India legal 15 september 2014 by India Legal

NDIA EGAL I L Medical Crimes: Can victims ever get justice?

Baby-killer Sisters: In cold blood

Vanishing Birds: Can laws save them?

September 15, 2014

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STORIES THAT COUNT

CRY ME A RIVER RNI No. UPENG/2007/25763

Postal Regd. No. UP/GBD-197/20134-16

The putrefying Ganges is India’s national disgrace. Can Modi deliver on his campaign promise to revive the world’s holiest river?

ALSO l Who will be hit worst by Court’s Coalgate crackdown? 14 l Doshipura: Shia-Sunni imbroglio 40 l At Last: weeding out antiquated bills 44 l Bribes-for-bank-loans scam surfaces 32 AND Should parents encourage kids to play with tablet APPS? 74

LETTER FROM THE EDITOR

INDERJIT BADHWAR

MAA GANGA WILL TEST MODI’S LEADERSHIP “I thought how lovely and how strange a river is. A river is a river, always there, and yet the water flowing through it is never the same water and is never still. It’s always changing and is always on the move. And over time the river itself changes too. It widens and deepens as it rubs and scours, gnaws and kneads, eats and bores its way through the land. Even the greatest rivers—the Nile and the Ganges, the Yangtze and the Mississippi, the Amazon and the great grey-green greasy Limpopo all set about with fever trees—must have been no more than trickles and flickering streams before they grew into mighty rivers. Do I change like a river, widening and deepening, eddying back on myself sometimes, bursting my banks sometimes when there’s too much water, too much life in me, and sometimes dried up from lack of rain? Will the I that is me grow and widen and deepen? Or will I stagnate and become an arid riverbed? Will I allow people to dam me up and confine me to the wall so that I flow only where they want? Will I allow them to turn me into a canal to use for their own purposes? Or will I make sure I flow freely, coursing my way through the land and ploughing a valley of my own?” ―—Aidan Chambers, This is All: The Pillow Book of Cordelia Kenn

NLY a writer of children’s books like Chambers can so appealingly conjure up the mystery, the majesty, the living force of a river and bring home with such dynamic brutality the reality of how each one of us dies a thousand deaths when we take part in the killing of a river. We do not even know it, but every Indian alive today, and those who lived a generation before us, is guilty of strangling and torturing the river Ganges to death. She is writhing in agony before our very eyes. We are spending money on keeping her lungs gurgling on life support systems, like ICU doctors who put a patient on whom they’ve given up, on a respirator and then wash their hands clean with a detergent.

But like Lady Macbeth we will have the smell of blood on our hands and “all the perfumes of Arabia” would not make our hands smell better. It is not my purpose here to go into the wondrous mythology of the Ganges, the endless verses composed by our rishis, the ecological havoc which hangs over our heads as Maa Ganga dies and dies, choked and poisoned by the effluents of man’s greed and the instinct to plunder. If you are unaware of this, go study it. Ponder it. If you don’t care, maybe you need to read this cover story. Or maybe you don’t. Awareness of the poisoning of the artery that flows through India’s heart and provides succor to the inhabitants of the Indo-Gangetic plain, as she INDIA LEGAL September 15, 2014

LETTER FROM THE EDITOR

journeys tortuously to the Bay of Bengal to merge into the Indian Ocean, is nothing new. She shares her bounty with 40 percent of India’s population—about 500 million souls living in 11 states. Her decline was first noticed in 1854 when the British first built the Haridwar Dam and hastened as we poisoned, despoiled and raped her with the kind of banality that is the ultimate root of all evil. The issue of the environmental desecration of the Ganga, hastened by climate change in which the Gangotri Glacier has been receding for the last 30 years, cannot be repeated often enough for the sad and simple reason that the civilization which she nurtured—and civilizations are known to be born and disappear as rivers vanish or change course—does not see this as an issue. Notwithstanding all the Ganga Bachao movements—Ganga Seva Abhiyanam, Punebased National Women’s Organization (NWO) and Ganga Calling-Save Ganga, supported by Indian Council for Enviro-Legal Action (ICELA)—saving the Ganges is not a national issue. I repeat, I cannot repeat this often enough. As a newsperson, I hold my own profession guilty for not raising the issue ad nauseam, ad infinitum. Ignoring it and, instead, ostrich-like burying our heads into repeat stories on Bebo’s Bollywood love affairs, is not going to make the problem disappear. The subject is on par with drilling climate change problems into our minds—starting with our toddlers, just as we brainwash them on subjects like caste and superstitious bafflegab—or the necessity of combating Aids or the campaign to eliminate smallpox, malaria or TB. We

Gomukh

Gangotri Tehri Devprayag

Rishikesh Haridwar

Garhmukteshwar

Bithoor Kanpur

Allahabad

Patna Varanasi

September 15, 2014

should repeat the Clean Ganga Mantra, as we do the Gayatri Mantra, or Bismillah ir-Rahman ir-Rahim till our heads swim. As penitence, as would probably be decreed by a vengeful god, we should be punished by having our heads dunked into the filthy waters of the Ganges until we choke and gurgle for mercy and be given a breather only under the condition that we will repeatedly be similarly submerged or water boarded (in the lingo of American torturers) unless we join in the awareness campaign to liberate our life-giving river. I admit I indulge in passionate hyperbole. But this is because the only formula for change is revolution, when all reason has fled or been sacrificed at the altar of corruption, waste, fraud and neglect. All these have played a major role in the plunder of the Ganges by the combined forces of the government and industry. The formula for change is simple: Either you’re part of the Ganga problem or you’re part of the solution. There’s no miracle involved here. It requires a tectonic attitudinal mind change; the kind that occurred when Rachel Carson’s book Silent Spring awakened the world to environmental issues, or the political will backed by people power that ultimately led America to clean up the mighty Hudson river, and England, the Thames. Both waters, which had turned into sewers, now bubble with marine life. That is why candidate Narendra Modi was such an attractive choice as PM for many Indians. He elevated reviving and cleaning the Ganges to a national political platform. It was also the demand of his voters in Banaras, the city of the gods, now gone stale with the stench of the river as evening falls on a hot summer afternoon. The disgusting odor drives out the redolence of incense and deafens us to the gently resonant tinkling of the evening aarti. So, Mr Modi allocates another `2,000 crore in his first budget for the Ganga cleanup. Fine! But where’s the passion? Where’s the grand design? Where’s the potent face of the Ganga cleanup as Khanduri was the Murshidabad

Mayapur

Kolkata

visage of Vajpayee’s Golden Quadrilateral highway scheme, and the no-nonsense, goal-oriented Sreedharan was the face of Delhi’s proudest achievement since construction of the Red Fort—the Metro—for which he should have been given the Bharat Ratna? Even if Modi does nothing else in his first term but simply cleans up the Ganges or even a part of it, India will reward him not just with a Bharat Ratna, but the world will see him not only as a great but also grand leader. And he will be able to put the shadow of the 2002 riots behind him. In America, in the 1930s during the Great Depression, President Franklin Roosevelt created brigades of workers nationwide, who were given regular wages to create parks, restore monuments and perform public works. Through these projects, the alienated American youth became stakeholders in the American dream and were able to make a living in a shattered economy. Modi’s thinking on the Ganga is correct. But he must think out-of-the-box. Why can’t he take a page out of Roosevelt’s book and create paid brigades of youth workers, including unemployed Muslim youths (Governor Jagmohan did this successfully in Kashmir’s Srinagar when he cleaned up the dying Dal Lake) and create Clean Ganga Brigades under a special dispensation headed by a honest figure? As a measure of demonstrating the new regime’s commitment to accountability, Modi should also set up a special inquiry commission with a time-bound period to investigate why the `20,000 crore already spent by previous regimes on the Ganga Action Plan produced no result, who siphoned off the money, and track down the fraud and mismanagement and recommend prosecution of the guilty. That’s what leadership is all about, and the people expect nothing less than that from Modi and they will back him as he brings the Ganges back into national focus. Cleaning up the Ganges symbolizes everything to be destroyed: Poverty, filth, human degradation, sloth, corruption, communal passions. And there is a lot to be preserved: poetry, philosophy, universities, artists, singers, loud raucous laughter, rock-hewn temples, countless masjids, from where muezzins call out above the ring of rickshaw bells, and the morning and evening aartis—cling-cling-ding-ding-clap-clap. (The lead story that appears on page 20 is writer Rashme Sehgal’s live follow-up report on whether current schemes to clean the Ganges under the new budgetary allocation will work)

editor@indialegalonline.com INDIA LEGAL September 15, 2014

SEPTEMBER 15, 2014 VOLUME. VII

ISSUE. 25

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

LEAD

The Ganga disgrace

For centuries, the Ganges purified us of our sins, while we discharged our filth into it. Now, with Narendra Modi making the river cleaning his government’s top priority, RASHME SEHGAL probes if it’s a case of too little, too late

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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September 15, 2014

OPINIONS

Legal fraternity joins the issue

VIKAS SINGH, Former Additional Solicitor General, and SHAILENDRA SINGH, senior advocate, Supreme Court, provide their perspectives on the scrapping of the collegium system SUPREME COURT

Power sources plugged off

With the Supreme Court declaring all coal block allocations since 1993 illegal, the Indian economy is sure to take a hit, writes VISHWAS KUMAR RIGHTS

Patients’ agony, doctors’ apathy Despite numerous cases of negligence, why do medical professionals enjoy a certain degree of legal immunity? AKSHAT AGARWAL points out the changes that are required in the legal framework. Also, a case study on the landmark case of Dr Kunal Saha, who won `6-crore compensation

CRIME

Banks and bribedom

The arrest of Syndicate Bank CMD and Bhushan Steel owner exposes the nexus between big corporate houses and public sector banks in procuring large loans, which, in many cases, are never paid back. A report by VISHWAS KUMAR CONTROVERSY

Grave matters

Two Kolhapur sisters, sentenced to death for killing several toddlers, could become the first women in independent India to be hanged. RITU GOYAL HARISH writes that a psychological study should be done of such criminals to assist in crime prevention

The conflict between Shias and Sunnis is being played out in Varanasi too, over a few plots of land. AJAY AGARWAL describes the political implications of the strife

Animal instincts

MY SPACE

RAMESH MENON decries the negligence, which has endangered the existence of our winged friends

Grounding pilots’ flight

DGCA’s new rule of six-month notice period severely hampers pilots’ career. SHOBHA JOHN writes that a similarly strict approach is required to rein in airlines who don’t pay their staff for months

REGULARS

A staggering 300 antiquated laws are set to be weeded out, some of them as old as 150 years. ANITA KATYAL reports FOCUS

A small-town boy’s rise as a brain scientist...............66

Sania Mirza’s current great form...............................68 The US’ questionable human rights record......70 Rape cases on American campuses......................72

MANYATA DUTT, wife of Sanjay Dutt, writes that her husband’s incarceration has, for the first time, opened another dimension to life

Birds on the brink The big clean-up operation

Justice BS Chauhan’s land-acquiring spree......48 A transport scam that never was.......................51

New meaning to freedom

PHOTO ESSAY

GOVERNANCE

ALSO

60 Toddlers’ addiction to tablet apps....................74

Letter from the Editor …............ .........................................................3 Letters…..............................................................................................8 Quote-Unquote ...............… ................................................................9 Ringside ..........................… ..............................................................10 Supreme Court..................................................................................16 Courts................................................................................................18 Briefs .................................................................................................77 Consumer Corner..............................................................................78 Is That Legal?....................................................................................80 Wordly-wise .......................................................................................81 People ...............................................................................................82 Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA

INDIA LEGAL September 15, 2014

LETTERS A sham effort The battle between the executive and the judiciary (War over Judges, August 31, 2014) is nothing new. It has been going on ever since Indira Gandhi was the prime minister. She rode roughshod over all fair procedures and planted her own favorites. The collegium period was only a hiatus when the judges practised the same. Now, it is the center which is trying to get back its hold over appointments and transfer of judges. I am doubtful whether we will get to see meritorious and scrupulous judges Mohini Mathur, Delhi

Interpreting the law Merely bringing in the new juvenile bill (What is the Age of Innocence, August 31, 2014) will not solve the problem. Lowering the age for juveniles to be treated as adults for heinous crimes will put enormous pressure on the judiciary dealing with cases, where children between 16 and 18 years are involved. It canâ&#x20AC;&#x2122;t simply go by the law book, but will have to tread with caution while convicting them. Reasons for the crime, social background and mental state of the accused, etc, will need to be considered as well before the judgment. The new law will have to stand the test of time. Saswati Sengputa, Kolkata

Warning signals Those who swear by Narendra Modiâ&#x20AC;&#x2122;s charisma (Silent PM, August 31, 2014) should take a leaf or two from the recent outcome of assembly bypolls in Bihar, Karnataka, Madhya Pradesh and Punjab. The results have been less than impressive for the BJP, whose political fortunes are being steered by Modi. Yes, local factors do play a role in assembly elections, but one thing is clear: the Indian electorate is looking for other options if they look credible. The UP by-elections in 11 assembly constituencies should clear the air. Raj Shekhar, Gurgaon

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September 15, 2014

A lax executive The entire slugfest between the judiciary and the executive over death sentences is due to the inordinate delay by the president of India in deciding on mercy petitions (Lord, Have Mercy, August 2014). This excessive delay has given a handle to death convicts to approach the Supreme Court and seek commutation to life sentence. The case of Renuka Shinde and Seema Gavit is another example. Ranjana Thakur, Meerut

A handy tool I enjoyed reading the story, Cybermentary! My Dear Watson in the August 31, 2014, issue. Sleuths and lawyers need to be techno-savvy to cull out unsavory email exchanges. I would myself take help of the software tool, Systools MailXaminer, for unearthing email information in case of data leak in my office. Thanks for keeping me updated. Ramesh Khanna, Mumbai

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

QUOTE-UNQUOTE

“It is not easier to do mass entertainers. In fact, at some level, playing to the gallery is more difficult because there is less conviction in the character.” —Ajay Devgn, reacting to the impression that he has increasingly moved into commercial cinema in the last five years. Sunday Express

“By killing transparency and competition, crony capitalism is harmful to free enterprise, opportunity and economic growth.” —RBI Governor Raghuram Rajan, on crony capitalism, reported by The Economic Times

“I would be delighted if he could show me what industrial development projects I missed while driving through Rajarhat.” —Ratan Tata, on West Bengal finance minister Amit Mitra’s comment that he was not being properly briefed about development in the state. Business Standard

“No other person has won so many medals at the World Championships or at other international events. Women’s boxing in India got popular because of me.” —Boxer Mary Kom, miffed at not being informed about the last minute postponement of Asian Games trials in Patiala. International Business Times

“Neither will I take bribe nor will I allow anyone else to take bribe.” —Prime Minister Narendra Modi, on corruption during his Jammu and Kashmir tour. Jagran Post

"I blame the BCCI for creating the IPL monster and pushing their cricketers towards money rather than getting them to think about their technique. I can't see any Gavaskars, Vengsarkars, Azharuddins or Tendulkars being produced by India." —Arjuna Ranatunga, former captain of Sri Lanka, on India's series defeat in England. NDTV Sports

“The RJs should ensure their language and content is not objectionable. Those of us who are sitting inside the house should be respected…”

“I played a big part in it. I have corrupted the youth, audience, and Bollywood!” —Emraan Hashmi, on making kissing a usual affair in Bollywood. Delhi Times

—Samajwadi Party MP Jaya Bachchan, on radio jockeys making fun of MPs, India Today

INDIA LEGAL September 15, 2014

VERDICT “The man who passes the sentence should swing the sword. If you would take a man’s life, you owe it to him to look into his eyes and hear his final words. And if you cannot bear to do that, then perhaps the man does not deserve to die.” ― George RR Martin, A Game of Thrones

September 15, 2014

COLUMN/ judicial appointments/shailendra singh

Here’s the

LOWDOWN O

UT of chaos comes order. The recent passing of the Judicial Appointments Bill 2014 in parliament was one such upheaval. But why did it evoke such strong passions? What did it replace? Here is a lowdown on the issue. The bill replaced the collegium system for appointment of judges to the higher judiciary. The collegium system had a fivemember committee, which included the chief justice of India (CJI) and four seniormost judges of the Supreme Court (SC). However, it had no constitutional validity. The system has been full of controversy and criticized by the executive as it vests too much power with the judiciary. Senior judges are appointed by the collegium and the executive can only ask it to reconsider a recommendation. It also received a lot of flak for its vagueness and unaccountability and charged with nepotism as critics felt it ignored meritorious candidates. Some of its critics included the Law Commission of India chairman, Justice AP Shah, and senior Supreme Court lawyer Harish Salve. However, CJI RM Lodha said he was the first batch of judges from the system while Justice Nariman was the last. “If the collegium has failed, then its products (the judges) too are failures and the judiciary as a whole has failed the country,”

Whatever the brouhaha over the collegium system, the new judicial appointments commission will have to prove its efficacy

Lodha retorted. “As an institution, the collegium had its limitations in selecting persons. After all, judges too come from the same society. But to carry on a campaign just because of allegations against one or two judges is unfair,” he stated. What does the constitution say about it? Article 124 says that the president has the right to appoint Supreme Court judges after consulting with the CJI and other SC judges. Similarly, Article 217 says the president has the right to appoint high court judges after consultation with the CJI and the governor of the state. But various governments wanted to do away with the collegium system. Finally, the Judicial Appointments Bill was passed in parliament. According to the bill, a six-member Judicial Appointments Commission will recommend the president on the appointment and transfer of judges. These include the CJI, the law and justice minister, two seniormost judges of SC and two eminent persons. Critics, however, say there is greater scope for politicians to interfere in judicial appointments now. This will compromise the entire judicial delivery system. One hopes fair play and justice will prevail. IL

— The author is an advocate in Supreme Court and Delhi High Court

UNI

September 15, 2014

RAJEEV TYAGI

COLUMN/ judicial appointments/vikas singh

Not all is bad with

COLLEGIUM while the judges-appointing-judges system has belied expectations, scrapping it is not the answer

HIS is a crucial juncture for the Indian judiciary, when the present executive is keen to do away with the collegium system by bringing in the National Judicial Appointments Commission Bill 2014. The basis for bringing in the bill is the widely-held perception that the collegium system has failed. While I also feel the collegium system has not lived up to the expectations of the people of this country, replacing it with the National Judicial Appointments Commission Bill is not an answer. As the head of the Indian judicial family, the chief justice of India can take certain important pre-emptive steps, which will completely thwart the initiative of the government to abolish the collegium system. The need of the hour is to understand whether the collegium system is the right one or not and then separately consider the reason why it has failed in India. In my view, the system is perfect for the independence of the Indian judiciary but the way it is being operated at the moment leaves a lot to be desired. Urgent steps are required to be taken to ensure the proper working of the existing system. In my view, the shortcomings of the present system are: (1) lack of credibility in the shortlisting of candidates; (2) lack of objectivity in making a comparative analysis; (3) bias or nepotism in the actual selection; and (4) delay in filling up the vacancies. According to me, immediate steps need to be taken in the appointment of judges to the higher judiciary, and these, inter alia, should ensure the system meets the aspirations of the people of India and is able to thwart criticism from any quarter. The collegium at the high court should invite names from the bar associations as well as from the state government. The collegium should provide for certain basic eligibility criteria like the minimum age, minimum return of income, etc. for any person to be considered for appointment as a judge of the high court.

All the names before the collegium should be referred to a select panel of two eminent lawyers of the said high court who shall rate the names on the question of integrity as well as professional competence and any other criteria which may be required by the said panel to rate the names. If the direct junior or a relative of any of the member of the collegium is on the list being considered for appointment, the said member of the collegium should be asked to recuse himself and the next junior judge should be opted by the collegium. The collegium should consider each and every name before it and then decide the most suitable for appointment as a judge of the high court. The system should provide that for any vacancy that is to come up in the next three months, the collegium should recommend the names at least two months in advance so that the notification for such appointment is ready on the date of the retirement of the judge and there is no vacancy of any judge in any high court for even a single day. In so far as the promotion from the lower judiciary is concerned, there should be no quota fixed for them and the collegium should appoint only such persons who meet the basic benchmark as fixed by the collegium for appointment as a judge of the high court. Seniority amongst the additional judges should be a criterion for elevation to the high court but it should have very little weightage in the appointment.

s far as appointment to the Supreme Court is concerned, the five-judge collegium of the apex court should also take assistance of an eminent lawyersâ&#x20AC;&#x2122; panel constituted by it to consider the names of the judges of the high court as well as the name of any member of the Bar by rating the candidates on such criteria as the collegium system would want the panel to so rate them. In the appointment to the Supreme Court, regional representation should only be a guiding factor for appointment and merit and unimpeachable integrity should be the main criteria for appointment to the highest court of the land. According to me, immediate steps should be taken by the Supreme Court to reinvent the collegium system. This will help restore the faith of the people of this country in the system. The initiative will also ensure there is no attempt by the government to interfere in the matter of appointment of judges. I strongly feel that adding the law minister in the collegium system is only going to worsen things. I have a lot of expectations from the present Chief Justice of India RM Lodha. In his short tenure, he has been able to send the message across about maintaining the independence of the judiciary, much more strongly. IL

â&#x20AC;&#x201D;The author is a senior advocate of Supreme Court and former additional solicitor general of India INDIA LEGAL September 15, 2014

SUPREME COURT/ coal allocations

Digging the dirt

will the sc’s decision declaring all allocations between 1993 and 2010 illegal deal a body blow to the economy?

By Vishwas Kumar 14

September 15, 2014

RIME Minister Narendra Modi faced his first major economic challenge on August 25. That’s when the Supreme Court (SC) declared all coal block allocations made by the government of India (GOI) between 1993 and 2010 illegal. This will have major ramifications on coal supply, vital for the production of power and steel, needed for a resurgent economy. A bench, comprising Chief Justice RM Lodha, Justices Madan Lokur and Kurian Joseph, said it would appoint a high-level committee of retired judges to identify those companies who would be affected by its order. On its next hearing on September 1, 2014, the bench will create a committee to identify those whose allocations will be cancelled. It will also address the route through which these allocations may be made in future. The SC said: “All (coal) allocations were done in an illegal manner and suffer from the vice of arbitrariness.” It added that no objective criteria were followed

Hot Potato THERE will be many nervous people on September 15. That’s when former CAG Vinod Rai’s new book Not Just an Accountant is scheduled for release. It is touted to be the “mother of all tell-tale books” and would acutely embarrass former PM, Dr Manmohan Singh. CAG’s audit reports on the 2G spectrum scam (`1.76 lakh crore) and the coal scam (`1.86 lakh crore), were dubbed by opposition political parties, including the BJP, as the “mother of all scams”. Both scams occurred during the 10 year rule of the Congress-led UPA government. Rai’s book has alleged that UPA functionaries deputed politicians to get him to leave out names from the auditor’s reports on Coalgate and Commonwealth Games scams. Rai did not reveal the names of the delegates. But according to BJP leader Subramanian Swamy, the four persons whose names were not included in the CAG report are: Congress Chief Sonia Gandhi’s political aide Ahmed Patel, Congress treasurer Motilal Vora, Singh’s principal secretary Pulok Chatterjee and advisor TKA Nair.

and guidelines were breached in these allocations. “The coal block allocation done by a screening committee was not fair and transparent,” it added. All allocations, done in all 35 meetings of the committee, were ad hoc, casual and hence, unfair, it said. While 194 allocations were made through the screening committee, 36 went through the government dispensation route. These coal blocks were allotted to private companies, mainly in Jharkhand, Chhattisgarh, Maharashtra, West Bengal, Odisha and Madhya Pradesh. HUMUNGOUS LOSS Incidentally, the scam came to light when the Comptroller and Auditor General (CAG) tabled a report in parliament in 2012, which said the government’s decision to not auction 194 coal blocks resulted in a huge loss to the

Rai told a news channel: “The book will have details of how the ex-PM succumbed to what he himself once described as ‘compulsions of coalition politics’. Everything cannot be sacrificed only to remain in power. Governance cannot be sacrificed at the altar of compulsion of coalition politics.” For Singh, this couldn’t have come at a worse time. Already, two books have been critical of Singh’s leadership—one by his media advisor, Sanjaya Baru, and the other by ex-coal secretary, PC Parakh. Both books are already bestsellers. Congressmen are playing down Rai’s allegations. Former I&B minister Manish Tewari termed his remarks as the “latest bout of his sensationalism” and told a channel that “sensationalism has been a staple of the former CAG.” He also questioned why Rai did not bring these allegations to public notice while he was in office and dared him to an open debate on the Coalgate and Commonwealth scams. The BJP, on the other hand, wants Rai to disclose the name of UPA politicians who asked him to tamper with the Coalgate reports.

public exchequer. At first, the loss was pegged at `10 lakh crore, but was brought down to `1.86 lakh crore. While competitive bidding for coal blocks was recommended in 2004, the government never used this route and instead allocated the blocks through recommendations made by state governments and politicians to a screening committee. Many companies got undue benefits due to coal blocks allocated to them for captive use. Of the 194 blocks allotted, in 15, private players did not even start production till 2011. The CAG report mentions various companies which benefited from allocations without bidding during 2004-2006: Tatas, Jindals, Essar, Abhijeet, Laxmi Mittal’s Arcelor and Vedanta. The number of people who had their hands in the till is truly shocking. IL INDIA LEGAL September 15, 2014

SUPREME COURT

New law for cheque-bouncing

Illustrations: Aruna

Batting for Hindi

t has been 67 years since India attained freedom from the British yoke, but English remains the official language for all proceedings in the higher judiciary. In fact, Article 348 of the constitution mandates so. A PIL sought that the Supreme Court ask the center to make changes in Article 348 so that Hindi—the “rashtra bhasha”—becomes the official language for all the proceedings in the apex court and high courts. It said that the British legacy should be done away with. The apex court, while taking up the petition, asked the center to respond on the issue.

September 15, 2014

ragging a person to court for the offense of cheque bouncing will now be an onerous task, as the Supreme Court has altered the basic rule under Section 138 of the Negotiable Instruments Act. Henceforth, a case for cheque bouncing due to inadequate funds must be initiated only at the place of the drawee bank branch. It may not be too difficult for a person to start prosecution at the bank branch of the place where he stays, but the process will entail considerable time and money for someone who receives a cheque from a distant place, and it gets bounced. Already lakhs of cheque bouncing cases have piled up in courts, and the new law will lead to mass inter-state transfer of such cases. Aware that the judgment will create problems, a three-judge bench of the apex court said that the new law will not apply to cases where summons have already been issued to the accused and recording of evidence has begun.

Call for tobacco ban

ven as the Modi government mulls over bringing in more stringent legal provisions to curb tobacco consumption, a PIL in the Supreme Court pointed out that an amount of `30,000 crore was spent annually on curing illnesses from tobacco use. Arguing that the money squandered was around 25 percent of the country’s public health spending, the petition sought a total ban on cigarettes and beedis and wanted harsher punishment for smokers. It also cited a spike in deaths related to tobacco. When the three-judge bench said the onus lay on the legislature to frame laws against tobacco consumption, the counsel for the petitioner reminded that it was only after an apex court order in 2001 that parliament had passed the Cigarettes and Other Tobacco Products Act in 2003, putting restrictions on tobacco products. But the act wasn’t implemented properly, the PIL said. The bench asked the center and the states to respond to the PIL.

Questioning unto itself

In favour of Gujarat EXPRESSING total confidence in the Gujarat government’s ability to provide justice, the Supreme Court dismissed a PIL filed by suspended IAS officer Pradeep Sharma, seeking transfer of cases against him from the Gujarat police to the CBI. The counsel for Sharma alleged that the state government was victimizing his client as his elder brother, a senior Gujarat cadre IPS officer, did not kowtow to the state government’s line in several cases. The Gujarat government had charged Sharma for financial bungling and started a probe. He was also slapped criminal charges in 2008 for his complicity in a land scam. The apex court found no basis in Sharma’s contention and refused to intervene. It also rejected his appeal for a probe against the Gujarat government for keeping him and a lady under surveillance in the Snoopgate controversy.

Congress gets reprieve on funding

he apex court takes up an avalanche of petitions from different parties every day, but what if it has to look into a PIL requesting that the SC look into its own rule book? The Supreme Court Bar Association (SCBA) appealed to the apex court that the New Supreme Court Rules, 2013, should not be implemented with effect from August 19 as it was not consulted while framing them. It wanted the court to enter into an “effective and “meaningful” discussion with the SCBA. It also pointed out that some changes in the Supreme Court Rules, 1966, had taken away the fundamental rights of the SCBA. The rules should not be enforced till the outcome of the petition, SCBA said. A two-judge bench deferred the hearing for September 5.

EVEN as the Congress is trying to get its house in order after the Lok Sabha defeat, the foreign funding issue in the elections haunts it. The party’s plea against the Delhi High Court judgment holding the Congress and BJP prima facie guilty of flouting laws under Foreign Contribution (Regulation) Act (FCRA) was rejected by the apex court. The Supreme Court instead issued notice to the center and the election commission to respond to the matter within eight weeks after observing that FCRA needed to be interpreted properly. The only respite for the Congress: It could approach the apex court in case any coercive action was taken following the high court order. The Congress and BJP were pronounced guilty by the Delhi High Court on March 28 for receiving donations from the subsidiaries of the UK-based Vedanta Resources Plc.

Right to abort THIS is an issue that has tormented would-be mothers in India for years, thanks to an archaic law. But now there is hope, as the Supreme Court has decided to look into the issue. A PIL filed in the apex court condemned the Medical Termination of Pregnancy (MTP) Act, 1971, for imposing a 20-week cap on abortion and said that it infringed upon the rights to equality, health and life of women. The PIL wanted the legal limit for abortion increased to 28 weeks. It clarified that with rapid advances in medical science, the foetus could be removed at any stage without threat to a pregnant mother’s health. The court referred the matter to the center, enquiring if any fundamental law was being breached by carrying out MTP, and listed the final hearing for November.

INDIA LEGAL September 15, 2014

COURTS

Where is your duty? Justice served after 38 years

alk about being ungrateful. In a poignant case, the Allahabad High Court pulled up a woman for not looking after her sister and mother after her father’s death, despite the government helping her out in her time of need. It all started on November 24, 2005, when the father of the girls died in harness while working for a power corporation. On compassionate grounds, one of the sisters was given a job there in 2006. She later married and started living separately and conveniently forgot her widowed mother and her unmarried, unemployed sister. This, despite Uttar Pradesh recruitment rules of 1974 saying: “It is incumbent upon the person being appointed under the dying in harness rules to maintain the other family members, failing which such person can be preceded under the UP Government Servant (Discipline and Appeal) Rules 1999.” The rules clearly state that such a person’s services can be terminated. This sister then filed a counter affidavit, stating that she was prepared to maintain the petitioners (mother and sister), but as she had two minor children, it would not be possible to pay 50 percent of her wages, as she was a Class-IV employee. But in a verdict proclaimed by Justice Suneet Kumar on August 8, 2014, she was told in clear terms that the job was given to enable the family of the deceased employee to tide over the sudden crisis resulting from the death of the bread-earner. “Such appointments are made purely on humanitarian consideration... it is not a source of recruitment,” the court said. The court ruled that a monthly sum of `5,000 would be paid to the mother from this sister’s salary.

September 15, 2014

he Delhi High Court convicted two Anand Margis and upheld their 10-year jail term for a 1975 assassination attempt on the then Chief Justice of India (CJI) AN Ray. Santosh Anand Avdhoot and Sudevanand Avdhoot were convicted 38 years after the criminal appeals were filed in the court. However, Rajan Dwivedi, the third convict, who was charged with conspiring with the two to kill the CJI, was set free. Appeal against the trial court’s judgment was filed in the high court in 1976 but the hearing commenced only in 2006, after a lapse of three decades.

Illustrations: Aruna

Court advocates women’s right

n a crucial move to empower women, a full bench of the Bombay High Court (HC) held that daughters were entitled to equal rights in ancestral property. Previously, the Hindu Succession Act of 1956 did not give equal rights in ancestral property to daughters. This changed, when Section 6 of the act was amended in September 2005. According to the amendment, only daughters born after September 9 , 2005, were entitled to the rights. However, the HC dismissed the dispute of daughters being born before or after the aforesaid date and said, their being alive to claim the right was more important.

LEAD/ polluted ganga

A morbid river runs through it the modi government has shown intent in cleaning up and conserving the river a with high budgetary allocation. but is it too little too late? By Rashme Sehgal in Varanasi

September 15, 2014

anga, India’s holiest river, is the recipient of financial munificence from the NDA government. When the BJP prime ministerial candidate Narendra Modi said in May: “Ma Ganga aur Benaras se mera rishta purana hai,” little did the inhabitants of Varanasi realize how much the government’s purse strings would be opened to save the river. But `20,000 crore has already been spent on various clean-up projects of the river, with little to show for it. Further, in this budget, finance minister Arun Jaitley set aside over `2,000 crore to help set up the Integrated Ganga Conservation Mission, called ‘Namai Gange’. Another `100 crore has been allocated for developing ghats and beautifying the riverfront in a slew of cities, including Kedarnath, Haridwar, Kanpur, Varanasi, Allahabad and Patna. And under the Clean Ganga Mission, six new sewage treatment plants will come up

in Allahabad (Uttar Pradesh), Beur, Karmalichak and Saidpur (Bihar) and Budge Budge and Barrackpore (West Bengal) at a whopping cost of `1,058 crore. DEADLY COCKTAIL But would this amount be enough to clean the highly polluted and noxious river? Experts say it is just a drop in the ocean. According to a 2013 Central Pollution Control Board (CPCB) report, the amount of sewage deposited in the river is 2,723 million liters per day (mld). Some experts claim it is actually 5,000 mld. Combine this with over 800 polluting industries—tanneries, sugar, pulp, paper and chemicals—which spew toxic effluents into the river and what you get is a deadly cocktail of poison, stretching all the way from Gaumukh to the Bay of Bengal. So, how will the Ganga be cleaned? Manoj Misra of the Yamuna Jiye Abhiyaan along with other environmentalists put together five key points to help restore the river to its original glory. Misra says: “The river and

TALL ORDER The task of cleaning up the Ganga is daunting and the government will face myriad and complex issues once it gets on to the job

INDIA LEGAL September 15, 2014

LEAD/ polluted ganga

sewer must never meet. Modi needs to ensure that water withdrawn from the river should never go back into it. Ganga’s tributaries need to be given equal importance.” Environmental lawyer Ritwick Datta has called for the creation of a river regulation zone, along the lines of a coastal regulation zone, to help end encroachments along the river bank. Professor Vikram Soni of Jamia Millia Islamia says Modi needs to come up with a strong legislation to ensure that industrial units do not discharge effluents into the river. “Effluents must be brought to second recycling levels before flowing into the river,” he maintains. Dr BD Tripathi, environmental scientist at the Benaras Hindu University (BHU) and a member of the National Ganga River Basin Authority, believes that efforts will bear fruit only if the river’s ecological flow is maintained. “But how can this be done when a huge quantum of water is being diverted for irrigation, thereby reducing the Ganga to a

trickle? In Varanasi alone, a large numbers of houses and parks are being developed along the river bank—from Rajghat to Ramnager and up to Assi Ghat—reducing the width to half its size. Moreover, dams have reduced the water flow,” he laments. WATER FIT FOR DEATH The water quality of the Ganga is extremely bad. Varanasi-based Dr Hemant Gupta, a gastroenterologist and endoscopist, revealed that patients are spending up to `15,000 a day on medicines but are still to be cured. “A number of diseases have been triggered off by drinking impure water. If this is not the equivalent of a super bug, then what is? But when I went public with this disclosure, medical authorities denied it,” he claims. Gupta, along with Panchganga Foundation, a group of Varanasi citizens working to revive the Ganga and its tributaries, tested the water recently at 18 ghats. The study threw up shocking impurity levels: the bacterial count

‘Quacks, not doctors, spoiled Ganga project’ How should the Ganga be cleaned? That is the question vexing eight IITs, which have prepared a comprehensive Ganga River Basin Management Plan, and river engineers led by Professor UK Choudhary, the head of the MM Institute of Technology for Ganga Management. Opposed to the center’s decision to hand over the management of Ganga to IITs, Choudhary says his institute is better equipped. Excerpts from an interview with Rashme Sehgal: Are Ganga’s problems intractable? We have to understand the river in a holistic manner. It emanates from the Himalayas, which comprise largely of sedimentary rocks. These are inherently weak and only suitable for constructing micro-dams. Construction of large dams has seen a direct increase in landslides and I have been warning successive governments about this. Also, the larger the landslides, the more impure the water quality becomes.

September 15, 2014

Does that mean water in Tehri Dam, which provides drinking water to large parts of Uttarakhand and NCR, is not pure? In Tehri Dam, the storage of dead water is 400 meters, while live storage is 200 meters. Water in the lower portion of the reservoir, which does not get circulated, is known as dead storage. Both organic and inorganic matter gets deposited here. The ions of these elements increase water density, resulting in contamination of the

reservoir. This also causes a tremendous increase in pressure. This impure water creates major drinking water problems for villagers living downstream. What is the relationship between large dams and landslides? When the reservoir in large dams is full, voids in the rock are saturated with water. When water is released by the dam, water inside the pores comes out with increasing pressure. In the Uttarakhand floods of 2013, heavy landslides enhanced the drag forces, which in turn increased water velocity. Micro-dams are the right solution. They help generate 3,000 MW of electricity, apart from ensuring regular flow in the river. So the situation in the river has been steadily deteriorating? It is a dying river and we are to blame for it. BOD (Biochemical Oxygen Demand) levels have gone up from 5-8 million liters in 1985 to the present 12-15 million liters and the oxygen content has come down from 7 million liters to 4 million liters. Not a single person from the river engineering side has been consulted regarding work being done on the Himalayan rivers. `20,000 crore has been

CORE ISSUE Dams along the Ganga in the hilly regions have led to landslides and polluted the river

at Shivala Ghat was 6.75 lakh/100 million liters, at Chowki Ghat it was 8.7 lakh/100 million liters, at Trilochan Ghat it was 8.5 lakh/ 100 million liters, while at Dasaswamedh Ghat it was 6.71 lakh/100 million liters. The scenario was worst at Kanpur, with bacterial levels in its ghats ranging from 12-14 lakh/100 million liters. “The pathogenic micro-organisms found in the river included strains of aeromonas, salmonella and shigella sonnei. Other bacteria included E-coli, citrobacter, klebsiella, proteus, providential and enterobacter. These were even showing multi-drug resistance, a dangerous sign,” warns Gupta. These bacteria can cause various diseases, such as septicemia, meningitis, fever, kidney complications, to name a few. Even the tributaries of the Ganga are polluted. Studies conducted by Pantnagar University highlight the rapid deterioration of ground and surface water in Ramganga and other tributaries after SEZs were set up in

UNI

spent on the Ganga project by people who are little more than quacks. IIT engineers only know how to deal with static water bodies as opposed to dynamic water bodies. River engineers understand the origins of a river, its function in the mountains, why its quality is deteriorating.... They understand the kind of action and reaction that takes place between water, rocks and air; how atmosphere, temperature and pressure along with rainfall are getting affected by dams. The environmental conditions in these areas have been altered and yet, none of the reports brought out by IITs highlight these factors.

We are presently withdrawing 10,400 cumex (cubic feet per second) of water from the river. While 6,200 cumex is being withdrawn from the western Ganga, 420 cumex of drinking water is being supplied to Delhi. When I was a member of the Tehri Dam committee, I had expressed my reservations about water being carried such long distances to the capital. If water levels keep decreasing, the Ganga will never be cleaned or rejuvenated. The river needs a minimum level of velocity, but if this keeps declining, pollution levels will keep increasing. Less velocity means more meandering and more sedimentation and erosion.

DAM OF CONTENTION The water in Tehri reservoir has been contaminated over the years

What about sewage treatment plants (STPs) and industrial effluents? The STPs in Varanasi are not properly located. They should have been on the sand bed side, which is the convex side. But they’re on the concave side, which is where villages and towns are

located. The convex side is the north, south and east of Varanasi and total pollution levels could have been transferred using the law of gravity. I had proposed the theory of three gradients way back in 1995. But it was rejected by the Central Pollution Control Board because they claimed it would choke the sand bed. But the sand bed is permeable. If you do not understand river dynamics, all your attempts are simply going to go down the drain. Are you happy with the `2000 crore allocated for Ganga cleaning by the Modi government? They first need to change their technological inputs. They need to develop smaller dams with a height of 4-5 feet so that there is no deterioration in water quality. These dams can be built at a distance of 100-kilometer intervals. If you build three such barrages, you have still ensured a flow of 70 percent as opposed to the 5 percent flow today. Your irrigation potential remains the same and the river flow is also constant. Unless experts are brought in to provide expertise, there will be no river left in the years to come.

INDIA LEGAL September 15, 2014

LEAD/ polluted ganga

Still caught napping Cleaning up the Ganga caught the attention of the Supreme Court recently. The country’s highest court felt that the Center was taking no initiative to make the river pollution-free. It observed that while the government showed earnestness on all other issues, there seemed to be no plan of action for the Ganga. While casting doubts on the government’s intention to fulfil its poll promise related to the Ganga, the apex court asked it to submit a plan of action by September 3, 2014. Even as the Union government was caught scrambling to unveil a concrete blueprint, Union Minister for Water Resources, River Development and Ganga Rejuvenation Uma Bharati reiterated that cleaning up the river was indeed a top priority for the government. Claiming that her ministry had set 2017 as the deadline for the mission, Bharati stated that her ministry would free the river of “most of its pollution” and ensure that “at least one stream of the Ganga flows uninterrupted.” The minister backed up her promise by informing that with 2015-16 being slated as “water conservation year”, there will be a significant leg-up in its efforts to cleanse the Ganga. However, the government’s intention, vision and action will become clear once its submits the roadmap to the apex court.

September 15, 2014

WILL GANGA SURVIVE? Water from the biggest drain in Kanpur, Sisamau, entering Ganga with all its pollutants. The sight and smell here is nauseating

Udham Singh Nagar district after the formation of Uttarakhand. POWERFUL LOBBIES Col (retd) Pramod Sharma, who heads the exservicemen’s association in Udham Singh Nagar, claims: “Leading industrial houses, such as Tata, Ashok Leyland, Birlas and Bajaj have set up industries here. They have effluent treatment plants, but do not run them in order to maximize profits. “A corrupt local bureaucracy has turned a blind eye to these goings-on, resulting in the steady deterioration of our water quality. Our organization consisting of ex-servicemen, farmers and children of freedom fighters is fighting for this cause but has little impact as strong lobbies work against us.” Sadly, this is the sorry state of affairs all over India. A recent UN report ranked India’s water quality as 120th among 122 nations. If that was not damning enough, a World Resources Report warned that 70 per cent of India’s water supply was polluted by untreat-

ed sewage. Already, salinity, iron, fluoride and arsenic have adversely affected groundwater resources across 200 districts, and 18 major rivers are polluted. Water activist Rajinder Singh says: “The Ganga and Yamuna provide water to 700 million Indians, all of whom are reconciled to inadequate and incompetent management of our water resources.” Attempts to cleanse the Ganga go back to the late prime minister Rajiv Gandhi's `1,700 crore Ganga Action Plan. Many activists have been at the forefront to clean up the river, including Mahant Virbhadra Mishra, professor of hydraulics at BHU, and IIT professor GD Aggarwal, who even went on a fast-untodeath in 2013 to commit the government to a cleanup. “Has any person, official or engineer, been made accountable for the failure of the Ganga Action Plan? Crores of rupees have been poured into these schemes without any accountability,” points out Aggarwal. It’s time this sacred river is accorded the respect it deserves. IL

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RIGHTS/ medical negligence

DEATH TRAP patients who are victims of medical negligence suffer twice over in their fight for justice By Akshat Agarwal

Amitava sen

September 15, 2014

amrata Bhargav wondered why she was experiencing severe abdominal pain since delivering a baby through a caesarean section about six months back. Initially, she dismissed it as something normal, thinking it to be the after-effects of surgery. But when the pain persisted, she got worried. Unable to even breastfeed her newborn due to the incapacitating pain, Namrata decided to get a few tests done. Following a CT-scan, she was horrified to know that there was a large cotton gauze, the size of a hand towel left inside her abdomen during her caesarean operation, causing an infection in her intestinal wall. And what was more shocking was that it happened at Fortis Hospital in Noida, that boasts of the best of amenities. These shocking cases of medical negligence are on the rise. Horror stories of objects being left by careless surgeons inside patients and rodents attacking infants in hospitals are hitting the headlines on a regular basis. There are few professions which have as much esteem and reverence attached to them as the medical profession. As a profession that deals with extremely sensitive matters of life and death, it is also one where utmost care and commitment is required. However, with the growth in professional medicine

in the country, cases of medical malpractice or negligence are rising correspondingly.

ince a certain degree of medical expertise is assumed to be possessed by all professionals in the field, their offering of a service can be seen as an implicit undertaking to the patient of their adequacy and skill. Moreover, the fact that human lives are involved, makes this a delicate situation: a mistake or an oversight on the part of the professional can cause severe damage to the person of the patient. There have been many cases where the sheer carelessness of a trained individual responsible for the care of the patient has caused injury or death. In the US alone medicalnewstoday.com reports that 1,95,000 deaths occur every year due to medical malpractice or negligence. Malpractice in India is perhaps just as prevalent, but lack of reportage and documentation means that no reliable figures are available. Legally, such an act of negligence can be the subject of a civil suit for the recovery of damages. In cases where it leads to the death of the patient, criminal proceedings under Section 304A of the Indian Penal Code can be brought against the accused healthcare providers for negligently causing death. However, it is no easy task to fight such a case. The law provides certain protections to medical professionals, on the grounds that such cases cannot be treated at par with ordinary cases of negligence. In Jacob Mathew vs State of Punjab, the Supreme Court laid down certain guidelines to be followed by the authorities if a complaint of criminal negligence comes up. One, the police cannot proceed against a doctor who has been accused of medical negligence without obtaining a second opinion from a medical professional, preferably a government doctor. Two, the court will be bound to follow this procedure: it must seek the opinion of a qualified doctor to ascertain whether there has been negligence or not, as judicial officers can hardly be expected to be familiar with the nitty-gritty of medicine and medical procedures. Finally, the police cannot arrest a doctor accused of negligence in a routine manner. This protects doctors from the constant

Rights of patients The Consumer Protection Act (COPRA) was passed in 1986 and hailed as a huge step forward for consumer interests in India. The act lays down the rights that all consumers have: including the right to safety, choice and information. It also established a framework of consumer forums at the district, state, and national level. These together form a fast track redressal mechanism for consumer complaints. A consumer is defined under COPRA as any individual who buys or hires any good or hires or avails of any service for a payment. In the milestone case of Indian Medical Association vs VP Shantha, the Supreme Court held that healthcare was a service unless it was for free. Thus, a patient going to a clinic or a hospital is a consumer when he pays for the services provided there, or if the clinic or hospital usually accepts payment for

services. Any hospital, clinic or dispensary that works free of cost does not come under the definition of services under COPRA and action cannot be taken against them. In today’s era of privatised healthcare, where large private hospitals often charge huge sums for their services, the act protects the interests of patients and offers them recourse in any deficiency in the services they have availed. The procedure for filing a complaint under COPRA is simple: A complaint can be filed, for a token cost, at the district forum for claims up to `20 lakh, at the state forum for claims up to `1 crore, and at the national forum in case the claim exceeds `1 crore. These forums are intended to provide a fast-track alternative to minimize the agony associated with long-drawn civil cases and have the same powers as civil courts and are empowered to order payment of damages.

fear of arrest. The court reinforced this idea in Martin D’Souza vs Mohammad Ishfaq, where it said: “While this court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country, particularly after the medical profession was placed within the purview of the Consumer Protection Act.” The bench, consisting of Justices M Katju and RM Lodha (now chief justice of India) went on to say in its judgement: “This (guidelines) is necessary to avoid harassment to doctors, who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameter laid down in Jacob Mathew’s case, otherwise the policemen will themselves have to face legal action.” The same apex court, however, has also shown its willingness to grant large sums as compensation where legitimate cases of negligence have been proved. In a milestone INDIA LEGAL September 15, 2014

RIGHTS/ medical negligence

What is medical negligence? Medical negligence, as the term suggests, is negligence in the field of medicine. It occurs when a healthcare provider, by some act or omission, fails to fulfil a duty owed to a patient, and thereby causes harm to the patient. The healthcare provider here might be a surgeon, a nurse, or any professional working in the medical field. These are the essential factors for a claim of medical negligence: A duty was owed: A legal duty exists whenever a hospital or healthcare provider undertakes care or treatment of a patient (for a payment) A duty was breached: The provider failed to conform to the relevant standard care The breach caused an injury: The breach of duty was a direct and proximate cause of the injury Damage: Without damage (losses which may be pecuniary or otherwise), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease

September 15, 2014

Anil Shakya

judgement in October 2013, the Supreme Court awarded Dr Kunal Saha `6 crore as damages for the death of his wife Anuradha due to the negligence of a prominent doctor in Kolkata. She had a minor skin infection and the doctor prescribed steroidsâ&#x20AC;&#x201D;to be taken twice a day. Normally, it should be given only once a week. This led to an allergic reactionâ&#x20AC;&#x201D;her skin started peeling offâ&#x20AC;&#x201D;and finally, her death.

fter a gruelling 15-year legal battle, wherein the NRI doctor fought tirelessly for justice, the court ruled in his favor. But Dr Saha had a significant advantage over the average litigant, as his medical knowledge helped convince the Supreme Court. Moreover, he had the resources to fight the protracted case, which most of those who fall victim to medical negligence do not have. Nevertheless, this case set a precedent, where large sums, hitherto unheard of in Indian medical jurisprudence, could be awarded. As increasing cases of negligence in India, even in expensive private hospitals, continue to rise, it becomes imperative to evolve a suitable mechanism for dealing with such complaints and claims. There is no doubt that

there are a lot of frivolous and vexatious complaints against doctors, from which they must be safeguarded. However, it is essential that this be balanced with the interests and rights of patients. The creation of a specialised tribunal is a solution suggested by many medical experts, and that includes the Indian Medical Association. Unlike consumer forums, which deal with the consumer complaints in general, such a forum would deal specifically with medical cases. This would allow for the appointment of medical experts as adjudicators, instead of their current role as amicus curiae or friends of the court. Such a framework can be created under the Consumer Protection Act through an amendment. Until concrete steps are taken towards the creation of such a steady mechanism, the hundreds of cases of medical negligence currently in the backlog, as well as the new cases arising every day, will continue to be a tough battle for the victims. Perhaps more ominously, until greater accountability and harsher punishment for negligent professionals are enforced, the indifferent attitude of doctors, even in the highest places, will continue to endanger life and limb in India. IL

RIGHTS/ medical negligence/case study HAPPINESS CUT SHORT Saha with his deceased wife in happier times

At the end of the TUNNEL

dr kunal saha’s legal battle is seminal for all affected by doctors’ laxity. he has got more than `11 crore for his wife’s death By Dinesh C Sharma

HEN lawyers of a Kolkata-based corporate hospital handed over a cheque of `1.06 crore to an NRI doctor in a sparsely crowded court room in the Supreme Court on July 7, it brought the curtains down on the longest running case of medical negligence in the judicial history of the country. Don’t get bemused with the amount. The cheque was not the compensation amount nor was it the interest on compensation awarded by the Supreme Court in October last year. The `1 crore plus paid by the Advanced Medicare and Research Institute (AMRI) to Dr Kunal Saha was the amount arrived at after the hospital had deducted TDS (tax deducted at source) from the INDIA LEGAL September 15, 2014

RIGHTS/ medical negligence/case study

Dr Kunal Saha says higher compensation will not help families hit by medical negligence but will act as a deterrent to the reckless practice of medicine in India.

Saha is no ordinary litigant. He himself is a doctor and has lost his wife, Anuradha, who was a child psychologist based in the US, due to medical negligence caused by the doctors of AMRI when she was admitted there during a social visit to Kolkata in May 1998 (read the story Death Trap). The personal tragedy turned Kunal into a crusader as well as champion of a cause with hardly any takers of medical negligence in the Indian healthcare system. In the past 16 years, Saha has taken on the Indian medical world and jurisprudence concerning medical cases and set new benchmarks. In this long battle, he has stood up to the high and mighty of the system. These include Dr Ketan Desai of the Medical Council of India (MCI), the state medical council, West Bengal Chief Minister Mamata Banerjee who appointed one of the doctors convicted in the case as her chief medical adviser, the Supreme Court administration for corruption in listing cases, and even a judge of the West Bengal high court.

LIFE-LONG CAUSE Kunal’s personal tragedy made him a crusader for people hit by medical negligence

September 15, 2014

compensation amount. Saha, arguing himself in court, contended that holding back part of the compensation and the interest on it amounted to contempt of the court. The judges—Justice V Gopala Gowda and Justice CK Prasad—agreed and categorically stated that “compensation” for wrongful death of a patient can’t be construed as ‘income’ and no income tax should be deducted from an award of compensation. AMRI lawyers were forced to hand over the cheque to Saha in the courtroom itself. “With this, AMRI has paid more than `11 crore in compensation and interest but they still owe me several lakhs of rupees as there is discrepancy in calculation,” Saha maintains. However, he is satisfied with the latest development in the legal battle that began in 1998.

he compensation amount of `11 crore which Saha has got from the case (including the interest amount, the actual amount being `5.96 crore) is miniscule, compared to `77 crore which he had originally claimed. “It is not the amount which is important but the judicial principles which have been established through this case,” he said in an interview. “Anuradha’s case has brought new hope to countless victims of medical negligence across the country and has shown a new pathway for calculation of compensation for loss of human life.” In any case, Saha is not taking even a single rupee back to the US, where he is based. He had already declared that he would donate any compensation amount awarded by Indian courts to People for Better Treatment (PBT), a patient’s rights group he set up in Kolkata to address the problem of negligence and malpractices in the Indian health system. Saha had filed a sworn affidavit to this effect in the court. Now, he says, he has spent more than `11 crore to fight the case for 15 years, which involved innumerable visits to India, legal costs, payment to attorneys and experts, and so on.

The experience of the case is seminal for all concerned with medical negligence in India. First, the National Consumer Disputes Redressal Commission (NCDRC), the apex body for all consumer complaints including medical negligence under the Consumer Protection Act of 1986, dismissed the case after hearings, which went on till 2006. It based its judgment on the recommendation of the West Bengal Medical Council. When Saha appealed in the apex court against the verdict, it overturned the judgment and found that Anuradha had indeed died due to negligence of doctors at AMRI, and convicted four leading doctors. Two of them are since dead and one is elevated to the post of chief medical advisor of the West Bengal government. Among other things, the apex court ruled that overdose or wrong dose of a medicine too amounts to negligence, as Anuradha had died due to wrong dose of a powerful steroid. However, the court did not fix the compensation and referred the case back to NCDRC solely for the purpose of determining the quantum of compensation. The consumer court, which had found no negligence earlier, then awarded compensation of `1.72 crore but went beyond its brief and, surprisingly enough, held Saha too party guilty of negligence. It deducted 10 per cent of the amount for “contributory negligence” on the part of Saha himself as, according to the consumer court, he interfered in the treatment. Saha went back to the apex court, which heard the case once again and after lots of twists and turns, hiked the compensation amount in October 2013 to `6.08 crore with interest since 1999, which comes to over `11 crore. In the process, the court established several new principles of law for calculating compensation in such cases (see box).

hankfully, the NCDRC has learnt its lessons, as reflected in its judgment in the case of death due to negligence by an elevator company. Though it was not a case of medical negligence, the consumer court used principles laid down in the Anuradha Saha case and awarded compensation of over `3 crore to the victim’s family in February 2014.

Calculating compensation Ramifications of the Supreme Court verdict in Anuradha Saha case Future prospects of the victim must be considered for determination of compensation: Even if a child or young student dies from negligence, his potential income in future, not income at the time of death, should be considered for calculation of compensation. Enhanced compensation should be paid for long delay in the legal system: Claim made in the original petition must be proportionately increased considering inflation and devaluation of money for the long period of delay in every case. Compensation claim may be changed even without pleadings: Original claim may be increased at any stage during litigation even without amendments or pleadings. Interest must be paid from the date of filing of case: Appropriate rate of interest must be added in all cases of “medical negligence” from the day of filing the case. “Multiplier” method cannot be used

in medical negligence cases: Formula of “multiplier” method generally used under Motor Vehicle Act (MVA) with restricted compensation cannot be used in medical negligence cases. Status of doctor or hospital should be taken into consideration: The status of treating doctors and hospital should be taken into account for determining the quantum of compensation. Enhanced compensation should be paid for medical negligence cases against more reputed doctors and hospitals. Legal and travel expenses must be paid: Appropriate level of lawyers’ fee and legal expenses must be reimbursed by the guilty doctors or hospital. Hospital must pay compensation: While doctors may be punished for their negligent act, hospitals must pay the lion’s share of compensation for vicarious liability.

The role of state medical councils is crucial for medical negligence cases. Since consumer courts lack the necessary expertise, they go by recommendations of the state medical councils and the MCI acts as an appellate authority for state councils. However, state councils and MCI rarely go against members of their own community as it happened in the case of Saha. Therefore, he is fighting to reform the system by insisting that non-doctors should also be involved in the process, as is the practice in the US and the UK. Saha says higher compensation is not going to help families suffering from medical negligence but it is necessary to inflict “a strong deterrent effect on reckless practice of medicine by many Indian doctors and hospitals.” It’s a long haul before he can rest. IL INDIA LEGAL September 15, 2014

CRIME / public sector fraud

The Great

Bank Robbery the arrests of syndicate bank cmd and owner of bhushan steel highlight the infiltration of middlemen in the public sector By Vishwas Kumar

T was an unholy nexus that saw the exchequer losing crores of rupees. And considering that government banks were involved, it was worrisome. The recent arrests by CBI of Sudhir Kumar Jain, suspended CMD of Syndicate Bank, which has over `10,000 crore assets, and Neeraj Singal, owner of Bhushan Steel, a public limited steel manufacturing company worth `9,000 crore, show a shocking disregard for public probity and morality. Both were held for exchanging a bribe of `50 lakh in lieu of a loan worth `100 crore. The scandal blew the lid off rampant corruption in government-controlled banks while awarding “high risk” loans (which have less chance of recovery) to wealthy businessmen under the influence of middlemen. But why would Jain and Singal, both

September 15, 2014

presiding over huge fortunes, jeopardize their future over an amount as little as `50 lakh? According to a CBI insider, it was a case of desperate times calling for desperate measures. STRUGGLING COMPANY Singal’s company was struggling with huge debts, totalling `40,000 crore, taken over a period of time. These were mostly from public sector banks like State Bank of India (SBI) and Punjab National Bank (PNB). The company was not in a position to return these huge loans and the resultant interests. In these circumstances, the company urgently needed fresh funds to carry on day-to-day operations. But no responsible bank was likely to bail it out, unless some “middleman” convinced top bosses to extend credit limits and “overlook” the debts. These “middlemen” operate under the garb

of loan or financial consultants. As the CBI’s case reveals, Singal got in touch with Pawan Bansal, the MD of Altius Finserv Private Limited (AFPL), a Mumbai- and Delhi-based loan and financial consultant. AFPL opened negotiations with several “friendly” bankers and finally got a positive response from Syndicate Bank’s Jain. As per the bank’s rules, any decision to extend a big credit limit could only be taken by Jain. Negotiations now started between Jain, Bansal and Singal, which lasted over six months. Finally, a deal was struck, where the bank would extend a `100-crore credit limit in lieu of `50 lakh bribe being paid in advance to Jain. They were, however, unaware that the CBI’s anti-corruption unit was listening and recording their telephone conversations and also keeping a watch over their movements. Finally, on August 2, much to their astonishment, CBI sleuths swooped down on them and arrested them. EASY BAIT But why did Jain agree to the offer of Singal and Bansal? To understand that, one must

Those who were appointed by paying bribes obviously indulged in corrupt practices to get their money back. Doling out risky loans was the easiest way to do so. know how CMDs of public sector banks are appointed. In 2013, Delhi’s power circles were abuzz with rumors that the Ministry of Finance was in a hurry to fill vacancies for the post of CMD of these banks. It was alleged that if money was paid, the appointment of these top bankers could be facilitated. The ministry has a major say in the appointment of top bankers, even though there is a so-called independent panel, the Public Enterprise Selection Board, to do so. Similarly, it was alleged that there was even a rate for the appointment of bank board members. These are people who will scrutinize the CMD’s performances. According to the CBI, Jain’s appointment as CMD on July 8, 2013, “lacked transparency and smacks of unfair practices”.

DUBIOUS NEXUS

(L-R) Jain of Syndicate Bank and Singal of Bhushan Steel had no scruples about cheating the public of `100 crore

INDIA LEGAL September 15, 2014

CRIME / public sector fraud

Anil Shakya

CASH-HUNGRY COMPANY The premises of Bhushan Steel in Sahibabad

Loan brokers with good connections with bankers help in reducing interest rates by a few percentages or enable companies to get loans loans without adequate collateral. A confidential advisory sent by CBI director Ranjit Sinha to Finance Minister Arun Jaitley hints at collusion with finance ministry officials in his appointment. The CBI advisory, according to an Indian Express report, mentions the role of Rajiv Takru, secretary, financial services, who was chairman of the subcommittee that recommended Jain’s appointment at its meeting on February 11, 2013. Takru is now secretary, Ministry of Development of North East Region. The “unfair practises” cited by CBI is a reference to Takru’s sub-committee giving SK Jain 29 marks out of 30 in his interview with

September 15, 2014

the Banking Appointment Board. This high score helped to propel Jain to the post, even though he had scored only 62 out of 70 marks in the Annual Confidential Report, the report added. The sub-committee also picked up candidates for seven other top bank posts. The CBI is now awaiting the finance ministry’s nod to probe them too. Takru, however, has denied any favoritism. The agency’s allegation lends credence to the rumors swirling around in 2013 that middlemen were active in the appointment of top bankers and board members in government banks. Those who were appointed by paying “bribe” obviously indulged in corrupt practises to get their money back. Doling out “‘risky” loans was the easiest way to do so. LOAN BROKERS Besides this, providing loans is an important tool for any bank to earn profit. All bankers

have annual targets for providing different types of loans, be it car, personal, housing, commercial, etc. They often lure customers by offering incentives such as easy payment schedules and varying interest rates. But there are customers who come with special requirements. These include businessmen who have to negotiate terms and conditions from the bankers. It is here that loan brokers with good connections with bankers play a role. They could, for example, help in reducing interest rates by a few percentages or allow loans without adequate collateral. With rampant bribing, everybody benefits, be it the banker, the businessmen or the broker. Of course, the bank loses out. In most cases, such businessmen default on these loans and banks are unable to recover them as there is a long, winding legal process to recover them. In most cases, there is nothing left for the banks to recover, as the businessmen gradually strip their companies of all valuable assets. These are either transferred to another company or put in the name of family, friends or close associates. Such “junk loans”, also called Non-Performing Assets (NPAs), led to Syndicate Bank’s net profits declining. Two months before Jain was arrested, some of Syndicate Bank’s board members raised the issue of rising NPAs during the Annual General Meeting (AGM) held at Manipal, Karnataka. The minutes of the AGM reveal that the net profit for 2012-13 was `2,004 crore. This declined to `1,711 crore in 2013-14 due to the rise of NPAs. Net NPA percentage, as compared to net advance, stood at `1.56 percent in 2013-14 as compared to 0.77 percent in 2012-13, indicating that there was a steady growth in NPAs. STEEL YOURSELF Let’s look at Bhushan Steel now. The company, founded by Brij Bhushan Singal in Sahibabad, UP, in 1989, started as a value-added steel manufacturer. Singal’s younger son Neeraj, who now runs the company, aggressively expanded into steel manufacturing, with major plants located in Odisha. From the time when the Chinese construction boom started till 2011, when steel prices touched an all-time high, all steel companies, including Bhushan Steel, made handsome profits and expanded.

Fluctuating fortunes of Bhushan Steel HIGHS Between 2006-2010, debt repayments: `55 crore-`316 crore a year Cash from operations during the same year: `400 crore each year Annual growth rate: 53% LOWS From 2010-11, debt repayment obligation more than trebled to `1,118 crore Several loans taken, including for phases I&II of the Odisha plant, led to operating cash flows of `994 crore In 2013-14, interest burden shot up to `1,663 crore In 2013-14, profits shrank 93% to `59 crore Accumulated loans of Bhushan Steel: `40,000 crore No of banks it took loans from: 51

In 2009, Bhushan Steel acquired controlling interest in Queensland-based coal and exploration company, Bowen Energy. It further tied up with Japan’s Sumitomo, a steel manufacturer, to start a plant in West Bengal in 2007. It borrowed heavily from banks to fuel this rapid expansion and growth. Initially, the company met the repayment schedule. However, profits started declining in proportion to the global decline in steel prices. And then came the double whammy. A huge scandal broke out in the UPA-II government’s award of mines and coal blocks. The Supreme Court stepped in and multiple investigative agencies launched probes. These developments hugely impacted businesses. Caught in a classic debt trap, Bhushan Steel was on verge of defaulting loans. If the loan was declared a NPA, it would prevent other banks from lending money to the company. Till now, the company had prevented its loans from being declared NPA by paying minimum amounts of interest. However, it urgently needed money to even meet the next round of interest. It was this urgency that forced Singal to seek the help of Bansal for a loan from Syndicate Bank. This is a classic case of biting off more than one can chew. IL INDIA LEGAL September 15, 2014

CRIME/ Kolhapur murders

KILLER SISTERS while the mercy petition of two kolhapur sisters who murdered 10 kids was rejected, why wasn’t their psychological condition evaluated? By Ritu Goyal Harish in Pune

ERY rarely do women commit crimes so heinous that society feels a sense of revulsion. Serial killers and half-sisters Renuka Shinde, 41, and Seema Gavit, 39, are two such persons and they will go down the annals of history as the first women to be hanged in independent India. Though President Pranab Mukherjee rejected their mercy petition early this month, their execution has been stayed by the Bombay High Court till the disposal of their petition seeking commutation of death sentence to life imprisonment. The next hearing is on September 9. Given the enormity of their crimes, there are few sympathizers. How could they find

September 15, 2014

any sympathy? After all, they kidnapped and murdered over 13 toddlers, using them to distract crowds when in danger of being caught while stealing. Even the advocate, who was representing them, was shocked at their cold-bloodedness. HORRIFIC ACTS So vile were their acts that it attracted the censure of a Supreme Court (SC) Bench of KG Balakrishnan and GP Mathur, who said: “They had been a menace to society and people in these cities were completely horrified and they could not send their children even to schools.” One would hardly have expected such barbarity from women. It all started in 1990, when Renuka, who

SISTERS IN ARMS (L-R) Seema Gavit and Renuka Shinde, who killed toddlers to distract attention during their stealing bids

ANIMAL INSTINCTS The

prosecution, citing an instance of their mercilessness, narrated that once, when Seema was caught trying to snatch a purse, Anjana flung a kidnapped toddler, Santosh, to the ground, resulting in a grievous head injury. In the resulting commotion, Seema escaped

another instance, they chopped the body of a child, stuffed it into a gunny bag and then, sat and watched a movie with the bag at their feet, awaiting disposal

They

were also charged with the kidnapping and murder of Kranti, the daughter of Anjana’s second husband, Mohan Gavit (Seema’s father), but were not convicted for the same Since the focus has been on murders, there’s no account of how much they actually stole in all these years; the lawyers also have no knowledge about it.

was married to one Kiran Shinde, was caught stealing at a temple in Pune. She ingeniously used her son to defend herself and pleaded with the crowd that she was a mother and couldn’t possibly be a pickpocket. She was let off. This gave the gang, which included Shinde, the idea of using children as pawns in their acts. Thus began their journey from being petty thieves to murderers (See Box). Between 1990-1996, Renuka, Seema and their mother, Anjana, kidnapped more than 13 children from Pune, Nashik, Thane, Kalyan and Kolhapur. In 1996, the trio was charged with the kidnapping of 13 children and murder of 10 of them. Anjana died before the trial began. The district and sessions court in Kolhapur

sentenced the sisters to death. Their appeal was rejected by the Bombay High Court; and by the Supreme Court in 2006. The SC Bench observed: “They very cleverly executed their plans of kidnapping the children, and the moment they were no longer useful, they killed them. The appellants had not been committing these crimes under any compulsion, but they took it very casually and killed all these children, least bothering about their lives or the agony of their parents.” Even those meant to help them found it difficult to sympathize with them. One of them was Pune-based advocate Asim Sarode, who assisted them in filing the application for clemency with the president after the INDIA LEGAL September 15, 2014

CRIME/ Kolhapur murders

“Meeting them created fear in my mind … Neither on their face, nor in their body language, did I see any repentance for what they had done to so many children.” -- Advocate Asim Sarode, who assisted the sisters in filing an application for clemency with the president SC rejected their appeal. Sarode says: “I am a human rights lawyer and I advocate that death penalty won’t stop violence. But meeting them shook my faith in this belief.” DEADLY DUO Whenever he would meet the two sisters, he would spend sleepless nights, restless at how inhuman humans could be. At one point, he even called his wife and asked her to keep a watchful eye over their own toddler. “It created a fear in my mind when I met them,” he says. The sisters, he says, showed no remorse or shame. “Neither on their face nor in their body language, did I see any repentance for what they had done to so

September 15, 2014

many children,” he adds. Even inside jail, the sisters were scheming and plotting. “After their mother died, they blamed her for the murders,” reveals Sarode. During his meetings with them, they seemed more concerned about the money they had stashed away from their crimes. They even blamed Shinde for turning approver in the case. “He used to drive the getaway vehicle and took the opportunity to escape punishment. He was also in an illicit relationship with Seema,” says Sarode. They were a nuisance inside the prison too and indulged in high-handed behavior with other inmates. “Their dadagiri was getting out of hand and the only solution left for the police was to separate the two,” says Sarode. As a result, Seema was shifted to Nagpur Central Prison. “The gravity of their offense is serious and the lack of remorse only made their case worse. In 14 years of practise, I have met many prisoners who confess to killings, due to circumstances, etc. But these two never did,” he adds. PSYCHIATRIC PROFILING Even so, as he was required to assist them, he did. He explains: “Everyone should get legal aid. Let people put their side before the court and let the court take a decision. It was not done out of sympathy for them.” But this case is a lesson for authorities in dealing with similar cases. Despite nearly two decades of incarceration, no effort was made by the establishment to evaluate the psychological condition of the sisters or conduct any psychiatric profiling. “Cops are not working from a sociological angle at all. The sisters should have been analyzed for psychological dysfunction. The police can take lessons from such offences for the future,” stresses Sarode. Citing Justice VR Krishna Iyer, Sarode says: “The rarest of rare cases should not be based on the discretion of judges alone. These should also take into account the psychology of the criminal.” He laments the lack of initiative in making changes in the system. Till such time as the underlying cause for these crimes is found, no lasting change will take place. IL

CONTROVERSY/ shia-sunni conflict/varanasi

Much ado about graves a simmering dispute between the shias and sunnis has forced the courts to pull up an apathetic uttar pradesh government for not performing its duty By Ajay Agarwal

A poster from theapricity.com

September 15, 2014

HIAS and Sunnis, the two main sects of Muslims, have always been at loggerheads. Their friction is now subsuming parts of the world and erupting into bloody fighting, killing thousands of innocent people. India, largely peaceful compared to the rest of the world, too has had pockets of disturbances between these two communities. In a small part of UP, Mohalla Doshipura in Varanasi, the schism between them over land issues has simmered for over a century. And there seems little solution to it, with the UP government not showing much enthusiasm in implementing the Supreme Court’s order dated September 23, 1983, favoring the Shias, leading to a festering problem for close to 31 years. It all started in 1893, when a baradari was constructed by the Shias on Plot No 247/1130 in this mohalla. Eight other plots—Nos 245, 246, 246/1134, 247, 248/23/72, 602, 602/1133 and 603—were situated around this baradari and had structures, such as Zanana Imambara, Imam Chowk, Sabil Chabutra and a mosque—all exclusive properties of the Shia Waqf. IN FAVOUR OF SHIAS These plots are of particular significance for the Shias, numbering close to 4,000 here. During Moharram, the Shias hold majlis (religious discourses) and recitations, take out processions, etc, in these plots. But some of the plots have been a bone of contention between them and the majority Sunnis, who allege that part of the plots was a graveyard. In 1879, a suit was filed by the Sunnis regarding Plot No 246, but the verdict was in favor of the Shias. The Maharaja of Varanasi too filed a suit against the Sunnis and a decree was passed restraining them from the

property. The Sunnis filed another suit directing the Shias to demolish the structure on Plot No 245 and hold the majlis only on the 9th and 12th day of Moharram. The Shias appealed and a trial court rejected the suit of the Sunnis. The Shias right over the property was, thus, confirmed. It was in January, 1954 that the Shia community approached the Muslim Waqf Board to get the property registered. The Waqf Board declared that the property belonged exclusively to the Shia Waqf. A gazette notification in this regard was issued on January 23, 1954. However, the issue rose up again when from 1960-1966, the UP administration passed orders restraining the Shias from carrying out religious functions on the occasion of Barawafat. Constant back and forth appeals through the years have reportedly seen the Sunnis trying to claim the said plot, either through encroachments or by alleging that part of the said plot was a graveyard. REDRESSAL FROM COURTS Aggrieved over these restraints, one Gulam Abbas and two others filed a writ petition in the Allahabad High Court in 1978. In November 1981, the high court decided in

favor of the Shias. Its order said: â&#x20AC;&#x153;There is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias entitlement of customary rights over the plots, structures in question. Whatever be the position as regard their titles to the plots or structures, we have already indicated that this decision even upholds their titles to two main structures, Zanana Imambara and Mardana Imambara (Baradari).â&#x20AC;? It further restrained the Sunnis from interfering with the rights of the Shias and asked the magistrate of Varanasi to take action if these orders were violated. However, despite this judgment, there were violations. In order to find a permanent solution, a committee with representatives from both the communities was formed under the chairmanship of the divisional commissioner. He submitted his report on December 9 that year, wherein it was opined that shifting of two graves in plot No 602/1133 to the south of the grave of Maulana Hakim Badruddin was feasible. On September 23, 1983, the high court ordered that a boundary wall 12 feet in height be constructed around some of the plots where the Shias performed their functions and ceremonies. Also, the two

ROW OVER GRAVEYARD The Doshipura Navapura Kabristan. The mohalla has been a battleground between Shias and Sunnis

INDIA LEGAL September 15, 2014

CONTROVERSY/ shia-sunni conflict/varanasi

The courts have repeatedly told the Sunnis they have no right over the eight plots and have reminded the UP administration to follow the judicial order in letter and spirit. CENTER OF ATTRACTION The Shia-Sunni schism in Doshipura has now acquired political overtones. Modi has already reaped the harvest

graves, when shifted near the grave of the maulana, should have the exact dimension of the old, open spaces. All this, said the high court, should be done under the supervision of the District Magistrate (DM) of Varanasi and in the presence of representatives of the Shias and Sunnis and be completed, preferably before Moharram. It further said that the Shia community would bear the entire cost of the operation. However, the UP government said the task of shifting the graves was stupendous and would lead to a law and order problem. The high court dismissed this and detailed the procedure by which the graves could be shifted. FLOUTING THE LAW On September, 28, 1984, the high court passed an interim order before Moharram

September 15, 2014

restraining the Sunni community from going to any of the eight plots (except Plot No 246 on which the mosque stands) or the structures there for performing any religious practices. But this order was violated from December 7-9 that year when the DM granted permission to the Sunni Community to perform two ritualsâ&#x20AC;&#x201D;reading Fatiha and laying Chaddarâ&#x20AC;&#x201D;at the grave of Hakim Badruddin. The high court slammed the UP administration and said the apparent encroachment could be the result of a lack of proper understanding of the courtâ&#x20AC;&#x2122;s order or due to its misinterpretation on the part of concerned authorities. It also came down heavily on the Sunni community and said it had no right whatsoever over the eight plots. Further, it told the DM and the police not to misunderstand the said order and carry it out in letter and spirit. However, in an order dated March 7, 1986, the high court said that instead of cordoning the two graves (of two persons called Lal Mohammad and Shakina), they should now be permanently enclosed on all sides with a brick wall and sealed off. The wall should be constructed by the state govern-

ment at its expense within four months from this order. It also said that the compound wall or wire fencing surrounding the open space in the remaining plots (except Plot No 246 where mosque stands) be deferred and the Shia community could withdraw the `1,32,250 deposited by it. Not happy with the orders of the Allahabad High Court, the Sunnis filed a writ petition in the Supreme Court in 1983. But here too, they were found wanting. In the Abdul Jalil & Ors vs State of UP & Ors, case, the Supreme Court lambasted their attempt to review an earlier apex court decision, where the case was dismissed. It said the attempt of Sunnis to portray the shifting of the two graves as a desecration sounded ironical when they themselves had denied similar rights to Shias. It further stated that the decision to shift the graves was in the interest of maintaining public order. It said exhumation of a body for the purpose of crime detection was applicable to all, irrespective of personal law governing the dead. It cited two historical instances of such grave removal: the grave of Mumtaz Mahal was removed from Burhanpur to Taj Mahal in Agra and the grave of Jahangir was removed from Kashmir to Lahore. It criticized the Sunnis for not staggering their ceremonies during Moharram to avoid a conflict with those of the Shias. Saying this, the Supreme Court dismissed the Sunni petition on November 15, 1983. FLAK FROM JUDICIARY But it was the UP government that came in for criticism for its lax attitude. The Supreme Court advised it in 1984 that there was no problem in carrying out the graves’ shifting as per its 1983 order. Technical difficulties in doing so, said the court, could be surmounted by first dismantling the stony super structure of the graves to the proposed site and then digging the bones and putting them in the new graves. It questioned the UP government’s statement that four shops near the place, where the graves were to be shifted, were 15-20 years old. It said that a survey had revealed that this was not true and that the plot had been vacant. It categorically said the shifting of the graves should be undertaken

Bad Blood

1879:

A suit with regard to Plot No 246 in Mohalla Doshipura of Varanasi decided in favor of the Shias 1893: A baradari was constructed on Plot 247/1130 by the Shias. There were eight other plots—Nos 245, 246, 246/1134, 247, 248/23/72, 602, 602/1133 and 603—near it The Sunnis filed suit directing the Shias to demolish structure on Plot No 245 and hold the majlis only on the 9th and 12th day of Moharram The Shias appeal and the trial court rejects the suit of the Sunnis January 1954: The Shia community approaches Muslim Waqf Board. 1960-1966: UP administration passes orders restraining the Shias from carrying out religious functions 1978: One Gulam Abbas and two others file a writ petition in the Allahabad High Court over the right of the Shias over these plots November 1981: High court decides in favor of the Shias

1983:

The Sunnis file writ petition in Supreme Court; SC lambasts them September 23, 1983: HC orders a boundary wall be constructed around some of the plots where the Shias performed their functions and ceremonies; UP government contends that the shifting of graves would lead to a serious law and order situation November 15, 1983: SC dismisses the Sunni petition September, 28, 1984: HC passes an interim order before Moharram restraining the Sunni community from going to any of the eight plots December 7-9, 1984: DM grants permission to Sunnis to perform two rituals at the grave of Hakim Badruddin March 7, 1986: HC says the two graves of Lal Mohammad and Shakina be permanently enclosed on all sides with a brick wall and sealed off Early September: Case coming up in the SC

without delay and that Sunnis should not interfere or obstruct the operation. While this problem has festered, it has also acquired political overtones, with the victory of Modi in Varanasi being seen partly due to Shia’s support there. Mulayam Singh Yadav has realized the importance of catering to the Shias. One hopes that all these will bring about some settlement between the two communities on the contentious issue. IL INDIA LEGAL September 15, 2014

GOVERNANCE/ obsolete laws

Out with the old in order to speed-up decision-making, the modi government is weeding out close to 300 laws By Anita Katyal

W Illustrations: Amitava Sen

September 15, 2014

hat is the first image that comes to your mind when you think of a lawyer? A person in stately black robes, weighed down by tomes? Followed by a lackey with a bag of gilt-edged legal books? This “weighty” affair could well be a thing of the past if the present government has its way. Legal books are set to get a tad lighter, as the BJP-led NDA government, in a welcome move, is doing away with archaic and irrelevant laws. This could see as many as 300 laws being removed. It follows from a directive of Prime Minister Narendra Modi, who, in his first meeting with top bureaucrats, made it clear that laws, which delay decision-making, must be identified and removed. Modi set up a committee on August 27 to identify the obsolete laws within three months. This will certainly make the legal process swifter. Modi’s directive has already got the government up and running. During the budget session of parliament, Law Minister Ravi Shankar Prasad introduced the Repealing and Amending Bill, 2014 in the Lok Sabha. This will see 36 antiquated acts being repealed. Of these, 32 are amendment acts, which were passed to change existing laws, while the remaining four have already outlived their utility.

The Amendment Acts, which are sought to be repealed include amendments to the Representation of the People Act, Marriage Laws, Election Laws, Divorce Laws and Anand Marriage Act and the Evidence Act. The standalone Acts which will be repealed through the Bill are the Foreign Jurisdiction Act, 1947, and Sugar Undertaking (Taking Over of Management) Act. “The Bill is one of those periodical measures by which enactments which have ceased to be in force or have become obsolete or the retention whereof as separate Act is unnecessary are repealed or by which the formal defects detected in enactments are corrected,” said the Statement of Objects and Reasons of the Bill. After Modi’s directive, Cabinet Secretary Ajit Seth sent out an 11-point action plan to all ministries on improving governance. Each department was asked to identify and repeal at least redundant 10 rules and acts. Prasad too has written to all the ministries and the Law Commission to identify antiquated laws, which can be removed from the statue books. Enthused by his initial effort, he has promised to continue this exercise, which has been at a standstill since 2001. Addressing Supreme Court lawyers on Independence Day, Prasad said he had assured the prime minister that as many as 300 antiquated laws would be repealed in the winter session of parliament. “The Prime Minister directed me that new laws are to be made, but equally, outdated laws need to be scrapped. I am pursuing this very, very strongly,” stressed the law minister. WELCOME MOVE The legal fraternity, as expected, has welcomed this move. “It is, indeed, a good move. These old laws must go, they are no longer relevant…. these laws are like deadwood,” remarks eminent advocate PP Rao. Senior Supreme Court lawyer Indu Malhotra says that some of the laws enacted during the British period were still alive. Many were over a hundred years old and had lost their relevance. “You cannot have laws which are so dated…laws need to be in sync with changing times,” she adds. For instance, she explains, India’s rape

laws dated back to 1860 and were amended only after public outcry over the Nirbhaya case. Similarly, Section 377 of the Indian Penal Code, criminalizing gay sex, is at least 150 years old, she says. “This law is absolutely absurd… after all, this is a consensual relationship. You can’t describe it as a crime,” Malhotra says vehemently. These laws need to be removed and replaced with a modern and progressive legislation, she adds. Surprisingly, there are laws which can be used for the same crime, thus creating confusion and unnecessary complications in the delivery of justice. Take maintenance in divorce laws. Malhotra says a litigant can pursue a case under Section 125 of the Indian Penal Code, the Hindu Marriage Act and the Domestic Violence Act. “There is bound to be confusion when there are parallel laws…this is what happens when you bring new laws without repealing old ones,” she maintains. SPORADIC EFFORTS Various governments have attempted to weed out obsolete laws over the years but these efforts have, at best, been sporadic and erratic. As many as 285 old laws were first repealed in 1960 on the recommendation

India’s rape laws date back to 1860 and were amended only after public outcry over the Nirbhaya case. The law criminalizing gay sex is at least 150 years old. INDIA LEGAL September 15, 2014

GOVERNANCE/ obsolete laws

Various governments have attempted to weed out obsolete laws over the years but these efforts have been sporadic and erratic. 285 old laws were first repealed in 1960.

up a special commission under the chairmanship of PC Jain to identify laws which could be removed. While collating these obsolete laws, the commission found that governments had been slow to repeal them as they feared it could revive any pending matter settled by those enactments.

of the Law Commission, which had studied all the British statutes which had become irrelevant. But the pace of striking down these laws slackened subsequently. The Congress-led UPA government also attempted to move ahead with this agenda. It even suggested that laws should have a “sunset clause” or an expiry date so that a legislation no longer valid after 20-50 years, is automatically struck off the statue book. But these efforts did not move beyond the discussion stage. Congress spokesperson and senior lawyer Abhishek Singhvi admitted that though several attempts were made to identify obsolete laws, the real problem is implementation. “There is one detail most people ignore. Identification and repeal of old laws is easy, but in 80 per cent of the cases, this requires some minor amendment in an existing law so as to adapt it for contemporary use,” he says. Simply deleting a law is an easy and quick process, he says, but modifying it requires time, often difficult in a hectic parliament schedule. It was the NDA government which took serious note of this issue in 1998. It even set

NEW BEGINNINGS The commission had recommended the removal of 1,382 old laws, of which only a few hundred were repealed. These include those passed during the British rule and others which were enacted to deal with special situations in the post-Partition period. These include the Exchange of Prisoners Act, 1948, the Resettlement of Displaced Persons (Land Acquisition) Act, 1948, and Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952. But more needs to be done. For example, there is the Oudh Taluqdars Relief Act, 1870, which is still alive even though the province of Oudh and taluqdars do not exist anymore. Prasad recently admitted that some of these laws were both absurd and laughable. Shockingly, even laws enacted during the World War are alive, despite their absurdity. Prasad said that Modi was surprised to learn the existence of a law in Gujarat which mandates that the police prepare a daily record of any subversive material which had been airdropped. This act was enacted during the World War and is a classic example of a law which needs to be deleted. Continuing with such laws can also be troublesome, as they can be misused. Take the case of the Sarais Act, 1867, which says that “sarais” (lodges) must provide toilet facilities to the public. Prasad said a fivestar hotel in Mumbai was harassed by overzealous litigants, who insisted that the hotel management allow all outsiders to use its toilets, as the hotel technically qualified as a “sarai” under the Sarai Act. But it is also important to see that this exercise is not rushed through. In its hurry to deliver, the government must not leave any gaping loopholes which could create more problems for litigants. IL

Some other enactments to be repealed The Indian Fisheries Act, 1897 The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 The Delimitation (Amendment) Act, 2003 The Hindu Succession (Amendment) Act, 2005 The Parliament (Prevention of Disqualification) Amendment Act, 2006 The Personal Laws (Amendment) Act, 2010 The Administrators-General (Amendment) Act, 2012

September 15, 2014

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SPECIAL REPORT/ judicial irregularities/justice bs chauhan

Some are more equal than others in the eyes of the law, everyone is equal. but a case of a senior judge shows how rules can be subverted with impunity By Ramesh Menon WHY THIS IMPUNITY? Justice BS Chauhan has been involved in several questionable property deals, but has not been punished for these

September 15, 2014

Letter by Justice Chauhan to a Noida executive, pursuing his request for two plots

Application of Beena Singh with Justice Chauhan’s address on it

ECENT weeks have seen a hullabaloo over judicial accountability. And it is time for judges to unemotionally examine what is happening within their own fraternity. This is all the more imperative when irregularities are being brought to the attention of the court. Justice Markandey Katju, chairman of the Press Council of India, raised a hornet’s nest recently when he made wild allegations questioning the integrity of the late Justice Ashok Kumar. There are many others who haven’t been pulled up by the judiciary or even investigated in spite of serious charges. While insiders are well aware of numerous controversies within the judiciary, this still hasn’t become a subject of public debate. When Justice BS Chauhan was the chief justice of the Orissa High Court, it was Justice Katju who recommended his elevation as a Supreme Court judge ignoring numerous allegations against him. Justice BS Chauhan, retired from the Supreme Court (SC) this year and is presently chairman, Cauvery Water Disputes Tribunal. He was a senior judge of the Allahabad High Court when he passed an order asking the CBI to inquire into irregularities in the allotment of residential plots by Noida Authority. Was he taking a high moral ground when he did so? Investigations into his likely intent make for interesting reading.

Letter by the judge to Noida Authority, saying he is sending in two applications

Justice Chauhan managed to get allotment of Plot K-1 in Sector 18, Noida, for a cinema hall, but got it converted into a shopping complex in collusion with Noida officials. In a surprising move, Noida Authority made the allotments, but cancelled these within hours. It defended this behaviour saying that a news item in The Times of India suggested that there were irregularities in the allotment. When this was challenged, Justice Chauhan in July 2007 upheld the cancellation and asked for a CBI investigation. According to the interlocutory application filed in his special leave petition (SLP) in November 2007, Delhi-based lawyer Kamal Kapoor, whose allotment was among the 625 that were cancelled, claimed that Justice Chauhan had in a letter on January 13, 2005, written to a Noida official demanding allotment of two plots in the housing scheme. However, he did not get the plots. But that wasn’t the end of the matter. The SLP pointed out that on April 6, 2005, Justice Chauhan wrote another letter to a Noida official with a copy to CEO, Noida, indicating that Tata Consultancy Services be appointed to conduct the draw of lots for the residential plots that he was interested in. He still persevered and on April 29, 2005, he shot off a letter to deputy CEO, Noida, referring to the conversation he had regarding INDIA LEGAL September 15, 2014

SPECIAL REPORT/ judicial irregularities/justice bs chauhan

POINT OF LAW Justice Aftab Alam questioned the SLP filed by Kapoor, saying it was in bad taste

Improprieties galore WHEN Justice BS Chauhan was the high court judge, Sadhna Chaudhary, an additional district judge, who was also his classmate, alleged that he had exploited and harassed her. She said he had also approached her for some favours. Her petition against Justice Chauhan before the Allahabad High Court was dismissed and no investigations were ordered by the judiciary into the serious allegations. In fact, her services were terminated.

September 15, 2014

the plots in Noida. He said he was sending one Sunil Chaudhary with two application forms for allotment in the housing scheme. When CNN-IBN sniffed a news story here and planned to air it, Justice Chauhan got Swatantra Singh, the registrar-general, High Court of Judicature at Allahabad, to shoot off three letters on July 30, 2007, to the managing director of the channel, saying that he had not written three such letters and that they were all forged. Kapoor said he wished that Justice Chauhan’s stand had been true, but he had to prove irregularities to ensure the dignity of the judiciary was maintained. To buttress his allegations, Kapoor attached copies of the letter showing that application 152139, dated December 30, 2004, was in the name of Beena Singh, whose residential address was 474, Sector 15A, Noida. This, incidentally, was the residence of Justice Chauhan. The second application form, 0163503, dated December 31, 2004, was in the name of Raj Kumari, sisterin-law of Justice Chauhan. Both applications were filed on the last date of the scheme and did not carry the PAN number of the applicants. In the draw of lots on July 2, 2005, neither of these names got a plot. As the application carried his address, Justice Chauhan should have ideally withdrawn from hearing the writ of Kapoor challenging the cancellation of allotment after the draw. Instead, he chose to ignore the SLP of a successful allottee and heard a PIL filed by Manav Sewa Samiti upholding the cancellation of computerized draw. DIVERSE INTERESTS Interestingly, Justice Chauhan was a standing counsel for Noida Authority before he

was appointed judge. In 1979, he had got a plot—Plot No F-1 in Sector 6—in an auction for a cinema hall. The Noida Authority found that it was not a proper place for a hall and another site in Sector 5 was offered. Kapoor’s SLP said that Justice Chauhan managed to get allotment of Plot K-1 in Sector 18 for a cinema hall, but got it converted into a shopping complex in collusion with officials. “After the allotment in Sector 18, he should have surrendered the plot which he got in Sector 6. But the same was also leased to him by changing the user from commercial to industrial purposes and sold subsequently to Mirza Tanners Ltd,” the petition said. BY HOOK OR BY CROOK For execution of the lease deeds, Justice Chauhan formed a partnership firm, M/s Chaudhary Ajab Singh & Co., where he was one of the partners. According to a judgment on May 1, 1987, passed by the Additional District Judge III Ghaziabad, Justice Chauhan had procured a benami residential plot, Plot No 427 in Sector 15 A, which measured 456 square meter. The judgment observed that Justice Chauhan had got the lease deed of the plot executed in the name of the firm to avoid paying income tax and seriously reflected upon the conduct of the plaintiff. The judgment said: “He has admitted to have evaded income tax. This income certificate has no correlation with the disputed plot. The plaintiff has not been able to prove that he is the real owner of the disputed plot. He is, therefore, not entitled to the relief of declaration.” The CBI enquiry did not find anything out of order in spite of the fact that many of those who had been allotted flats were VIPs. Justice Aftab Alam of the Supreme Court at that time said that this application should not have been filed as it was in bad taste, being filed by a lawyer. Kapoor demanded a judicial inquiry into the conduct of Justice Chauhan, as he was associated with the allotments and chose to hear the case and cancel the allotment when he was not favoured. So why shouldn’t this case be probed too? Should the courts not have taken notice of it? In the eyes of the law, everyone is equal, but it seems some are more equal than others. IL

CASE STUDY/ delhi transport /corruption inquiry

A SCAM That Never Was

Anil Shakya

india has been rocked again and again by mind-numbing scams. but here’s a story that will gladden your heart By India Legal Team

T was a scam that never was. The Delhi Transport Department was alleged to have been involved in a `100 crore scam with a private company, contracted in 2006 to conduct fitness tests on commercial vehicles. It was also alleged that former Delhi chief minister Sheila Dikshit, then transport minister Haroon Yusuf and other transport officials were involved in the scam. But it turned out to be a “dud” scam, as a two-member inquiry committee instituted by Lt Governor Najeeb Jung last October revealed that there was no loss to the exchequer. The allegation was that Environmental Systems Products INDIA LEGAL September 15, 2014

CASE STUDY/ delhi transport /corruption inquiry

ESPIL says it was targeted by transport officials who stand to lose out, as the new technology eliminates the need for physical inspections by officials. India Pvt Ltd (ESPIL), a private company, part of US-based ESP Inc, which was contracted by the Transport Department, had collected crores in the name of conducting a “loaded mode emission” (LME) test without actually doing it. However, the committee, comprising of Justice (retd) Mukul Mudgal and bureaucrat Ramesh Chandra, found that ESPIL had not charged any money from vehicle owners for this test, but only for two other tests— “automated inspection & certification” (I&C) and “third party technical inspection” (TPTI). Moreover, the LME test was not mandatory, but had to be done only on 20 percent of vehicles, as the Transport Department wanted to collect empirical data. HONEST DEALINGS In its report on June 10 this year, the committee said: “Correspondence of ESPIL with the Transport Department, read along with the supplementary agreement, makes it clear that ESPIL had offered to install the LME setups and carry out LME tests free of cost. This is further established by the fact that the fee receipts issued by ESPIL illustrate that the money charged from the vehicle owner was for the automated I&C test and TPTI.” It said that it had arrived at the conclusion that no amount was ever collected from vehicle owners by ESPIL specifically for the LME test. Allegations of corruption were based on a case registered by the anti-corruption unit of the Delhi government in December 2012 against ESPIL. Subsequent raids led to the arrests of senior company directors, Nitin Manawat and PC Tamta, and some transport officials. The LG, however, refused to grant permission to prosecute transport officials and ordered that an inquiry into the issue. GLOBAL TENDERING So how did this multi-crore scam turn out to be a hoax? The report shows this in detail. In

September 15, 2014

1998, the Supreme Court, in the MC Mehta vs Union of India (UOI) judgment, had given a series of directions for control of pollution in Delhi. One of them required the Delhi government and UOI to set up automated inspection and maintenance facilities for commercial vehicles. Under the Motor Vehicles Act, all commercial vehicles in Delhi needed to undergo annual inspection and certification by a competent technical authority. However, manual inspection of a vehicle was not only considered slow, but unviable due to subjective views. To resolve the issue, the Ministry of Surface Transport advised the Transport Department to seek the assistance of Automotive Research Association of India (ARAI), a Pune-based NGO funded by the ministry. Initially, ARAI appointed ESP Inc as project consultant. Later, ESP was awarded the project itself by ARAI through global tendering. Delhi Transport Department was never made a party to this agreement. After the installation of two I&C lanes in Burari in July 2005, ARAI and ESP Inc were to operate and maintain them for a year, as per the agreement. But after July 2006, the equipment started breaking down frequently and was in immediate need of repair and maintenance. However, ESP expressed its inability to do so free of cost. After negotiations, the Transport Department and ESP agreed to sign a fresh contract in February 2008. The key terms of it were

that ESP should maintain and operate all the three automated I&C lanes and should be paid as per inspection fee rates under the Central Motor Vehicles Rules, 1989. In February 2011, the Transport Department entered into an agreement with ESPIL (and not ESP), whereby it would set up equipment to test LME free of cost, if it was allowed to carry out the TPTI test. The fees for the automated I&C test, LME and TPTI were worked out as follows: heavy commercial vehicle for `1,600; light commercial vehicle, `1,200; medium motor vehicle, `900; taxi, `600; and auto-rickshaw, `350.

When the allegations of corruption came up, LG Najeeb Jung refused to grant permission to prosecute the transport officials and instead instituted an inquiry.

PROTOCOL FOLLOWED? According to the report, in August-September 2012, the then motor license officer at Burari, Anil Chikara, for the first time, brought to the notice of the then commissioner of transport that the “LME test being conducted by ESPIL at Burari was not as per the required technical protocol”. An inspection of the facility was conducted and ESPIL representatives said there was delay in the installation of some equipment as the required civil works had not been completed. However, the LME test was being carried out partially. The committee found that the reason for delay in installation of machinery was not attributable to ESPIL. Civil works at the site was being done by an agency of the Delhi government at a very slow pace due to lack of funds, manpower and difficulty in procuring sanctions from various local authorities. The committee also found out that ESPIL charged fees for conducting two tests and not for the LME test. Moreover, the committee argued that the LME test was not mandatory, but only done to compile empirical data. Meanwhile, ESPIL alleged that the company was targeted by some transport officials, who were hand-in-glove with touts operating in granting fitness certificates for commercial vehicles. It alleged that technology eliminated physical inspections by officials and therefore, the transport inspector’s role was reduced to awarding certificates. Due to this controversy, which started in February last year, fitness certification of all commercial vehicles registered in Delhi is now again being done manually without any tests

The inquiry committee, with Justice (retd) Mukul Mudgal as a member, found that ESPIL had not charged any money from vehicle owners for the LME test.

for emissions, brakes, suspension, speed governor, speedometer and CNG safety. It violates the Supreme Court’s spirit that had directed the Transport Department to crack down on polluting vehicles plying in the capital. The committee further observed that though PPP (Public Private Partnership) is the flavor of the day, India did not appear to be mature enough for it. It said that even if there is a cost to the government, regulatory functions should not be outsourced to a private party unless measures are in place to ensure that accountability is not diffused. It said that automated I&C lanes should be run by the department (transport) by customizing new software with the help of National Information Center. The installation of more I&C lanes should be through open tenders. For once, it gladdens one to know that there isn’t another scam to drain the exchequer and cheat the common man, and that all is not rotten with the system. IL INDIA LEGAL September 15, 2014

FOCUS/ dgca rule /notice period clause

Grounding pilots’ flight a dgca directive has got pilots fuming, as they stand to lose their licenses if they don’t give six months’ notice before resigning and leaving for greener pastures By Shobha John

t’s a government directive that has pilots up in arms. The Directorate General of Civil Aviation (DGCA) has said that pilots who join other airlines without giving the mandatory six-month notice are liable to lose their license. Further, the DGCA has asked airlines to give it a list of such commanders and has issued a show cause notice to some of them. The DGCA is using a Civil Aviation Requirement (CAR) to curb these pilots. Section 7, Series X of CAR, which deals with flight crew standards, training and licensing, says: “It has been observed that pilots are resigning without providing any notice to airlines. In some

illustrations: Amitava Sen

September 15, 2014

cases, even groups of pilots resign together without notice and, as a result, airlines are forced to cancel their flights at the last minute. Such resignation by pilots and the resultant cancellation of flights causes inconvenience and harassment to passengers. Sometimes, such an abrupt action on the part of the pilots is in the form of a concerted move, which is tantamount to holding the airlines to ransom and leaving the travelling public stranded. This is a highly undesirable practice and goes against public interest.” It further says: “Such an action attracts provisions of sub-rule (2) of rule 39A of the Aircraft Rules, 1937, which reads as follows: The Central government may debar a person permanently or temporarily from holding any licence or rating mentioned in Rule 38.” This move comes in the wake of over 100 pilots quitting and joining international airlines in the last one year. UNFAIR DIKTAT The CAR has created a hornet’s nest, as pilots are questioning the unfairness of it all. “This is a free market and one can leave for better opportunities. On what basis will my license be cancelled? Legally speaking, a license can be cancelled only in case of an accident or incident,” says the commander of a private airline who didn’t wish to be quoted, fearing victimization. Another says that this restrictive directive is against labor laws. In fact, some pilot unions had even gone to court over this arm-twisting. It all started way back in 2005, with the launch of many private airlines, such as Kingfisher, Indigo, Go Air and SpiceJet. Pilots started getting poached from Air India, Indian Airlines and Air Deccan. Getting ready-made commanders is an attractive option for any new airline, as it doesn’t have to waste time on training them. For a person to acquire a commercial pilot’s license and then get a multi-engine rating, which allows him to fly commercial jets, the fees would be about `25 lakh. So a trained commander is an asset for any airline and most

If airlines want to remove an employee, only one month’s notice is required. And, as in the case of Kingfisher, they have not paid their pilots for months on end. companies pay them a salary of around `5-8 lakh a month. But with the opening up of the skies, things have changed. Foreign airlines such as Emirates, Etihad, Qatar Airways and Oman Air are dangling higher salaries in the range of `13-14 lakh for a commander. Further, the situation here is none too rosy, as many Indian carriers are struggling to survive, be it Air India, Jet or SpiceJet. With foreign pastures beckoning, pilots are known to leave without a no-objection certificate (NoC). “While foreign airlines are helping them get a local license, problems will arise if these pilots want to come back to India. Their flying licenses will no longer be valid and they’ll be at the mercy of the whims and fancies of the DGCA,” explains a senior commander. BREACH OF CONTRACT What has actually got the goat of the pilots is that if airlines want to downsize and remove an employee, only one month’s notice is required. “How fair is that? What’s sauce for the goose should be sauce for the gander,” says an aggrieved commander. “Do other professionals like doctors, scientists and lawyers

INDIA LEGAL September 15, 2014

FOCUS/ dgca rule /notice period clause

“Pilots can’t just abandon the ship” It was way back in 2005 when the DGCA started Civil Aviation Requirement (CAR) that created a furor. It stopped pilots from quitting unless a six-month notice period was given by them. The person who spearheaded this change was CAPTAIN GR GOPINATH, the father of low-cost aviation in India and founder of Air Deccan. He justifies his decision to SHOBHA JOHN: Why was CAR brought in? India is the only country to have it. In 2003, when Air Deccan began, many pilots were without jobs and were available to me. However, once Kingfisher, Go Air, Indigo and SpiceJet started, they started poaching my pilots, left, right and center. In one instance, an entire lot of 10 pilots left in one go, leading to flight cancellations. I even told Kingfisher’s Vijay Mallya: “This will bite you overnight.” It did, as his pilots later left for other airlines. I prevailed on the then aviation minister, Praful Patel, to stop this exodus, which is when CAR came into being in 2005. But employees have a right to look for better employment. That is true, but these are high-value assets and there should be some restriction on them leaving an airline in the

lurch. They cannot just abandon the ship without giving time for airlines to look for replacements. It takes about six months to train another commander. But DGCA didn’t act against airline managements such as Kingfisher, when service conditions changed, giving the impression that it works at their behest. Both managements and pilots should be fair to each other. And both should be protected. All airlines are saying is, give us six months’ notice. No one is stopping pilots from seeking greener pastures. Shouldn’t this directive have been removed when there was a glut of pilots and few jobs? Different circumstances call for different actions. For example, there have been times abroad, when pilots have had to

DGCA says pilots are resigning without providing any notice to airlines. In some cases, even groups of pilots resign together and airlines are forced to cancel their flights. have to give NoCs when changing jobs?” But what the DGCA has overlooked is that CAR is not applicable where the terms and conditions of employment have been altered or amended and there is a dispute in employer-employee relationship. It is a moot question as to what is “breach of contract” and how does a pilot explain this to a new employer. When Kingfisher Airlines was under financial crunch and employees were not given salaries, where was the DGCA, ask pilots. Those who were seeking jobs with other airlines were asked to get a NoC from Kingfisher, which they obviously couldn’t get. Malpractices by airlines are not taken so

September 15, 2014

eat grass, as there were so few jobs. When airlines faced bankruptcy there, promoters, investors and employees took salary cuts. But do you see that here? When AI was going through a rough patch, pilots were the first ones to strike till the government came down heavily on them. So there should be consideration from both sides.

seriously by the DGCA, allege pilots. “In the case of my company, we haven’t even been issued Form 16A this year, causing me to lose money to income tax. Why hasn’t the DGCA done anything about it,” asks one. Some companies have made pilots sign a bond and these are arbitrarily charged between `10-20 lakh. But there is the other side of the coin too. Airlines have, in the past, been aggrieved over the manner in which pilots have simply packed their bags and left, leading to flight disruptions and cancellations. But the situation isn’t the same now, so shouldn’t CAR be revoked? Also, when CAR was instituted, there was severe pilot shortage. Things are much better now, as there are more pilots in the market with Kingfisher’s collapse and more youngsters being churned out. The only way out of this turbulence in Indian aviation is to inject more professionalism on both sides. IL

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

INDIA L EGAL Who shot the collegium?

Sex and the judge

Phoolan: Killerâ&#x20AC;&#x2122;s comeuppance

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MY SPACE / manyata dutt

EVERY DAY A NIGHTMARE sanjay duttâ&#x20AC;&#x2122;s wife introspects how her husbandâ&#x20AC;&#x2122;s incarceration has made her aware of the true meaning of freedom

REEDOM is too abstract an idea to be defined accurately. The interesting thing about freedom is that it means different things to different people. But more importantly, different things to the same people depending on where they are in life. If it meant freedom from the British before Independence, it now may mean freedom to live life the way we want. For the poor, it may mean freedom from misery and poverty, while for the First World it may be freedom from the life they are living right now. On Independence Day, we rejoice in our freedom from foreign rule, or living in a free democratic society. But are we really free as a nation? Are we free as individuals living in a civilized society? As a woman trying to live the life she wants? Are our mindsets really free from prejudices, stereotypes, or racism? We may have attained freedom from the British, but have we unchained our mindsets

September 15, 2014

from years of dogma, our narrow views on religion, women, and cultural beliefs? How can we be truly free if our minds are still corrupted by archaic beliefs? Today we still live in a country where khap panchayats flourish, where women are not even free to use toilets due to the fear of being raped, and where there is no freedom to express their opinions. Never has breathing and being able to walk freely had so much relevance in my life till recently. With my husband incarcerated, I now realize the immense value of being able to walk freely. Freedom has taken a whole new meaning in my life, when I watch my husband behind bars, imprisoned, shut out from society, his family and his country. The initial months were spent trying to cope, understand and support him while he went through his days behind bars. But like they say, everything in life is meant to teach you something, and open your heart and mind to something you have never imagined.

Freedom has taken a whole new meaning in my life, when I watch my husband behind bars, imprisoned, shut out from society, his family and his country. It is during this phase that I have come across several people imprisoned for years for petty crimes and unable to get out of jail because they don’t enough money for bail. Some have committed simple thefts, some have been languishing for years beyond their actual quantum of punishment. Many are innocent but don’t have either money, the knowledge or support to fight, hire lawyers or even know the law. So are these people really living in a free country? Do they have the freedom from utter poverty, deep-seated ignorance or complete apathy of the society or the government?

housands of people, languishing behind bars, are still subjected to archaic British jail manuals and rules. The British wanted its prisoners, especially the freedom fighters, to not be treated as human beings. These manuals were written to torture them and wipe out any will they may have had to live. We still follow those

manuals. Prisoners are treated like animals and deprived of basic amenities. Today, every civilized society is looking at reformative jail system instead of punitive ones. The goal is to “repair” the deficiencies in the individuals and return them as productive members of society. But in India, the jail manuals are shockingly antiquated and the jails continue to adhere to the Prisons Act of 1894, whose aim was quite different. Amid all these realities, it sometimes becomes hard to believe that we are truly free. For me, freedom is not an absolute term, and complete freedom for all is a utopian concept. As long as we continue to live, we will have to keep fighting for freedom. Depending on which stage we are in life, we will have to strive for freedom. Nelson Mandela once said, “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” IL INDIA LEGAL September 15, 2014

PHOTO ESSAY/ endangered birds

ON THE LAST Look deep into nature, and then you will understand everything better â&#x20AC;&#x201D;Albert Einstein

Photo: Ningombam Brojendro Meetei

September 15, 2014

FLAP

numerous species of indian birds are critically endangered. only strict conservation laws can help them survive By Ramesh Menon

HEN birds disappear, there is a reason to be worried. After all, these winged beauties are the best indicators of how the delicate balance in our environment has gone wrong. Where have the nimble sparrows that used to perch on our window sills and balcony railings, chirping away joyously every morning, gone? What has caused their disappearanceâ&#x20AC;&#x201D;pollution, change in land use, urban concrete jungles, loss of green cover, poaching, overuse of pesticides or radiation from cell phone towers? The answer is a little bit of everything. Maybe, there are even reasons we do not know.

INDIA LEGAL September 15, 2014

PHOTO ESSAY/ endangered birds

The figures are distressing. In 2007, India had seven critically endangered species. In 2014, it rose to 15. Since 1977, about 1,00,000 vultures have disappeared in India. A 2012 survey of the sighting of sparrows by the Bombay Natural History Society (BNHS) showed that these were seen in fewer places than in 2005. Even in areas where they were still found, the numbers were lower and the nests, fewer. In fact, the latest Red List of the International Union for Conservation of Nature red-flagged how 173 bird species in the country were threatened. The colorful Bugun Liocichla from the North-east, which was earlier put in the category of “vulnerable”, has now entered the “critically endangered” list. TOXIC MENACE Sparrows feed on worms and insects. But excessive use of pesticides has turned our farms and its products toxic. That includes the creepy crawlies the birds feed on. This makes the future of sparrows even bleaker. Uma Nitali, an avid bird-watcher from Hubli, says: “It is so fascinating watching birds and their behavior. It is tragic that they are disappearing and it is a wake-up call. Imagine what a birdless city would be like.” Even vultures, seen as scavengers, are important for ecological balance. But they too are on the brink of extinction, worrying conservationists. The birds are dying of kidney failure after feeding on carcasses of cattle that

September 15, 2014

FADING AWAY (Clockwise from left, facing page) The White-backed Vultures are dying of kidney failure, since the carcasses they eat are laced with a banned drug, Diclofenac. Destruction of natural biodiversity is threatening the existence of the Bearded Vulture, Red Headed Vulture, Red Headed Falcon and the Himalayan Griffon.

The list of threatened bird species has been growing every year. Last year, the number was 165. This year it has risen to 173 and threatens to get worse. Some ways to protect and save the birds are: Ensure strict implementation of laws in protected areas such as parks and sanctuaries Protect and develop water bodies Create open green areas for birds to rest and nest Encourage organic farming so that pesticides do not kill birds or insects Promote community-based conservation of forests and sacred groves Highlight examples like communities in Kokkre-Bellur of Karnataka, who look after birds like Painted Storks Create greater awareness through nature education Involve all stake-holders to conserve remaining habitats Severely punish those selling or administering banned Diclofenac to cattle

INDIA LEGAL September 15, 2014

PHOTO ESSAY/ endangered birds

REGIONAL BEAUTIES (Clockwise from top) The Grey Pelican is found in Kokrebellur, Karnataka. The Ashy-headed Green Pigeon is confined to the North-eastern states, while the Andaman Teal, as the name suggests, is found only on the Andaman and the Great Coco Islands. Both Bugun Liocichla and Yunnan Nuthatch can be spotted only in Arunachal Pradesh.

have been administered Diclofenac, a banned non-steroid, antiinflammatory drug. But Indian pharmacies still sell Diclofenac, manufactured illegally. According to the Royal Society for Protection of Birds, the oriental, white-backed, long- and slender-billed vultures are at risk and their numbers since 1992 have shockingly dropped by 99.9 percent from millions to less than 11,000. One silver lining is that a new drug, Meloxicam, can replace Diclofenac for veterinary purposes. But one thing is clear: Unless the production of Diclofenac is stopped completely, the future of vultures will continue to be in danger. Besides the 173 birds on the threatened list, there are eight more, according to studies done by BNHS and BirdLife International. They include the Woolly-necked Stork, Andaman Teal, Andaman Green Pigeon, Ashy-headed Green Pigeon, Red-

September 15, 2014

headed Falcon, Himalayan Griffon, Bearded Vulture and Yunnan Nuthatch. The Woolly-necked Stork, although found in most parts of India, is disappearing. The Andaman Teal is found only on Great Coco Island and Andaman Islands. The Andaman Green Pigeon, endemic to Andaman and Nicobar islands, has only a couple of thousand members left. The Ashyheaded Green Pigeon is confined to North-eastern states. The Red-headed Falcon is rapidly declining not only in India but also in neighboring countries. MYRIAD HABITATS Bird lover Atul Sathe and manager at BNHS, says: â&#x20AC;&#x153;Indiaâ&#x20AC;&#x2122;s rich biodiversity has nearly 1,400 bird species, represent a myriad set of habitats, ranging from evergreen tropical, deciduous and alpine forests to grasslands, wetlands and deserts. Croplands

BIRDS OF A FEATHER (Clockwise from top left) Just a handful of 300 odd Narcondam Hornbill are left in the island of Andaman and Nicobar. The Siberian Crane found mostly in Russia and the Great Indian Bustard which populates India and regions of Pakistan are already part of the endangered species list. The Painted Stork named aptly so, is found in the Himalayan regions, extending into Southeast Asia. The Wooly-necked Stork, although found in most parts of India, is fast disappearing.

interspersed with natural habitats also serve as good bird habitats. But destruction of these breeding grounds poses a grave threat to the very survival of these species.” A 2013 report of the International Union for Conservation warned that endangered birds, including the Great Indian Bustard, Siberian Crane, White-backed Vulture and Red-headed Vulture, were declining. Apart from listing many bird species in Schedule 1 of the Indian Wildlife Protection Act, 1972, and banning bird trade in 1992, very little has been done. The focus has never been on birds. Asad R Rahmani, director, BNHS, says, “When the tiger disappeared from Sariska, there was national and international uproar, with the prime minister intervening. When the last bustard died in Karera Bustard Sanctuary in Madhya Pradesh in 1992, there was no one to cry.”

Former environment minister Jairam Ramesh had rejected a proposal by the Coast Guard to set up a radar surveillance system in Narcondam, a small island in the Andaman and Nicobar, as it threatened the future of 300 odd Narcondam Hornbill, an endangered species found only there in the world. But Prakash Javadekar, the new environment minister cleared it. Says Rahmani: “It is just a 6.9 km island and they could easily have built it elsewhere.” As India’s focus shifts to rapid economic growth, areas like conservation of birds might just get pushed under the carpet. There have been high-profile projects to protect the tiger and the elephant, but none to protect birds, despite India having some of the rarest winged creatures in the world because of its rich biodiversity. Will we be able to retain that honor after a decade? It’s a disturbing question. IL INDIA LEGAL September 15, 2014

PROFILE / raju tomer

The Brain an Indian-born stanford scientist has developed a high-tech microscope to view this vital organ in all its complexity

we perform neuroscience research. We can develop new technology that changes how we observe and interact with the circuits of the brain.”

By Deepa Gupta

NEW FRONTIERS Although there has been great progress in medicine, brain and mental illness treatments have not seen much development. There are diseases like cerebral palsy, Alzheimer’s, Parkinson’s and epilepsy which need to be understood in greater detail. Tomer’s research will help compare a normal brain with a diseased one to identify the structural basis of some diseases. He is currently collaborating with neurosurgeons and pathologists to use this technology for a deeper understanding of epilepsy and stress-related disorders. Dr Neeraj Jain, professor, National Brain Research Centre, Manesar, says: “Many diseases of the brain are due to abnormal brain circuits. However, our ability to decipher this circuitry was limited because we could not get a high resolution image of the inside of a brain without first cutting it into thin slices. The new advance makes the imaging process faster by illuminating it with a sheet of light, and not a point of light as is normally done. Imaging circuitry of the normal and diseased brain will help scientists understand the changes that take place at a single neuron level, and devise means to correct the effects of the abnormality.” Tomer first made news in 2010, while at the European Molecular Biology Laboratory (EMBL) in Germany. There, he developed a new technique called cellular profiling by

E has come a long way, all right. From staying in a single, rented room in Pilkhuwa town in Hapur district of Uttar Pradesh to being a scientist doing brain research at Stanford University, Raju Tomer, 31, has made a quantum leap in life through sheer hard work. This alumnus of IIT Delhi, along with his colleagues, recently developed an advanced microscope that allows three-dimensional imaging of the entire brain at the neuronal wiring level—a feat achieved for the first time. This will allow researchers to understand the working of the brain in unprecedented detail. His work was partly funded by Pentagon’s Defense Advanced Research Projects Agency (DARPA) and President Barak Obama’s multi-billion dollar Brain Research through Advancing Innovative Neuro-technologies (BRAIN) initiative. Justin Sanchez, a program manager at DARPA’s NeuroFAST program, reportedly told Defense One, an online website: “I absolutely believe this is going to transform the way we study the brain and how

Tomer has developed an advanced microscope that allows three-dimensional imaging of the entire brain. 66

September 15, 2014

Buster image registration (PrImR), which enables scientists to investigate a large number of genes in the brain. Earlier, cell types were determined according to their shapes and locations, not genes. This discovery received wide publicity and Discover Magazine selected it as 12th among top 100 research stories of 2010. A year later, at Janelia Farm Research Campus in Washington DC, Tomer and colleagues built a new imaging technique to trace the division patterns of all cells in a developing embryo. HUMBLE BEGINNINGS While he is much-feted now, Tomer still remembers his childhood in Kherki Patti village in Meerut, and then, in a small town called Pilkhuwa, where he did his early schooling and lived in a single rented room. Later, his family moved to Ghaziabad, where he studied till senior secondary. “I was an average student,” maintains Tomer. “But I was always good at mathematics”. It was when he topped the class X board exams that he realized his potential. “I realized that only hard work pays. I spent my senior secondary years preparing for IIT-JEE. My parents could not afford any coaching for me, which was a blessing in disguise. I started self-learning—an important ingredient to excel in science”. After that, there was no stopping him. He says: “As far as I remember, I always wanted to be a scientist. I enjoyed solving tough problems in mathematics and physics and actively looked for problems that would challenge me. IIT, in that sense, exposes you to new ideas and possibilities.” But his days at IIT were hard, as his family suffered a financial crisis. Tomer started giving private tuitions to help his family. Today, he reminiscences: “My father was instrumental in my

Legally speaking

success. Despite lack of resources, he did whatever he could to make sure I got a good education. He was a bit harsh in forcing us to study when we were kids, but that was for our good. He recently passed away, leaving a big void in my life.” With dual degrees in biochemical engineering and biotechnology, this MTech engineer then went on to do PhD at EMBL. His PhD research was on the evolution of the brain and today, he is totally immersed in the subject. “I want to understand how our brain works, arguably one of the toughest questions in science,” he says. But reaching this far hasn’t been without embarrassing moments. When he was in his IIIrd year at IIT-Delhi, he took his first trip abroad for summer internship at the University of Toronto, Canada. Though he had working knowledge of English, he had trouble understanding the Canadian accent. “At the Toronto airport, I was asked something by a lady at the customs. I replied something and before I knew it, she almost yelled at me. I managed to calm her and explained my difficulty with the language. Culturally, it was a bit of a shock at first.” Of course, today, he is adept at the language and an expert in his field. IL

THE fast pace of technology has thrown up challenges for regulators, who have to see that there is no misuse. Biological sciences are also experiencing a similar pace of development. For example, new gene editing technologies such as clustered regularly interspaced short palindromic repeats (CRISPR) are promising exciting capabilities for the repair of genetic makeup of cells to treat diseases. Rapid advances in neuroscience are making machine-brain interface a reality. And researchers are beginning to grasp how to decode dreams by capturing brain activity. All these developments raise ethical questions on how and when to allow their use and studies are now underway to understand the implications.

INDIA LEGAL September 15, 2014

SPORTS/ sania mirza

WO missed opportunities still trouble Sania Mirza. Seeded sixth, she and her doubles partner Cara Black of Zimbabwe led the Italian top seeds Sara Errani and Roberta Vinci 4-1 in the final set of the quarterfinals at the Australian Open in January, this year. The match was in their bag. Inexplicably, Mirza and Black dropped their guard. Errani and Vinci reeled off five games to win the set 6-4, match, and finally the Grand Slam title. A few months later, on the red clay court in the French Open, Mirza and Black met the

YOU ARE MY SANIA! two years ago, she took a crucial decision—to play only doubles. and today, the tennis ace has reached her career-best doubles rank of number five By Gaurav Kalra 68

September 15, 2014

Chinese pair of Su-Wei Hsieh and Shuai Peng in another quarterfinal match. And lost another three-setter; this time too, Hsieh and Peng went on to win the women doubles’ Grand Slam title. While these two defeats still rankle her, Mirza is not too perturbed with her performance in 2014. She and Black have won doubles titles in Estoril, Portugal, and reached the finals of three other events at Indian Wells, Stuttgart and Montreal since the start of the year. And a career-best doubles ranking of number five is something to feel happy about. “This success goes back to the time I decided to give up singles and switched to playing only women and mixed doubles. I thought my body couldn’t take the gruel of singles. At that point, I wasn’t sure if it was the right decision or not but the subsequent success implies that it was,” explains the tennis star. Mirza decided to focus on doubles in the middle of 2012 at the age of 25; it was a decision that surprised many. Until then, constant injuries had forced her to undergo three surgeries. She recognized that too much play could prematurely end her career. “I had played singles and doubles, finished seven out of eight years in the top 100, and achieved a lot,” she recounts. Taking stock of her

career graph, Mirza says: “I have no regrets about my singles career. I am only the third person in India to have been in the top 30. Would I have liked to be in the top 20? Of course, as a tennis player you can’t be satisfied. But I can’t call my singles career a disaster because I didn’t make the top 20.” In 2013, which was her first full season as a doubles player, Mirza broke into the top 10 rankings. But the surge to the top five began in 2014, when she teamed up with Black, a multiple Grand Slam champion. Besides being a calming influence on the court, the 35-year-old Zimbabwean compliments Mirza’s game. “She plays an old school-type game. She serves and volleys, returns and volleys. I play an opposite game (baseline one). I hit big strokes off the ground, and so I can set her up to play winners. This has been one of our strong points. Because we play so differently, it is hard for our opponents to get into a rhythm,” reveals Sania.

lack and Mirza have reached the quarterfinals of all the events the duo played this year, except Wimbledon, where they lost in the second round. “Black took a break to have a baby, so she’s in a different stage of her life. She has been around longer than I have, so it’s great to have her on my side,” says Mirza. Although Mirza is yet to win women doubles Grand Slam title, she has won two mixed doubles Grand Slam titles. She reached the finals of the 2011 French Open women doubles, but lost. “Cara and I are one of the best teams. Our results show we are close to winning a Grand Slam; it will be great to win one,” says Mirza, who is competing at the US Open. A symbol for women’s sport. Mirza seems to be the lone Indian woman in global tennis. Despite her accomplishments over the last decade, no other woman has created as much as a minor ripple on the world circuit. Mirza blames the “system” and explains that the tennis players, who have succeeded, have done it despite the system and through their own efforts “with help from parents.” Thanks to the tennis academy she runs in Hyderabad, Mirza understands the problems. “Physically, tennis has changed in the last 5-6 years and that’s one of the reasons we don’t get players from here. We work on our fitness when we are 14-15 years old, and we are always play-

UNI

ing the catch-up game. Children in Europe and America work on the physical aspect from the time they are six years old,” she says. India’s tennis icon bemoans the fact that the interest generated by her success seems to have dissipated. “Today, there are 60-70 kids playing with me, but they do the wrong things and don’t understand the dedication that is needed.” But at the same time, Mirza is pleased that many Indian sportswomen have made an impression on the world stage in the recent years. “Even as a 15-16-year old, I hoped some girls would pick up a sport and do what they love. I hope I have been able to inspire some to believe they can be professional athletes. They don’t have to be a teacher or a doctor or something that is socially more acceptable.”

LETHAL COMBO Sania Mirza (left) and Cara Black during a practice session

irza has always grabbed headlines for all the wrong reasons. She remembers with amusement the outrage sparked off by fundamentalist elements over the T-shirts she wore. “It was silly and I had to learn how to deal with it. I was 17. When most girls deal with how to bunk classes in college, I dealt with people questioning me for everything. It was hard and my support system of parents, family and friends was good,” she says. Though 27, Mirza hasn’t lost her verve or zest. She is older, mature but still vivacious like the precocious teenager who first burst onto the tennis scene. “You have to enjoy the struggle, pain, torn muscles. If you don’t, it’s not worth it. In India and Asia, we have a social view of what a girl should do. It’s not about fighting this mindset, but being who you are.” IL INDIA LEGAL September 15, 2014

GLOBAL TRENDS/ human rights/the us

PREACHER’S FOLLY for a country that teaches the world what is right and wrong, the us is not above board in human rights By Shashikumar Velath

TRIGGER-HAPPY (Above) CCTV footage of the incident which led to Michael Brown being shot in Ferguson, Missouri; (facing page) Brown’s parents at his funeral service in St Louis, Missouri, on August 25

September 15, 2014

ERGUSON in the mid-western state of Missouri, United States, resembles a conflict-ravaged town, metaphorically much like the Basras, Herats, Baghdads and Kabuls that the world’s leading democracy has left behind. A cloud of human rights crises has enveloped the US and when it lifts, it will be hard for Washington to bridge the gap between what it preaches and practises. A dry heave of violent protests has convulsed through Ferguson after an 18-year-old unarmed black teenager, Michael Brown, was shot six times by a police officer. A community uprising has run headlong into a police force, uninhibited in its approach of countering protests with a violent crackdown. The US has lectured governments across the world to uphold and respect human rights of individuals and communities, but is falling short of the standards it sets for others. The stories and images of police brutality streaming out of Ferguson has put global spotlight on

United States’ record on race and policing. Human Rights organizations have questioned the “heavy-handed crowd control tactics, including tear gas and rubber bullets.” Meanwhile, even as the National Guard is deployed in Ferguson, the US record on race is being reviewed and debated on a global stage at the United Nations in Geneva, Switzerland. The Committee on the Elimination of Racial Discrimination is hearing concerns on racial bias reported by non-governmental organizations to the committee. Amnesty International USA’s executive director, Steven W Hawkins asserted: “We must make it clear to authorities at the federal state and local level—and to the rest of the world—that we won’t stand for the death of one more black man at the hands of police.” All countries must desist from using excessive force to quell protests. Police forces must adhere to international standards on the use of force and firearms. People must be allowed to peacefully exercise their right to freedom of expression and journalists must not be prevented from carrying out their work. In Ferguson, the US, land of freedom, opportunities and rights, has found itself short on all these internationally accepted standards. Global media and more so media in the Global South, especially in domestically-consumed countries like India, have hardly done anything to highlight the human rights record of the United States. The shocking human rights record of US on its detention facilities in Guantanamo Bay has received sparse media attention in India. The US record on rendition, secret detention and torture of alleged terrorism suspect has hardly ever made it to front page news or prime time television news. Recently, the

European Court of Human Rights found that the Polish government colluded with the US Central Intelligence Agency (CIA) to establish a secret prison at Stare Kiejkuty, which operated between 2002 and 2005. At the site, 180 km north of Warsaw, detainees were held in secret detention and tortured. The US ran an illegal network of “black sites that were used to secretly detain and torture individuals rounded up in counter-terrorism operations,” said Julia Hall, Amnesty International's expert on counter-terrorism and human rights. The face of the US as a human rights offender is rarely visible in the media of the South. That’s the reason why compelling stories of Abd al-Rahim al-Nashiri and Zayn al-Abidin Muhammad hardly find space in Indian media. Both lodged their cases with the European Court in 2011 and 2013, respectively. Both are being detained at the US Navy’s Guantánamo Bay detention facility in Cuba. The first is Abd al-Rahim al-Nashiri, a Saudi Arabian national, alleged to have masterminded the bombing of USS Cole off the coast of Yemen in 2000. He has claimed that he was questioned in a secret facility in Poland and subjected to “enhanced interrogation techniques” and other human rights viola-

tions, such as “mock execution” with a gun and threats of sexual assault against his family members. Al-Nashiri faces a capital trial by a military commission in Guantánamo. The second, Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, a stateless Palestinian born in Saudi Arabia, is also believed to have been held in Poland, where he says he was subjected to extreme physical pain and psychological suffering. Former US President George W Bush asserted in his 2010 memoirs that he authorized the use of “enhanced interrogation techniques,” including “waterboarding”–mock drowning–against Abu Zubaydah in a secret CIA detention. The US authorities have yet to charge Abu Zubaydah with any crime, more than 12 years after taking him into detention. There has been no accountability in the US for the torture and disappearances attendant to the secret detention programs. In 2012, Amnesty International had campaigned for the arrest and prosecution of George Bush because of clear evidence that he was accountable for crimes under international law, including torture. IL

Ferguson mayhem Micheal Brown, 18, was shot multiple times by St. Louis County Police officer Darren Wilson. The police were responding to a robbery call at the Quick Trip convenience store outside which Brown and his friend were walking. People were outraged at the officer’s brutality and came on to the streets to protest. A candlelight vigil kept in Brown’s honor went astray with people being looted and vandalized, prompting authorities to close schools next day.

The author is deputy CEO of Amnesty International in India INDIA LEGAL September 15, 2014

GLOBAL TRENDS/ sexual assault /the us

CHOOSING DEATH OVER HUMILIATION Lizzy Seeberg, who committed suicide a few days after complaining of sexual assault by a football team member of Notre Dame

Too little, too late Why are us colleges going slow in dealing with campus sexual assaults? By Abbie Nehring, ProPublica

URING their time at college, the Department of Justice estimates one in five women will be sexually assaulted, and as many as 95 percent of the cases go unreported. So how are colleges failing to protect students from sexual assault? We sorted through the reporting to highlight a few cases that show the system’s greatest shortcomings. Lizzy Seeberg committed suicide ten days after reporting to Notre Dame campus police

September 15, 2014

that she had been sexually assaulted by a Fighting Irish linebacker. As news of the allegations spread, Seeberg was threatened by the player’s teammates. “Don’t do anything you would regret,” one texted her. “Messing with Notre Dame football is a bad idea.” The campus authorities didn’t interview the accused player until 15 days after receiving Seeberg’s statement, five days after she committed suicide. The police declined to bring charges and Notre Dame declined to discuss the case when it was first reported. Since 2010, there have been investigations into rape and sexual assault by football players at the University of Missouri, Baylor College, the US Naval Academy, University of Texas, Vanderbilt, Appalachian State, and numerous others. And officials have frequently faced scrutiny for their response. When a freshman at Florida State University reported that star quarterback Jameis Winston had raped her, the case was kept under wraps until TMZ broke the news. The New York Times later detailed how authorities failed to promptly investigate even though records show that the athletic department knew about it less than a month after the victim came forward. The university declined to speak to the Times about the case, citing privacy laws. In another case, a panel at Hobart and William Smith colleges in upstate New York quickly cleared three football players of a complaint brought against them by a freshman named Anna. Records of the case obtained by The New York Times showed that the football players lied to campus police at first, and then gave a story that did not align with evidence collected in Anna’s medical examination. Yet because colleges usually keep those proceedings confidential to protect students’ privacy, the public is kept mostly in the dark about what happens in a sexual assault hearing. Officials at Hobart and William Smith told the Times they have “no tolerance for sexual assault.” They also declined to answer specific questions, citing privacy laws. ONLY A SLAP ON THE WRIST In a case that unfolded at Indiana University in 2006, a disciplinary panel concluded that a student named Margaux had been the victim of “inappropriate sexual contact.” Their chosen

punishment? Banning the assailant from campus for the summer. After Margaux appealed the decision, the university eventually extended the suspension to a full year. By that time, Margaux had already dropped out to avoid being on the same campus as her assailant. A joint investigation by NPR (formerly National Public Radio) and the Center for Public Integrity (CPI) into Margaux’s case and other college sexual assault hearings across the country found a common pattern. Sexual assault hearings have resulted in one-month suspensions and even essay assignments. Indiana University defended its suspension of the student who assaulted Margaux. “We’d like to think we can always educate and hold accountable the student,” a dean told CPI. A WORLD WITHOUT TITLE IX Patrick Henry College, a rural evangelical institution in northern Virginia, offers a window into what life is like without the protections of Title IX, which outlaws gender discrimination on college campuses. In order to remain exempt from that law, the college turns down federal funding. In an investigation published in The New Republic, Kiera Feldman looked into the cases of several young women who dropped out of Patrick Henry after reporting being sexually assaulted by fellow students. Title IX requires colleges to have a procedure for handling harassment and sexual violence complaints and to take immediate action to ensure that victims can continue their education free from harassment or retaliation. Instead, Feldman reports, a student named Sarah and her accused assailant both received “growth contracts”, which mainly involved weekly counseling sessions, during which Sarah read aloud passages from evangelical women’s self-help literature. In response to the story, the college released a detailed statement: “Our foremost concern has always been to protect and nurture all our students.” TAKING A UNIVERSITY TO COURT When students believe their cases have been mishandled, they can file a Title IX complaint. That’s what students have done this year at Occidental, University of California at Berkeley, University of North Carolina, Dartmouth,

So many sexual assault victims have filed complaints that there are now 71 schools under federal investigation for Title IX violations across the country. Swarthmore, University of Southern California, and dozens of other schools. So many sexual assault victims have filed complaints that there are now 71 schools under federal investigation for Title IX violations across the country. knowyourix.org, a site set up by advocates, lays out how you can file a complaint. Five University of Connecticut students, who believed the school hadn’t properly handled their sexual assault complaints, took it a step further and filed a federal lawsuit in October 2013. UConn President Susan Herbst said their allegations—that the university neglected their cases—were “astonishingly misguided and demonstrably untrue.” The case was settled outside of court this month for $1.28 million. UConn did not admit to wrongdoing and says it follows Title IX regulations in handling sexual violence on its campus. IL

DISTRESS SIGNAL A protest against the lackadaisical attitude of authorities in the Lizzy Seeberg suicide incident

—Courtesy ProPublica INDIA LEGAL September 15, 2014

TRENDING/ learning softwares

AN APP FOR

as parents allow their toddlers to play with ipads and tablets, experts question the wisdom of allowing them to do so

By Shobha John

ivek Jain watched in amazement as his son, two-and-a-half years old, took his iPad, put it on his lap, touched the screen and opened various apps with practised ease. One minute his tiny fingers opened an alphabet app, the next minute they flew to an app for nursery rhymes. As he hummed and swayed to the music, his father, a Mumbai-based investment banker, was just glad the device kept the little tot occupied for the next hour or so. “My son started using the iPad when he was two years old,” says Jain. “He automatically knows how to operate it. It is good mental stimulation, as his fingers and eyes are constantly moving. I had previously given him a nursery rhyme book, but he tore it apart.” Similarly, Nimi Khanna, a Delhi housewife, gives her tablet to her fussy three-year-old when

September 15, 2014

BABY EINSTEIN

she is busy with household chores. “Various apps keep my daughter busy. I also allow her to use it during journeys so that she doesn’t disturb others around her.” DIGITAL IMPACT While the use of mobile devices such as tablets, iPhones and iPads is no longer a novelty in this digital age, experts are questioning their increasing use by young children. Many of the apps are free, be they educational ones to teach alphabets, numbers and shapes; those with television characters; game apps like Angry Birds or art and music apps. Parents, in their enthusiasm to get children attuned to modern technology, are allowing them to use their devices, but could be doing more harm than good. A 2013 study by San Francisco-based Common Sense Media found that 38 percent of children under two years use tablets or smartphones, up from 10 percent in 2011. There are concerns about how this will affect a child’s mental and social development and creativity when there is no human interaction and hands-on learning. Is the simulated environment offered by these gadgets as good as face-to-face interaction? Last October, the American Academy of Pediatrics warned parents that adolescents should have no more than 1-2 hours of screen time per day and children below two shouldn’t be allowed any at all. It said there was no such thing as educational programming for young children. But the fact is that these apps have got children hooked. Colorful apps with animation and audio recording, which leap out of the screen upon a mere touch or swipe, seem so much more attractive than painstakingly building blocks or learning alphabets with paper and pencil. Easy come, easy go. And toy companies are cashing in on this spurting interest for baby apps. One of them, Fisher-Price, marketed the “iPad Apptivity Seat” and got quite a backlash. It is a cushioned bucket seat with a built-in extension arm and case that holds an iPad inches away from the baby’s face. The visual display is meant to stimulate the baby. But doctors and parents reacted with horror at the company’s disregard for infants’ well-being. Some said

babies should be stimulated by human interaction that engages the five senses. Finally, the company acknowledged the difficulty of navigating this brave new world. The effects of screen exposure on babies was borne out by studies done by Patricia Kuhl, co-director of the Institute for Brain & Learning Sciences at the University of Washington and an expert on the impact of early language on young brains. In a research paper, “Foreign-language experience in infancy: Effects of short-term exposure and social interaction on phonetic learning”, Kuhl and two others said: “Research has shown that babies learn new language through human interaction and not through listening to audio (through headphones) or watching and listening to TV. The social brain must be active for children to learn new sounds and language.” GROWING CONCERN It is no wonder that learning apps for babies have invited strong criticism. Fisher-Price’s hugely popular “Laugh & Learn” mobile apps may have been downloaded over 3 million times but that didn’t stop the Boston-based Campaign for a Commercial-Free Childhood (CCFC), a non-profit group, from filing a complaint with the Federal Trade

There are concerns that sexcessive use of technology will affect a child’s mental and social development when there is no human interaction and hands-on learning. INDIA LEGAL September 15, 2014

TRENDING/ learning softwares

A for apps Findings of a study, “Zero to Eight: Children’s Media Use in America, 2013” by Common Sense Media, a San Francisco-based non-profit organization, among 1,463 parents with children under eight: 38 per cent of children under 2 use mobile devices like iPhones, tablets or Kindle This was the same percentage two years ago for children 8 years and under 40 per cent of families own tablets; that’s up from 8 per cent two years ago 7 per cent of children have their own tablets Children under 2, on an average, spend an hour a day in front of screens — watching TV, using computers, viewing DVDs, playing with mobile apps Children between 2-4 years spent two hours a day, and 5-8 years, spend two hours and 20 minutes

Commission in 2013. “The baby genius industry is notorious for marketing products as educational, when in fact there is no evidence that they are,” says Susan Linn, director, CCFC. Years earlier, it had filed a complaint against “Baby Einstein”, popular videos for infants by Walt Disney Company, which had to refund consumers who bought the product. Nonetheless, the market for apps for small kids is there and Indian companies are developing and marketing them. One is Redbytes Software Pvt Ltd, a Pune-based company. Altaf Rehmani, its founder-director, says that every parent desires to make his child smarter. “These apps are another tool in the parenting arsenal. They have been used in developed countries and now, are gradually coming to Indian preschools and nurseries. This technology is environment-friendly and provides for easy interaction. This trend is hard to resist and is here to stay,” he predicts. Redbytes Software has a brand called Tinytapps, which produces learning content for toddlers. It covers a wide range—from

September 15, 2014

alphabets, numbers and rhymes to safety and environment. The most popular ones, says Rehmani, are nursery rhymes, Arabic alphabet and Panda math. Rehmani says it’s a known scientific fact that 90 percent of brain development takes place in the first five years and this includes the ability to learn and grasp things. Apps aid this process, he says. Then, there is Chandigarh-based Net Solutions, which too makes apps for children below three years. Rohit Dogra, manager, digital marketing & business development, says that more than 50 per cent of kids between 2-4 years have access to mobile devices and even very young children are able to use touchscreen devices with speed and ease. What makes many of the apps popular, says Dogra, is that they are highly userfriendly. “Touchscreen devices quickly teach children the link between a cause (a touch) and an effect. Therefore, kids take to them easily,” he says. What’s more, they are less cumbersome than a desktop PC as there is no keyboard or mouse.

pps by Net Solutions include TalkTommy, an educational app for toddlers and WinZilla, a gaming app. Talk-Tommy, says Dogra, is a free iPad App. “When you tap on the pictures, they get enlarged and an audio plays along, pronouncing the name of the object in the picture. WinZilla Trivia is an iPhone-, iPad-, and iPod touch-based app that includes three games developed after decrypting ancient cave drawings discovered in subSaharan Africa.” However, even app developers insist that parents should not substitute real learning for an app. “A right mix of hands-on teaching and an app-based one can help accelerate pre-school learning. Just like soft drinks can’t be a substitute for water, an app can’t be and should not be a substitute for traditional methods of learning,” says Dogra. As prices of these hardware keep dropping, says Rehmani, tech devices will eventually be part-and-parcel of schools. In the process, will these little geeks lose their human touch? IL

INTERNATIONAL BRIEFS

Breather for immigrants US PRESIDENT Barack Obama is planning to make key changes in the US immigration system, after business groups and advocates forwarded their recommendations to ease immigration laws. If the proposals see the light of the day, securing a US visa would become easier. It would also shorten the green card line for those who get sponsored by their relatives—something that can currently take up to 25 years. Obama’s aides have already had about 20 meetings with business heads and other interest groups. A decision on this could be taken sometime in September.

Bill for sperm donors, surrogates KEEPING PACE with the changes in reproductive technology, a bill concerning the rights of sperm donors and surrogates has been introduced in California. It would require them to fill a series of forms detailing parental rights and responsibilities of the donor or surrogate mother involved before conception. Recently, actor Jason Patric, who donated his sperm to a former girlfriend, sued her for being denied the right to be part of the child’s life. Under the current law, sperm donors do not typically have parental rights unless otherwise agreed by the parties involved.

Loca in copyright soup COLOMBIAN POP star Shakira’s Spanish version of Loca, featuring El Cata, came under the scanner when US judge Alvin Hellerstein said it infringed on a song by Dominican singer Ramon Arias Vazquez. The song, which topped Billboard Magazine's Latin charts, was based on an earlier version of a song recorded by El Cata that again was copied from Arias Vasquez's original song Loca con su Tiguere. Though the song has two versions, one in English and the other in Spanish, the copyright lawsuit has taken note only of the Spanish version.

Strengthening domestic violence laws UK HOME SECRETARY Theresa May launched a consultation to strengthen the existing domestic violence law by bringing psychological abuse under its purview. This move can result in emotional and psychological abuse in relationships being given the same status under law as physical abuse. Since the damage inflicted by such abuse is often overlooked, the move has been welcomed by many involved in campaigning for the cause. However, there are many who feel that these are just baby steps being taken by the government in terms of acknowledging different facets of abuse that women face on a daily basis.

Helmet trouble for Sikhs ONTARIO PREMIER, Kathleen Wynne is not a popular name among the Canadian turban-wearing Sikh community. The reason is her refusal to grant the group exemption from wearing helmets under the country’s motorcycle law, which makes wearing helmet mandatory. The Canadian Sikh Association had been working with the liberal government and Wynne on this issue since 2011. However, after careful deliberation, the government decided against giving such an exemption. They concluded that wearing a safety headgear didn’t infringe on religious rights and not doing so would pose a safety risk. INDIA LEGAL September 15, 2014

CONSUMER WATCH

How can buyers enforce their rights and seek remedial measures Terrace rights DISPUTES related to terrace space among residents are not unheard of. But what happens when problems escalate to cause inconvenience to residents? Two companies, Birla Infrastructure Ltd and Lakshmi Properties Ltd, were directed by the Mumbai consumer forum to pay up `1.25 lakh to residents of a Juhu building for displaying advertisements and putting up hoardings on their open terrace. The forum said that the open terrace of a building is the joint property of residents, and not adhering to the rule violates the Maharashtra Ownership of Flats Act. Illustrations: Udayshankar

Delivery woes

Gratuity row

INSTANCES of courier companies not delivering consumer parcels on time are quite common. But the firms always get away with it due to the fine print of terms and conditions. However, Desk to Desk Courier and Cargo Ltd had to pay the price after it failed to deliver a consignment in Bangalore for Ishwar, a proprietor of an optical store in Chennai. A district consumer disputes redressal forum in northern Chennai fined the company `27,000. It also asked it to refund `71,862, the value of the goods.

CAN gratuity cases be taken up by consumer forums? The Mumbai suburban district consumer disputes redressal forum held it can, so long as the case pertains to the point of gratuity. Vipin Dwivedi’s company, Godrej Consumer Products Ltd, did not pay gratuity after he had resigned. Dwivedi had put in 25 years for the company. And the gratuity amount was a staggering `2.21 lakh. After waiting for many years, Dwivedi sought the help of the district consumer forum, which asked the company to pay the gratuity amount and `1.43 lakh as compensation for the 13-year delay. The company argued that since Dwivedi had resigned, he no longer fitted into the definition of a “consumer”. It claimed that Dwivedi was denied gratuity for illegal gratification due to which the company suffered losses to the tune of `8 lakh. Godrej Consumer Products Ltd also questioned the right of the forum to decide on gratuity cases. However, it could not produce any evidence of action taken against Dwivedi after he quit. The case was decided in Dwivedi’s favor.

Illustrations: Udayshankar

September 15, 2014

Insurance claims THE Supreme Court (SC) recently ruled that disease or infections due to accident are also entitled for claim under the accidental insurance policy. Sandeep Chourasia, who was covered under one such policy, lost his right-eye vision and suffered severe loss of hearing in both ears due to an accident. A claim for the same was rejected by the insurance company, which ruled that Chourasia had these disabilities before the accident. Interestingly, this stand was supported by the state and national consumer forums. However, documents provided by the hospital, where Chourasia was treated, proved otherwise. Based on the evidence, the SC asked the company to pay `7 lakh along with six percent interest to Sandeep.

Defining ‘service’ THE National Consumer Disputes Redressal Commission has ruled that the service rendered by a tailor is covered under the term “service” under the Consumer Protection Act 1986. AC Modagi had given a pant piece to a tailor for stitching, but found the garment shapeless and tight fitting. Despite repeated alterations, Modagi was not satisfied and demanded compensation. When the tailor refused, he filed a consumer complaint with the Belgaum District Forum which affirmed the deficiency in the tailor’s services and ordered him to pay `565 with a 12 percent interest and `100 as cost of proceedings.

Sacrosanct judgment CHALLENGING the decision of consumer forums can sometimes prove counterproductive if one goes by what happened with builder Shreenath Corporation. The Mumbai District Consumer Forum, finding poor construction, had asked it to pay compensation after a residential building collapsed in the city in 2002. However, the builder appealed against the judgment in the National Disputes Redressal Commission. The commission ordered him to shell out extra money (other than the amount for filing charges) for seeking an interim stay on the forum’s judgment. The builder then approached the Supreme Court questioning the commission’s order. But the court turned down his plea by saying that the commission was well within its rights to ask for additional money.

Misuse of power THIS is a case that should interest those running commercial ventures from their residence. Dr Ashok Kumar was running a diagnostic clinic from his house. But he had applied for an electricity connection under domestic category. But the executive engineer of his area sent him a notice that he needed to pay electricity charges under the commercial category. Kumar took the matter to the consumer forum. The forum however, ruled that Kumar could not claim for power charges under the domestic category as he was already operating a clinic from his house. It categorically stated that running a clinic was a commercial activity. The forum clarified that just as lawyers operating from their residence had to pay commercial charges for power, the same applied to clinics run by doctors.

INDIA LEGAL September 15, 2014

IS THAT LEGAL?

Relationships of convenience

The fair sex has it easier

A number of public figures have multiple wives. Why are they not in prison for bigamy? Under Indian law, it is illegal for anyone who is not a Muslim man (since Muslim personal law allows up to 4 wives) to contract a second marriage while their spouse is alive. Only after the death of the first spouse or the annulment of the first marriage can an individual marry again. Under Section 494 of the Indian Penal Code, marrying again during the lifetime of oneâ&#x20AC;&#x2122;s wife or husband is punishable with up to seven years of imprisonment, or fine, or both. Moreover, such a second marriage is void and not recognized by law. However, this is a non-cognizable offense, and a case can only be registered when the aggrieved person, i.e. the first wife, lodges a report. In case of an understanding between the first wife and the husband, whereby she agrees not to bring up such a case, a bigamous husband cannot be prosecuted. This is why people, including notable film stars and politicians, continue to have bigamous arrangements. Many convert to Islam to be able to marry more than once, without filing for divorce. But the Supreme Court, in Sarla Mudgal vs Union of India case, held that if a man, who has adopted Islam and renounced Hindu religion, marries again without taking divorce from the first wife, his marriage will not be considered legal.

A husband finds his wife in a compromising position with her lover after returning early from office one day. Can the husband file a case of adultery against his wife under the Indian Penal Code? The Indian Penal Code (IPC) defines the offense of adultery under Section 497, which states that sexual intercourse with the wife of another man without the consent or connivance of that man is adultery and may attract imprisonment up to five years or a fine, or both. However, unlike adultery laws all over the world, in India such an offense cannot be made out against a woman. A man cannot lodge a criminal case against his wife for adultery, but can do so against the man with whom she had such illicit sexual relations. A similar question arose before the Supreme Court in W Kalyani vs State Tr Inspector of Police & Anr.

Illustrations: UdayShankar

September 15, 2014

While disposing the appeal, which was filed against the order of the Andhra Pradesh High Court, a bench comprising Justice Aftab Alam and Justice RM Lodha said that from a plain reading of Section 497, only a man can be proceeded against and punished for the offence of adultery. The mere fact that the appellant is a woman, makes her completely immune to the charge of adultery and she cannot be proceeded against, even though she might

Chance riches I am usually broke at the end of the month. Luckily, I found a wallet with `2000 in it. The wallet also has the office Photo Id of the owner. But I am in dire need of money. Is it legally tenable to keep the wallet with me? Finding a wallet that belongs to someone else on the road and keeping it is not theft. However, the Indian Penal Code labels such retention of property belonging to someone else as a different crime. Misappropriation, defined under Section 403 of the IPC, is the conversion of any property, which arrives in a personâ&#x20AC;&#x2122;s possession by chance, to oneâ&#x20AC;&#x2122;s own use.

Thus, if there is any indicator within the wallet of the rightful owner, the finder has a legal duty of returning it to him or her. If he does not do so and uses the money himself or herself, that person shall be guilty of misappropriation, which can lead to imprisonment for up to two years, or fine, or both.

1. If you fear ghosts, you have ...... A: hodophobia B: phasmophobia C: hypnophobia D: phantophobia 2. Proverb: Wedlock is a A: carrot B: bait C: padlock D: lock-up 3. Rekha’s life is as monotonous as .... A: sea B: milk C: lipstick D: mountain 4. “Say uncle” is to. ... A: respect B: surrender C: punish D: repeat 5. Opposite of “In the red” A: In the blue B: In the pink C: In the dark D: In the black 6. “What’s your bag?” means ...... A: What’s your problem? B: What’s your profession? C: What’s your price? D: None of the above 7. Spanish term “Hasta la vista!” means ..... A: Hello! B: Goodbye! C: Hurray!

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

D: Never! 8. Another expression for a stupid man: A: Cheapskate B: Tightwad C: Yo-Yo D: Dumb Dora 9. If the boss says “Get cracking!”, you must...... . A: leave B: resign C: reveal D: hurry 10. His wife just SMSed “2m”. A: 2 minutes B: too much C: tomorrow D: tomato 11. Heard of internet slang “whodi”? A: Whodunnit B: Who do I contact C: Who the idiot D: Friend 12. Don’t cast your pearls before ....... . A: dog B: monkey C: swine D: pigeon 13. Spell it right. A: Milenium B: Millenium C: Milennium D: Millennium 14. You DON’T say this when you are angry. A: Reet! B: Rats!

C: Brother D: SOB! 15. Flies buzz but monkeys ...... . A: grunt B: chatter C: yell D: growl 16. What’s the meaning of “pernickety”? A: Fussy B: Tough C: Risky D: Deadly 17. “Cerulean” is the name of a ...... . A: fish B: tribe C: plant D: color 18. A chiropodist treats...... A. fingers B. brain C. feet D. intestines 19. Sridevi is “no chicken”. A: Not youthful B: Not active C: Not alone D: Not foolish 20. Expand LIFO. A: Life Is Fine Otherwise B: Love In Friend’s Office C: Last In, First Out D: Learner in Front Office

ANSWERS

1. phasmophobia 2. padlock 3. sea 4. surrender 5. In the black 6. What’s your problem? 7. Goodbye! 8. Yo-yo 9. hurry 10. tomorrow 11. Friend 12. swine 13. Millennium 14. Reet! 15. chatter 16. Fussy 17. color 18. feet 19. Not youthful 20. Last In, First Out

Y L D R WO ISE

SCORES

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

INDIA LEGAL September 15, 2014

PEOPLE / Thrill of Sports

THIS AIN’T HORSEPLAY A horse rider from Turkmenistan showcases a daredevil dismount at the China Horse Culture Festival in Beijing. Photos: UNI

PARKED MIDAIR Parkour enthusiast Luke Webb turns Thames into a playground as he takes a breathtaking flip along the river.

BEYOND THE GYRATING HIPS This super energetic Edmonton Eskimos' cheerleader at a CFL match can certainly give professional gymnasts a run for their money.

HIGH STREET CULTURE Young bike stuntmen vroom their way into the air during a festival of youth street culture in St. Petersburg.

FLAMENCO ON WHEELS Spanish rider Dani Torres’s gravity defying love affair with his bike on full display at Burn Freestyle Malaga motocross show in southern Spain.