. The home page of the website describes that in the first stage, attributes for initial connection are identified, like common interests and hobbies and lifestyle choices.

GOING ONLINE WITH SOLUTIONS (L-R) Hitesh Dhingra, Sachin Bhatia and Rahul Kumar, the founders

The website filters the options for match seekers by asking them to answer 30-40 questions. There are enough security measures embedded to protect privacy too. INDIA LEGAL June 15, 2014

TRENDING / matrimonial sites/ trulymadly

Believe it or not A survey conducted by TrulyMadly among 290 couples in Delhi and 580 individuals across India between July-December 2013 came up with interesting findings. They are: 69 percent of marriages are arranged marriages, showing

the part played by parents and family 50 percent of couples live independently, 48 percent with groom’s parents and 2 percent in a joint family Despite the fact that the majority adopt for arranged marriages, those in a love marriage reported higher level of marital satisfaction Submissiveness, unassumingness, warmth and self-esteem are positively correlated to marital satisfaction

Dominance in women is negatively correlated to

husband’s marital satisfaction Dominance in men has no significant correlation to wife’s

marital satisfaction (typically Indian) Arrogance and conflict over living arrangement have

negative correlation to marital satisfaction Following rituals has a positive effect on marital

satisfaction, according to the survey 45 percent of women reported that most of their decisions

were taken by their family, while 15 percent said they took their own decisions. For men, the corresponding figures were 47 percent and 24 percent respectively Gifting as an expression of love was given the least importance by both

“These are then supplemented by areas found important for long-term relationship satisfaction,” including core personality traits like interpersonal and problem-solving skills, value system and career goals. The psychometric test comprises 30-40 questions, answers to which are analyzed by a team of psychologists and counsellors. Dr Sameer Malhotra, head of the Department of Mental Health and Behavioural Sciences at Max Hospital, says that psychometric tests can give a general feeler about the person. “They do help us understand the personality profile, though proper tests would take hours, will need proper instruments and qualified persons to conduct them.”

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HOW SAFE ARE YOUR DETAILS Making the site secure is top-most priority, as almost 30 percent of profiles on matrimonial sites are from married men, who seek voyeuristic pleasure. Also, information and photos are often made public on these sites. To prevent that, TrulyMadly gathers some 200 pieces of data from an individual’s Facebook, LinkedIn and other social networking profiles for verification. Users also have to submit documents such as PAN card, licence, voter ID and provide their phone number, employment details and address. These details are verified by an outside company. Users should have at least a 25 percent trust score to be able to see other profiles. Names and photos are not displayed on the site immediately and one has to get at least 10 credit points, for about `100, to see profiles. Free credit points are also given and the higher the points, the more the user can see a compatible profile. People can also “like” a profile, and if there is a response, they can message each other. TrulyMadly gets about 25-30 profiles every day. Almost 70 percent of its clientele is from Delhi-NCR, though it plans to move to Bangalore and Mumbai soon. “We expect both these cities to be our biggest markets and hope to reach 10,000 people within a year,” says Dhingra. It waits to be seen if this will be a matchless venture. IL

ADVERTORIAL

Raising the Bar Sharda University’s School of Law provides students with a strong foundation, and aims to equip them for career avenues to meet the growing demand for legal professionals in the changing Indian economy.

ndia’s legal education has undergone path-breaking changes, as it tries to respond to the challenges thrown by globalization and domestic reforms. It began with the creation of the National Law School (NLS) in Bangalore in 1987. The NLS marked a distinct departure from the traditional university law degrees, as it aimed to meet global requirements rather than churning out graduates who could only work as litigating lawyers. Subsequently, the NLS model, which offered a five-year LLB course, was replicated in other states too. Taking a cue, the private sector entered the fray in a big way; they adopted unique syllabus and teaching methodologies to cope with the growing demand. Sharda University, approved by the University Grants Commission, kept pace with these changes through its courses and teaching practices. Established with the approval of the Bar Council of India, its School of Law has a creative and strategic approach to education and law reforms. It aims to equip students for various career avenues by providing experience-based education that broadens their intellectual horizon, analytical skills, besides inculcating ethical sense of role and purpose of lawyers in society. The teaching faculty at Sharda University is drawn from academia, legal profession and corporate world, and teachers have national and international qualifications. With their strong tradition in teaching and research, the faculty equips students to take up the challenges brought in by sweeping changes in the profession. It lays stress on clinical and problem-based learning approaches, as well as skills development. The School of Law provides students with a strong foundation in the rule of law and builds upon the diversity and depth of the law curriculum by adding courses in emerging fields of specialization. It provides practical skills training in advocacy, alternative dispute resolution, legal research and writing, problem solving and ethics, and ensures that students are exposed to theoretical and critical perspectives. It promotes involvement in national and global research initiatives. When asked how the university is different from the traditional law colleges, Dr P Rathna Swamy, Dean & Professor, School of Law, Sharda University, elaborates: “Faculty and curriculum design set us apart from other institutions. Our aim is to become one of the top 10 law institutions in India. We were awarded the Best Emerging College of Law in 2013-2014. Ours is one of the best law schools in the world, as it gives importance to para-legal and clinical activities. Ours is the only university in India which has introduced this concept and a separate curriculum right from the 1st year of the 5-year degree program. We have introduced communication skills in addition to the compulsory curriculum designed by the Bar Council.”

Dr P Rathna Swamy, Dean & Professor, School of Law, Sharda University

Students are required to have adequate knowledge of court procedures, court documentation, and the role of lawyers in delivering justice to clients.

he Legal Clinics and Legal Aid programs train students in both the theory and practice of laws such as Trademarks, Patents and Copyright Law, Motor Vehicle Accidents and Personal Injury Claims, in addition to Civil Procedure (under the Code of Civil Procedure 1908) and Criminal Procedure (under the Code of Criminal Procedure 1973). While Legal Clinics program allows students to train with practicing lawyers in the court, Legal Aid program trains 3rd year students to give advice to clients who cannot afford to see a lawyer for a number of reasons such as high lawyer’s fees, lack of knowledge about their claims, and staying far away from the courts. Today, students who pass out as graduates do not limit themselves to the traditional roles of advocate and solicitor. They tend to embrace a wide range of careers. As Dr Swamy observes: “Students have the opportunity to become corporate lawyers. We have a special curriculum design; during their internship they learn and make presentations on legal issues. As a result, they understand the requirements of the corporate sector. We groom students to meet this challenging role. Hence, their marketability and employability increases. Similarly, our curriculum helps them to become practising lawyers. We prepare students to take up judicial services; from the 4th year onwards, we organize special classes to prepare them for judicial services; we have attempted to establish relationship with international universities for mutual learning.”

ADVERTORIAL

Striving for Excellence Galgotias University’s School of Law trains the students in all the processes of the law and provides hands-on experience

algotias University (GU), located in Greater Noida, focuses on multi-disciplinary research, education and a learning model that emphasizes active learning. GU’s bold vision builds upon over a decade of excellence of Galgotias institutions, among which the School of Law occupies a pride of place. The curriculum at the School of Law offers a blend of academic and extracurricular activities. Though the institution’s library is rich with thousands of books, academic and reporting journals and other reference materials, students also have access to numerous online legal databases, as its Wi-Fi enabled campus enables them to stay updated online. Classrooms are well-equipped with LCD projectors and other IT tools for education. A spacious Narendra Modi presenting DQ Cybermedia Award to Suneel Galgotia, auditorium serves the need for various seminars, conferences Chancellor of the University and other events. The School of Law adds practical elements to classic subjects, thereby making the course more relevant client meetings; while the clinic’s faculty represent clients and useful. Students are prepared for practice of law through oral arguments before the relevant courts. through Clinical Legal Education programmes, thereby The School of Law at GU is equipped with quality teachers producing competent and socially responsible lawyers. and researchers to match the global standards in legal eduThe School of Law, a part of GU’s mission of providing cation. It is keeping pace with the overall standards set by quality legal education, offers the following courses: the University. Three-year LL.B. (Hons.) Programme; five-year B.A. LL.B. (Hons.) Programme; five-year BB.A; LL.B. (Hons.) ecently, GU was top-ranked as the Top Indian University Programme; one-year LL.M. Degree Programme and Doctor (Private) for excellence in Academics & Global Linkages of Philosophy (PhD) in Law. and for being among top institutions in India for placements The new legal aid clinic at the School of Law was recently at the DataQuest Cybermedia ICT Awards held in Delhi. It inaugurated by Justice Dipak Misra, Judge, Supreme Court. was the only education institution recognised at the awards, Justice Misra also delivered the Galgotias University annual essentially reserved for elite corporates and individuals in the public lecture. The new legal aid clinic has a free 24x7 ICT space. The university was given the award by Prime helpline so that people, who need legal advice and Minister Narendra Modi, who was then the Gujarat Chief assistance, can call and obtain help instantly. Minister, for differentiating itself from other universities in The legal aid clinic is an initiative of the students and facterms of global-level academics and international pedagogy. ulty of the School of Law, GU, in collaboration with the UP Says Suneel Galgotia, Chancellor, Galgotias University, State Legal Service Authority to give effect to the policy and “We have been very diligently building all the education directions of the National Legal Services Authorities Act, processes necessary for intellectual capital creation systems. 1987, and the National Legal The excellence of education GU’s world Services Authority (Legal Aid class education is constantly recognised Clinics) Scheme, 2010. by top corporates. We are ranked highThe clinic enables disadvaner every year by leading media. Our taged members of the general students have been winning at technolopublic, largely hailing from the gy and innovation events at NASA in surrounding areas to access free the USA and at several national forums. legal help and obtain speedier jusWe offer the finest world-class faculty, tice in the local courts of law. industry-guided courses with excellent Students from the School of Law up-to-date syllabi and international pedprovide assistance with research agogies, supported by infrastructure Justice Dipak Misra delivering GU annual public Lecture and drafting legal arguments and comparable to the world’s best.”

THE WATCHDOGS/ cag /parliament rules

BREACH OF a 2012 comptroller and auditor general report exposes how legislatureâ&#x20AC;&#x2122;s authority was ignored by the income tax department while making refunds in crores

HE parliament controls the purse strings of the nation. The budget, presented to parliament annually, enables the government to impose, abolish, remit, alter or regulate any tax, collect tax levied and withdraw money from the Consolidated Fund of India (CFI). There are set procedures to be followed to do this. However, there have been times when parliament is given a cold shoulder, completely in contravention of the constitution. Shockingly, a Comptroller and Auditor General (CAG) report showed that interest refunds amounting to `10,499 crore were made by the Income Tax (IT) department in 2010-2011, and an aggregate refund of `137,365 crore was made between 2006 and 2011 without obtaining parliamentâ&#x20AC;&#x2122;s approval. Apparently, the department had some admin-

June 15, 2014

istrative difficulty in projecting the interest payable on tax refunds. The CAG report was tabled in parliament in 2012. However, this is not tenable as the entire budget is prepared on sound assumptions and placed before parliament. It also has implications for efficiency and transparency in the working of parliament. The CAG report had referred to the Public Accounts Committee (PAC) of parliament, which cross-examined the representative of the IT department. The PAC found no valid reason why the IT department could not make broad estimates of the interest liability on tax refunds based on trends of the past and seek excess grants where estimation fell short of parliamentary authorization. The PAC recommended that the ministry of finance follow prescribed procedure and seek ex-post facto or ex-ante approval of parliament. But to its deep dismay, the IT depart-

CONVENTION ment referred the matter to the attorney general (AG) who did a complete volte face and opined, inter alia, that “refund on excess tax is not expenditure and such outgo cannot be considered with other operational expenses, and interest on refund of excess tax is not seen as expenditure under Article 112(1).” Flummoxed, the PAC issued a notice again to the IT department and decided to orally examine the AG. The PAC reiterated that interest payments on tax refunds must be shown in the annual financial statement or budget. Further, it said that no money shall be withdrawn from the CFI except under appropriation made by law and in the manner provided in the constitution. Incidentally, Rule 8 of the Delegation of Financial Powers Rules, 1978, enumerates categories of expenditure. Along with salaries, medical treatment, etc, ‘interest’ is also classified as expenditure. Interest payments are the second largest component of revenue expenditure. These include payment of interest on public debt, insurance and pension funds, provident funds, reserve funds, deposits, interest on special securities issued to various cen-

tral public enterprises and interest payment on borrowing. Every year, the government approximately incurs 5-7 per cent of the total expenditure on interest payments. PAC’s examination also revealed that from 2000 to 2012, as much as 70-81 percent of the total disbursements for ministries/departments was charged on the CFI and this increased by 948 percent, i.e. from `4,05,289 crore in 2000-2001 to `38,40,960 crore in 2011-12. If such a large amount of expenditure can be charged on the CFI and withdrawn with the approval of parliament, there was no valid reason why the finance ministry should not make budgetary provisions for the expenditure on interest payment on refunds while submitting the Demands for Grants for approval by parliament. For its work, the Constitution Review Commission hailed the PAC as the consciencekeeper of the nation in financial matters. Nothing should be done to dilute the authority or supremacy of parliament. Hopefully, the new government will give due weightage to PAC recommendations to reinstate parliamentary control over the public purse. IL

INDIA LEGAL June 15, 2014

SCHEMES/ rural electrification

A PIPE DREAM FOR INDIAâ&#x20AC;&#x2122;S VILLAGES the rajiv gandhi grameen vidyut yojana was a well-meaning scheme. but a cag report indicts it for faulty implementation DARK REALITIES A village family untouched by modern facilities of life, including electricity

June 15, 2014

t was a scheme meant to electrify India. Instead, it generated tall promises that fell way short of expectations. Though UPA government’s `400 crore, high profile Bharat Nirman media campaign boasted that it had changed the face of rural India by providing electrification under the Rajiv Gandhi Grameen Vidyutikaran Yojana (RGGVY), it turned out to be a chimera. A CAG report tabled in parliament in February had found loopholes in conceptualization and implementation of the scheme. The actual achievements would be

Photos: Anil Shakya

Electricity connections were given to only 52 percent of rural households and for consumption of a single unit daily...enough to light only a 40-watt bulb for a day. less, it alleged, because figures on ‘estimates’ and ‘targets’ were based on “faulty, unreliable data”. According to the report, “against the targeted coverage of 1,23,601 unelectrified villages and 4,12,88,438 rural households, including 2,30,10,265 BPL (Below Poverty Line) households, only 1,04,496 unelectrified villages (84.54 percent) and 2,15,04,430 rural households (52.08 percent) including 1,90,80,115 BPL households (82.92 percent) have been covered by March 31, 2012. Actual achievement would need to be viewed against the fact that the scheme was beset with the problems (unverified, not updated data).” There were flaws in implementing the project as the agencies responsible failed to fully utilize the allocated budgets. The CAG report revealed that the estimated expenditure between 2004 and 2012 by the Ministry of Power (MoP), the nodal agency for implementing the project, was `27,488.56 crore. But it released `26,150.76 crore to the Rural Electrification Corporation (REC) till March 2012. The Project Implementation Agency (PIA), appointed by REC, utilized only `22,510.14 crore till May 20, 2012. A SCHEME GONE AWRY The rural electrification plan was launched in 2005 with a target to reach all villages by 2009. But even after the extension of the dates, the goal is yet to be achieved. On September 2, 2013, MoP issued guidelines for the extension of the scheme into the 12th (2012-17) and 13th (2017-2022) five year plans. Electricity connections have been given to 52 percent of the rural households, but only for consumption of a single unit daily. That can light only a 40-watt bulb for a day. The CAG report was an indictment of this much-publicized scheme. “Despite an implementation approach characterized INDIA LEGAL June 15, 2014

SCHEMES/ rural electrification

health centers, dispensaries, community centers, etc; and (iii) the number of households electrified is at least 10 percent of the total in the village.

POWER BLUES Despite tall claims by UPA 2 that RGGVY is a success, many villages have no electricity connections

by rushed approvals and involvement of numerous stakeholders, the objectives of providing access to electricity to all, giving electricity connection free of cost to every un-electrified BPL and electrifying every un-electrified village habitation by 2009 had not been achieved,” it said. The formulation of the scheme was flawed, as identification of villages and estimation of beneficiaries was based on unreliable data. As per MoP, a village is classified as electrified if it fulfils three conditions: (i) basic infrastructure, such as distribution transformer and distribution lines are provided in the inhabited locality as well as the Dalit basti; (ii) electricity is provided to public places like schools, panchayat offices,

CAG findings: Poor performance Figures of electrification for rural India under the Rajiv Gandhi Grameen Vidyut Yojana

(FIGURES AS OF MARCH 31, 2012)

June 15, 2014

POOR EXECUTION The CAG report said there were instances where guidelines were not followed, such as authenticated BPL lists and rural electrification plans not being in place. RGGVY projects were planned without adequate survey, and detailed project reports were based on old data. “Project implementation was beset with slow execution of work, idle investments, weak monitoring, non-fulfilment of commitments made in agreements, delays in award of contracts and non-handling and overcharging of completed works,” the report said. It laid the blame at the doorstep of contractors, PIA and REC, but said that accountability for this delay was not determined at any level. Due to this, the Liability Damage clause was rendered irrelevant. Ramasamy Murugesan, associate professor, Centre for Rural Infrastructure, National Institute of Rural Development, Hyderabad, agrees with this assessment. “I have travelled to several villagers to study RGGVY and it has not matched up to expectations. In states like Uttar Pradesh and Bihar, the problem is aggravated due to poor infrastructure,” he explains. The scheme was well-meant but ambitious. RGGVY envisioned that various rural agencies would indirectly facilitate power requirement of agriculture and other activities, such as irrigation pump sets, small and medium industries, khadi and village industries, cold chains, healthcare, education and IT. This, it felt, would facilitate overall rural development and lead to employment generation and poverty alleviation. But all that remains a pipe dream. However, with Prime Minister Narendra Modi’s promise that his government will be committed to the poor sections of society, one hopes that the CAG report will be taken up seriously and implemented, and rural electrification will no longer remain a distant dream in India. IL

COLUMN/ corporate fraud

Directors Should Act as Trustees of Shareholders Companies Act, 2013, can lead to better governance because of clauses related to lead director and scrutiny of related-party deals Arpinder Singh, partner and national leader, fraud investigation & dispute services, Ernst & Young India

ndia has been an engine of growth for the global economy, developing at a rapid pace relative to most mature markets. Ernst and Young’s (EY) India Attractiveness Survey 2014 states that the country continues to be one of the top global destinations for foreign investment, driven by the solid domestic market, an educated workforce and competitive labor. But its appeal as a preferred business destination also makes it an attractive target for fraudsters. The last couple of years brought a number of corporate scams under the spotlight—in India as well as globally. Personal financial gains, the illusion of success, shortcuts to earn high returns in a short span of time and increased market pressure to perform better than competitors are some reasons which are driving the increase in the number of cases of fraud. EY’s India Fraud Survey 2012 demystified the typical psyche of fraudsters as young people below the age of 35 leading lavish lifestyles which are not commensurate with their incomes. The survey also revealed that while senior management members of companies were involved in 23 percent of fraud cases in the country, 79 percent of these were involved in major fraud cases by value (with each of these amounting to more than `100 million) due to their positions and their ability to directly influence their companies’ decisions. Over the past several years, the role of independent directors has matured, with their responsibilities going up by several-fold over the years. While they should be independent

from the management and act as the trustees of shareholders, today they are also entrusted with the responsibility of supervising the conduct and strategic affairs of the company. The Companies Act, 2013 augments their purview and accountability, also requiring them to act on behalf of their organizations to report their concerns about unethical behaviour, actual or suspected fraud and any violation of companies’ codes of conduct or ethics policies. We expect that the practice of appointing a lead director will substantially enhance good governance practices.

he Companies Act, 2013 broadens the scope of related-party transactions, which increases transparency when supervising the company’s operations. It also mandates greater scrutiny, disclosure and control of all activities dealing with related-party transactions to be conducted in a fair and diligent manner. With the numerous checks in place by various stakeholders, it will act as a major deterrent to mitigate risks in such cases. The provisions under the new act definitely empower retail and small investors by allowing them to file class action suits. This further increases the accountability that rests on the senior management, making it a key factor in ensuring that the day-to-day operations are carried out in a clear, transparent and ethical manner. The move is also expected to fuel sound governance policies and enhance the quality of financial reporting. IL INDIA LEGAL June 15, 2014

TECH/ online privacy

ENCRYPTION IS THE ANSWER some techniques that you can use to protect computer and smartphone privacy

n the course of writing my book, Dragnet Nation, I tried various strategies to protect my privacy. In this series of book excerpts and adaptations, I distill the lessons from my privacy experiments into tips for readers. Ever since Edward Snowden revealed the inner secrets of the NSA, he has been urging Americans to use encryption to protect themselves from rampant spying. “Encryption does work,” Snowden said, via a remote connection at the SXSW tech conference. “It is a defense against the dark arts for the digital realm.” ProPublica has written about the NSA’s attempts to break encryption, but we don’t know for sure how successful the spy agency has been, and security experts still recommend using these techniques. And besides, who doesn’t want to defend against the dark arts? But getting started with encryption can be daunting. Here are a few techniques that most people can use. Encrypt the data you store. This protects your data from being read by people with access to your computer. Encrypt your hard drive so that if you lose your computer or you get hacked, your information will be safe. Most recent Apple

Silent Circle and Wickr offer apps for encrypted texting on iPhone. On Android, TextSecure app encrypts texts in transit. 68

June 15, 2014

Macintosh computers contain a built-in encryption system called FileVault that is simple to use. Some versions of Microsoft’s Windows 7 also contain a built-in encryption system called BitLocker. Another popular solution is the free, open-source program, TrueCrypt, which can either encrypt individual files or entire partitions of your computer or an external hard drive. Encrypt your smartphone’s hard drive. Yes—your smartphone has a hard drive much like your computer does. In fact, your phone probably contains as much—or more —sensitive information about you as your computer does. Apple doesn’t let you encrypt your smart phone’s hard drive or the files on it, though the operating system will encrypt passwords and some other files if you use a passcode on your device. Apple will also let you encrypt your phone’s backup files on iTunes or iCloud. You can also use Find my iPhone to remotely “wipe”, or delete the data on your iPhone or iPad if it is lost or stolen. Google’s Android operating system lets you encrypt your phone hard drive. Encrypt the data you store in the cloud. I use the SpiderOak encrypted cloud service. If an encrypted cloud service were somehow forced to hand over their servers, your data would still be safe, because it’s encrypted using a key stored only on your computer. However, this also means that if you lose your password, they can’t help you. The encrypted data would be unrecoverable. Encrypt the data you transmit. The Snow-

den revelations have revealed that US and British spy agencies are grabbing as much unencrypted data as they can find as it passes over the Internet. Encrypting your data in transit can protect it against spy agencies, as well as commercial data gatherers. Install HTTPS Everywhere on your Web browser. This encrypts your Web browsing sessions, protecting you from hackers and spy agencies that scoop up unencrypted traffic across the Internet. Not every site works properly with HTTPS Everywhere, though an increasing number do. Use encrypted texting apps with friends who install the same apps on their phones. On the iPhone, Silent Circle and Wickr offer apps for encrypted texting. On Android, the TextSecure app encrypts texts in transit and when they are stored on your device. Use the Off-the-Record Messaging protocol to encrypt your instant messaging conversations. You can still use your favorite instant-messaging service, such as Gchat or AIM, though you’ll need to use a software client that supports the Off-the-Record protocol. On Macs, free software called Adium can enable OTR chats, and on Windows, you can use Pidgin. Once you’ve set up OTR and gone through a simple verification step, you can IM as you usually do. Both parties have to use OTR for the encryption to work. Use Gnu Privacy Guard to encrypt your email conversations. Like OTR, if you’re using GPG you’ll need the people you email with to use it as well in order to encrypt your conversations. I use free software called GPG Tools with Enigmail and Postbox. GPG Tools also works directly with Apple’s builtin Mail program. GPG has some shortcomings—it’s difficult-to-impossible to use it with the mail program built into most smartphones, and you can’t use it easily with webmail like Gmail. (Although there are some new webbased mail programs that use GPG called Mailvelope and StartMail that I haven’t had

Lalit Khitoliya

Even if your computer is lost or hacked, data remains safe, if you encrypt your hard drive. An option is TrueCrypt program. a chance to try yet.) The most difficult part of GPG is that, unlike the encrypted texting and instant messaging programs, you have to generate a secret key and keep it somewhere secure (usually on your computer or on a USB stick). This often means you can only send GPG mail when you have your key with you. Even so, it is incredibly satisfying once you send your first message and watch it transform into a block of numbers and letters when you click “encrypt.” IL

— Julia Angwin is a senior reporter at ProPublica. This article has been published courtesy ProPublica INDIA LEGAL June 15, 2014

GLOBAL TRENDS/ nigeria / fanaticism

Victims of time warp holding on to different views about faith, the radical boko haram group kidnapped over 200 school girls. a month later, the global community is still clueless and helpless By Seema Guha IT is a routine evening in a government school for girls, where students are busy making last-minute revisions for writing their senior secondary certificate examinations. The school is located in Chibok, a remote village in the north-eastern region of Nigeria. The peace is shattered by the crunching wheels of vehiclesâ&#x20AC;&#x201D;a cavalcade of four-wheel drives, motorcycles, and a truck is lined up in front of the school. Heavily armed men in military fatigues, carrying AK 47s, improvised explosive devices and petrol bombs, jump out and break into the building. They make an announcement asking the students to assemble in the central area and board the buses. The children believe they are members of the Nigerian army, although they are shoved into the truck at gunpoint. The terrified girls soon realize that they cannot be the military, as the school is looted of its provisions and burnt down before they leave. A few lucky students manage to hide. The gunmen are in a hurry and head across the arid Sambisia bushes. No one stops the cavalcade. News of the incident reaches Ambusa, the Nigerian capital, a few days later. The incident took place on April 14 and 15 and the shooting and ransacking of shops and establishments in the same area continued till dawn. Over a month later, the daughters of Chibok continued to be held hostage by a fanatical group called Boko Haram. And as the world rallied to offer support in search operations, the group launched more attacksâ&#x20AC;&#x201D;118 people were killed in twin car blasts in Jos on May 20, and 30 people died in attacks on villages near Chibok on May 21.

June 15, 2014

hy has the group unleashed such unprecedented violence in Nigeria? And why has it targetted the girl students? The answer can be found in its name—while “Boko Haram” loosely translates into a group that is against education and influence of western culture, the real name of the outfit is Jama’atu Ahlis Sunna Lidda’awati Wal-Jihad (The Congregation of the People of Tradition for Proselytism and Jihad). The aim of the outfit is creation of an Islamic caliphate. Like many other groups who profess to fight for Islam through a different interpretation of the Quran, it

Porous borders

Boko Haram’s sphere of influence area of camps International borders across which Boko Haram operates Graphics: Anthony Lawrence

THEIR IDEA OF IDEAL STATE (L-R) A shattered car in Jos, where twin blasts killed 118 on May 20; Abubakar, leader of Boko Haram

Getty Images

INDIA LEGAL June 15, 2014

GLOBAL TRENDS/ nigeria / fanaticism

UNITED IN GRIEF (L-R) Former French first lady Valerie Trierweiler stands under a placard that reads “Bring Back our Girls” at a demonstration in Paris; Nigerians come out on streets in protest against the kidnapping; a distraught Rachel Daniel holds up a photograph of her abducted daughter Rose Daniel, as her son Bukar watches helplessly

Photos: UNI

wants to take its followers back to the days when Prophet Mohammad lived and preached. And girls, according to these militants, have no right to education. It is unIslamic and not as per the Quran, says Abubakar Shekau, the Boko Haram chief, who is responsible for turning the group into a violent outfit, targeting Christians and Nigerian security personnel. Muslims suspected of passing on information to the army are also attacked.

n the initial hours after the abduction, the authorities had no idea where the girls had been taken. Frantic searches yielded no results. The assumption was that the girls had been divided into groups and driven out across the border to northern Cameroon, where the militia has a base. Some assumed that the girls may have been driven further on to neighboring Chad. Parents of the children went in groups

Girls, according to these militants, have no right to education, because it is un-Islamic and not as per the teachings of Holy Quran. 72

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in search of the girls into the Sambisia forests, where the militia has a camp. They were unable to locate it. As the distraught village waited for news, regular messages came from the Boko Haram leader. He said the girls had converted to Islam and would be sold as sex slaves, or married off to their abductors. Later, the group released a video showing a few of the girls with heads covered in traditional scarves. This was released through the AFP, the French news agency. Nigeria’s President Goodluck Jonathan was clueless. After criticism from desperate parents and anger among Nigerians, the president agreed to seek global assistance. The US, UK, Israel and Canada sent forces to assist the Nigerian army. British Prime Minister David Cameron called it an “act of evil”, and offered surveillance aircraft and a military team. “The world is coming together not just to combat it but to do everything we can to help the Nigerians find these young girls.” US first lady Michelle Obama, Pakistan’s teenage student Malala Yousafzai, actress Angelina Jolie, and others called for efforts to save the daughters of Chibok. An online petition to save these girls got over two million hits. The incident raised the

Antecedents of Boko Haram Called the Congregation of the People of Tradition for Proselytism and Jihad, which is against western education Formed in 2002 by radical Islamic cleric Mohammad Yusuf Woos supporters due to economic disparity and the tensions between Muslims and Christians Targets Christians and Nigerian security personnel Clashed with the army and police in 2009, which killed 700 followers

same question that bullet attack on Malala in Pakistan had raised—why is it okay for boys to seek education, but not for girls? Nigeria has declared it is willing to negotiate with the captors and release Boko Haram fighters, who are in prisons. Secret negotiations are on but the process is slow. Every day takes a toll on the parents. A rescue operation is difficult, as the lives of over 200 girls are involved. So, the authorities feel that giving in to the demand of the group may be the only option.

oko Haram was formed in 2002 by Mohammad Yusuf, a radical Islamic cleric, in Maiduguri (Borno) in northeastern Nigeria. He built a mosque and a school to propagate the faith. The group started gaining popular support because extra-judicial killings were rampant in the region. People felt alienated and started sending unemployed youths in droves to join Boko Haram. Initially, it was not a violent movement. But, in 2009, the Nigerian government, worried about reports that the outfit was procuring arms, decided to crack down on the militia. This led to clashes between the two.

Almost 700 Boko Haram followers were killed in the army operations. Yusuf was arrested and killed in police custody, further angering his followers. Abubakar, the current leader, was a close aide of Yusuf and took over the radical outfit. The new leader increased the ferocity as well as the frequency of attacks. Boko Haram became an international name when it claimed responsibility for bombing the United Nations headquarters in Abuja, Nigeria’s capital, which killed 23 people. Boko Haram’s sympathizers say it is waging war against corruption. The group’s agitation is against the excesses of the army, which has killed innocents. Economic disparity and the yawning gap between the rich and poor, has compounded the problems in northern Nigeria. This has fed into the tensions between Muslims and Christians, leading to a volatile situation. Like in any other militant-ridden region, the worst sufferers are the ones without guns, like the girls abducted by Boko Haram. Nigeria will need to negotiate skillfully and patiently to make sure that the Chibok daughters return home safely. But how will it deal with fanatics in the long term? IL

Under present leader Abubakar Shekau, turned more violent, launching deadly attacks Claimed responsibility for bombing the United Nations headquarters in Abuja, Nigeria’s capital, which killed 23 people

INDIA LEGAL June 15, 2014

BOOKS/ parsa venkateshwar rao jr

Too Draconian to T be Effective? the new government will have to take up the lokpal’s appointment as a priority. but this extract from the book, lokpal: facts and arguments, questions the naïve beliefs of its champions. excerpts:

he psychological and philosophical underpinning of the Lokpal— is unfortunately a negative one. The legislation is based on a suspicion that there are corrupt functionaries in the governmental system which has to be countered. It is surprising that in a democratic system where rulers are elected or chosen there should be so much of distrust. This is the philosophical problem. The distrust is understandable when the government is an unelected one as in the old monarchical system where one had to find means to make governments responsible and accountable. In the constitutional history of England, King John had to agree to the Magna Carta or the Great Charter presented by the feudal barons in 1215, which is considered and rightly so, as a milestone for the first time the king had to agree to the terms set by his subjects. The feudal camp forced the king to concede at Runnymede that the King’s powers are circumscribed and that lords, prelates and commoners have traditional rights of their own, and these rights cannot be withdrawn or taken away arbitrarily by the ruler. When democracy began to emerge as the political norm, the battle remained to be fought for the inclusion of different segments of society into the polity based on expansion of rights. It took England nearly a century before every citizen had a right to vote. The English are proud of the evolutionary nature of their constitutional history in contrast to the violent conclusions across the English Channel and in other parts of the world. But in other countries, the evolution of political rights followed a different pattern. In the United States of America, which was the first British colony to fight for its independence and succeed as well, the constitutional history was based on a Frenchman’s misunderstanding of the English constitution. Montesquieu, the 18th century French aristocratic philosopher, propounded the theory of the separation of powers, which he thought was the defining feature of the English constitution, where the legislature, the executive and the

THE ORIGINAL CRUSADER Anna Hazare at the height of anti-corruption movement in Delhi

June 15, 2014

judiciary were separate. The American Founding Fathers took to heart Montesquieu’s theory, and they made it the basic structure of their constitution in the form of checks and balances. The legislature will check the executive, and the judiciary will be a check on the legislature by pronouncing whether the laws made by the legislature conformed to the constitution.

he need for Lokpal stems from a justified distrust of governments which wield enormous power, even when they do so in the name of the people. The Lokpal’s European precedent, the ombudsman, is slightly different. When Sweden set up its ombudsman in 1809, it was basically an administrative device to make government efficient and responsive. The Swedish ombudsman—there were two, one for the civil administration and the other for the military—was meant to entertain complaints from citizens. The ombudsman was to submit reports to the parliament. This issue of a watchdog in the government is a curious one. In the Swedish context, it was purely administrative where officials found wanting in their performance of official duties needed to be scrutinized on the basis of citizens’ complaint, and duly penalized. The French had their own answer to the question of wayward and delinquent bureaucrats. French officials could be prosecuted in courts of law for their acts of omission and commission as officials. Known as Driot administrative, it distinguished the acts of someone in his official capacity, and this was kept distinct from the civil and criminal liability in his personal capacity. That is, an official could have committed an error and made a wrong judgment call, but this was done in the discharge of his responsibilities as a government servant. The government has to be made responsible for the wrongful acts of its official. In India, official wrongdoing focuses exclusively on taking bribes, and therefore the Public Grievance Cell and the Vigilance Commissioner are watchdogs to catch a corrupt official. If an official is honest in his personal capacity but does not discharge his responsibilities and duties efficiently, which is one form of maladministration, neither the grievance cell nor the vigilance commissioner will have anything to do with it because they are not designated to

address this issue of an official’s failure as an official, and which causes a lot of distress to its common people. The Lokpal, which has been envisaged as a more efficient grievance cell and vigilance commissioner, remains a watchdog against corruption. If the function of the Lokpal is not to improve the efficiency and therefore the effectiveness of governmental functioning—and that is the basic idea of an ombudsman—it is reduced to a basic policing function inside the government. It will be said that a less corrupt government would be more efficient, but this is only partly true. There could be an honest official who is inefficient and ineffective. While Lokpal activists display deep distrust of people in power, which is almost pathological, they show on the other hand a stunningly naïve belief that a strong law would be able to slay the dragon of corruption wherever and whenever it rears its ugly head. The doubt is hardly entertained that it is possible that a strong law will not be used even if it is at hand and that at other extreme there is the possibility of misusing a strong law either through disproportionate severity or based on sheer bias and aversion. It will be pointed out that excessive philosophical scrutiny of the Lokpal is uncalled for, and that it is meant as a punitive measure to check boundless misgovernance in the form of rampant corruption. It is true that no work will ever get done if too many philosophical questions are raised, and the Lokpal should be seen as a well-though out remedial measure to combat the evil of corruption, which weakens the fabric of government and society. But it is useful to keep in mind the philosophical underpinnings because it is that philosophical understanding of the issue, vague and unstated as it may be, which could be the determining factor as to the kind of Lokpal legislation that one comes up with. The Lokpal law could either be pragmatic or idealistic, effective or draconian, and this really is the outcome of the philosophical biases of the lawmakers. Hazare and his team’s philosophical biases remain fuzzy. They are the gladiators of a social cause and they are not bothered about philosophical issues. But the Jan Lokpal bill they have prepared partially mirrors their philosophical biases if not fully. IL

Lokpal: Facts and Arguments By Parsa Venkateshwar Rao Jr Published by: Har-Anand Publications Private Ltd

Pages: 134 Price: `295

INDIA LEGAL June 15, 2014

IS THAT LEGAL?

Ignorance of law is no excuse. Here are answers to some frequently-asked legal queries Heir shares An 82-year-old Hindu man, who had a share in ancestral property and had also in his own lifetime created his own property, died without making a will. How will his property devolve? In India, the laws on marriage, divorce and succession are applicable as per the religion of the person involved. In the present case, since the deceased is a Hindu, his property will devolve as per the Hindu Succession Act, 1956. The Act divides the relatives in different classes of heirs, and the heirs appearing in class I would have a right in the property over and above the other heirs. Class I heirs are son, daughter, widow and mother and in Illustrations: Aruna

Gender etiquette Due to the new law on sexual harassment at the workplace, even innocuous remarks, for instance, complimenting a female co-worker can land a person in trouble. What are its implications? Let’s make one thing absolutely clear—sexual harassment is defined by the experience of the person who is being sexually harassed and not the intention of the perpetrator. In this scenario, if the person receiving the compliment feels it to be sexually harassing, then he or she is very much entitled to file a complaint. This does not mean that one need not compliment one’s colleague, but one has to exercise caution. There is quite a difference in saying “You are looking good today” and “Your figure looks amazing in this dress!” The best way to deal with issues of sexual harassment is to ensure that the organization has a conducive environment, where one can freely communicate to the other that a particular kind of behavior is simply not acceptable and that the same should not be repeated.

June 15, 2014

case a son or a daughter has passed away earlier than the deceased, then the son, daughter and widow of the predeceased son will also be entitled to a share. This category further includes the son, daughter, widow of a predeceased grandson, which means the great grandchildren in case the intervening generations have also passed away. All the class I heirs have an equal share. Only if there is no one existing in this class of heirs will the next class be eligible. The next category is known as class II heirs and has nine entries. Each entry precludes the other entries from being eligible.

CONSUMER WATCH

News briefs on how buyers can enforce their rights and seek remedial measures Thou shalt not delay! SUBHASH Mahajan and Abhishek Kumar Dwivedi booked a three bedroom flat each in Parsvnath Privilege housing project in Greater Noida in 2007. They paid almost `51 lakh and `56 lakh, respectively, for their homes. According to the agreement, Parsvnath Developers was to give them possession within three years. The agreement also mentioned that if the builder failed to meet the deadline, the buyers would be compensated.

When Mahajan and Dwivedi did not get their flats even after seven years, they lodged a complaint with National Consumer Disputes Redressal Commission (NCDRC. In its recent order, NCDRC asked Parsvnath Developers to return the money with 18 percent interest from the date of booking. The builder was also directed to pay `7 lakh within 90 days to each of the buyers for causing mental torture and `2 lakh as the cost incurred on fighting the case. Illustrations: Amitava Sen

Consumer connect

Caught conning banks

A sleek, trendy mobile phone has become an inthing today. But the nightmare starts when you want after-sales services. Aditya Shah, a resident of Pune, filed a complaint with the District Consumer Dispute Redressal Forum complaining inadequate service and unresponsive behavior by mobile phone manufacturer and service provider. Shah bought a Sony Ericsson cellphone from My Mobile Shoppe in May 2012. Within four months, it developed a fault, and the manufacturer refused to get it repaired or replaced on the ground that the handset was beyond repair due to mishandling by the consumer. The court ordered the company to pay the price of phone, along with compensation for mental harassment. In another case, Nisha Ilame of Pune filed a case against Sony Mobile Service Center for failing to repair or replace her phone within the warranty period. The consumer forum directed Sony Mobile to pay her the purchase amount, besides compensation.

FOR all those consumers who think that they can take consumer forums for granted, they should get their facts right or face the music. Puneâ&#x20AC;&#x2122;s Ghorpadi Peth area resident Noorunnisa Naseer filed a complaint with the District Consumer Disputes Redressal Forum in August 2011 that in August 2010 she had deposited a demand draft (DD) issued by the HDFC Bank worth `30,000 in her Bank of India savings account. She alleged that the amount was not credited to her account, despite repeated follow-ups, after which she filed a case, producing a counterfoil of the slip issued to her. However, both the banks filed their written versions stating that the amount of DD was actually `7,200. The bank officials even submitted the second part of the slip, a photocopy of the original DD showing that the amount of DD was not the same as claimed by the complainant. The forum concluded that it is not possible to have two DDs of the same number with different amounts, so the complainant had filed a false case, which deserved to be punished. â&#x20AC;&#x153;The legislature has established consumer machinery for redressal of consumer grievances. That does not mean they should use this act as a tool and harass service providers. The banks are entitled for compensatory cost of `5,000 each from the complainantâ&#x20AC;?, the forum said in its order.

June 15, 2014

Costly tactics IT is not uncommon for insurance companies to refuse claims. But a consumer forum took a serious note of one such complaint. Delhi resident Harpal Singh filed a complaint with the West Delhi District Consumer Disputes Redressal Forum that his car, which was insured with Tata AIG General Insurance Company, had met with an accident in December 2012. When he approached the firm, he was advised to get his vehicle repaired and file a claim. But when he spent `68,000 to repair the car, he was told by Tata AIG that his policy had been cancelled, as he had paid only `7,100 towards his policy premium, while the actual amount was `7,741. The forum said that even if the full premium had not been paid, the policy could not be cancelled unilaterally, without giving an opportunity to the complainant to pay the balance amount. It stated: “It is not only a deficiency in service but high-headedness of the insurance company that even after receiving premium, the insurance claims are not entertained, and when a customer approaches a forum for redressal of his grievance, his case is dragged seeking adjournments.” The forum directed the insurance company to settle the claim and pay `25,000 as compensation for causing mental harassment to Singh.

Frivolous litigation DELHI resident Lovenish Kumar Bhardwaj had filed a complaint with West Delhi District Consumer Disputes Redressal Forum that he suffered mental harassment and agony, while watching the movie Rockstar in December 2011 at Movie Time Multiplex in Rajouri Garden. Bhardwaj told the forum that after a few minutes of the show, he found that the picture quality was “very corrupt, smoky" and there were pauses in the movie. Later, he approached the forum that he was dissatisfied with the multiplex’s services and demanded a compensation of `50,000. The forum dismissed Bhardwaj's plea, saying he could have left the hall if he didn’t like the film. It said the complainant can’t approach the forum for loss of petty amount spent on a movie ticket if some part of it was unclear.

Chink in forums’ armor DESPITE creditable performance, consumer forums remain severely understaffed across the country. This is one of the reasons why so many cases remain pending before them. The Bombay High Court had to step in and set a September 2, 2014 deadline for the government of Maharashtra to provide sufficient infrastructure and staff to the district consumer forums across the state. Responding to a public interest litigation (PIL) filed by Mumbai Grahak Panchayat, a consumer rights NGO, a division bench

headed by Justice Abhay Oka passed the order. The PIL raised many issues, such as lack of infrastructure, vacant positions of members and presidents of consumer forums and insufficient salaries paid to them. It alleged that out of 40 forums in the state, 19 were dysfunctional. Acting on the directive of the high court, the state government had earlier filled up 30 posts of presidents. However, 10 still remain vacant. Also vacant are 34 posts of members out of a total of 84 in the forums, the PIL pointed out.

Aruna

INDIA LEGAL June 15, 2014

2. Identify the correct spelling. A: Consciontious B: Conscientious C: Conscioncious D:

9. Salim and his wife were married 10 years ago. Today is their ...... anniversary. A: pearl B: crystal C: tin D: ruby

3. Kith and kin, hue and cry but fine and ...... . A: dandy B: foolish C: glad D: flying 4. A ‘hot roller’ is a ......... ........ . A: great gambler B: stolen car C: sexy woman D: successful person 5. Her letter ended with ‘HAND’. What’s that? A: Have a Nice Day B: Have a Naughty Dream C: Have a Night Drink D: Hugs and Nice Dreams 6. What’s “joie de vivre”? A: Just the variety B: Jump the queue C: Joy of life D: Joy of variety

Aruna

7. To rifle is to ...... . A: shoot B: rattle C: kill D: plunder

SCORES

11. If you are a tomboy, they’ll call you a ......... . A: coquette B: minx C: hoyden D: virago 12. They say our new PM is blessed with the “gift of the gab”. A: Gift of the God B: Unexpected gain C: Ability to talk convincingly D: Reward for honesty 13. What does “No joy” mean? A: Unsuccessful B: Unhappy C: Difficult D: No big deal 14. A pogrom is ........... ............ .

A: deafening noise B: organised massacre C: big conference D: utter confusion 15. Which one of these does NOT mean “Thank you”? A: Merci B: Bingo C: Tack D: Gracias 16. Eat like a horse but sleep like a .......... . A: dog B: log C: monster D: rabbit 17. Cyberfreak Salim tinkled “50”. Whom did he call? A: Police B: Father C: Girlfriend D: Friend 18. A person who hates marriage is a ........... . A. misogynist B. bachelor C. misogamist D. divorcee 19. One of the following is NOT a synonym of ‘honest’? A: scrupulous B: veracious C: square-shooter D: slimy 20. Detailed plan of journey. A: Travelogue B: Travelkit C: Itinerary D: Schedule

ANSWERS 14. 15. 16. 17. 18. 19. 20.

organised massacre Bingo log Police misogamist slimy Itinerary

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

10. A pullet is the young one of a ......... . A: hen B: peacock C: pig D: rabbit

8. talk 9. tin 10. hen 11. hoyden 12. Ability to talk convincingly 13. Unsuccessful

have fun with english. get the right answers and play better scrabble

8. Sparrows chirp, crows caw but parrots ...... . A: cackle B: talk C: scream D: chatter

eponym Conscientious dandy stolen car Have A Nice Day Joy of life plunder

WISE

1. A word derived from a person’s name is called ...... . A: namesake B: homonym C: eponym D: nickname

1. 2. 3. 4. 5. 6. 7.

WORDLY

textdoctor2@gmail.com INDIA LEGAL June 15, 2014

PEOPLE / creative expressions

LEST WE FORGET An art installation in Sophia, made up of 400 gas masks, to mark 28th anniversary of Chernobyl nuclear disaster

ABSTRACT AND ELEGANT An art afficionado observes a reclining figure, a sculpture form for which Henry Moore had won world acclaim, at Tate Britain gallery in London

Photos: UNI

SHIFTING SANDS Sand artist Sudarshan Pattnaik mirrors the mood of a changing India through his art, in Puri

OF CREATIVE JUICES Paraguayan artist Koki Ruiz poses in front of his fruit installation in Tanarandy

INDIAN IDOLS After BJP’s victory, these BJP workers are magnanimous enough to display statuettes of leaders of all political hues, in Jaipur

LOOK, THERE’S A FIREBALL! A glass sculpture called “The Sun” by Dale Chihuly installed in London

June 15, 2014