India legal , 30 April 2014

ice r P tion 0 a t i Inv `5

NDIA EGAL I L CHIDAMBARAM’S GOLDENOMICS 13

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April 30, 2014

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STORIES THAT COUNT

KILLER TOWERS

the legal battle against cellphone companies 26

PAID NEWS

buying the piper 22

KASHMIRI PRISONERS trail of torture

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AIRBORNE GOONS passenger misbehavior

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A BATTING

JUDGE Justice Mudgal, head of the panel probing match fixing and betting, opens up on BCCI presidents, IPL, and what ails global cricket

ELECTIONS 2014 46 * AAP in UP: Love Without Votes? * De Votah Sez NOTAH! * Soldiers’ Ballot Battle

Letter from the Editor Inderjit Badhwar

D

uring a recent brainstorming session, eminent lawyers who advise the India Legal editorial team suggested that we should plan a cover story on the impact of judicial activism on India’s society.

Does a proactive judiciary retard or enhance the process of social, economic and political evolution?

This is, indeed, a worthy subject, and will, in time, occupy the cover page of our fortnightly magazine.

But it needs immense research, a variety of voices and international comparisons for it to become a comprehensive statement and analysis on what will surely define future political and juridical debate in this nation—thankfully still a nation of laws rather than just men acting on whims and superstition.

Nonetheless, as we prepare for this and even at the risk of having our competitors steal the idea (Let them! Our belief at India Legal is that no matter who does it, we do it better), it is timely that we open up the discussion on this editorial page.

Election 2014 is upon us. No matter who wins, this country is going to change in ways yet unfathomable.

But who will drive this change? The politicians?

Media? Student activists? Protesters? Judiciary?

Maoist revolutionaries? Or NOTA? The easy answer is, all of the above. Because that’s what happens in a democracy. But my immediate answer is that India has been politically, economically, socially asleep for the last decade. In this somnolent state, democracy usually takes a beating. And when democracy is seen to retreat in the face of corruption, a megalomaniacal political culture of impunity takes centre stage. And when this happens, the judiciary steps in to correct the imbalance and reflect the people’s will, where politicians are failing.

This happened in the US in Judge Earl Warren’s time. Decisions such as the Miranda Warning and New York Times vs Sullivan, which enhanced the rights of the accused and the press, were later condemned as judicial excesses by conservative US leaders, who then brought “strict constructionist” judges to the benches. But these rulings had been necessary in order to correct historical racial injustices and societal imbalances.

In India, judges have stepped in where angels fear to tread. Nothing is sacrosanct: live-in relationships;

personal laws; gay rights; dowry demand; rape laws; khap panchayats; euthanasia; cricket betting; mercy petitions; and telecom spectrum allocation. Critics call the Supreme Court India’s new super cop often meting out vigilante justice. Supporters say the fight against long-standing injustice needs bitter medicine, even if it kills some innocent bystanders.

There’s no gainsaying that the judiciary, with all its warts, seems to be the only option when the political system turns effete. Suffice it to say that what keeps the people of Pakistan relatively free is the judiciary, which politicians can defy at their own peril.

But here are some words of caution from Eric Posner, a professor of law at the University of Chicago: “There doubtless has been a bubble in certain kinds of rights to legal recovery, one that (like other bubbles) is perpetuated by delusion and selfinterest. But this bubble in rights has also created enormous benefits for society. Indeed, it has eliminated abuses so basic that it is hard now to imagine how our society could so recently have accepted them.”

He writes that those who try to improve the law have two choices. The first option uses analysis—it describes not just what a proposed reform will gain but also what it will sacrifice. The second option uses rhetoric—it emphasizes a proposal’s upside, but obscures its costs. Reformers frequently choose the second option, because they would otherwise risk failing to inspire their audience to take action, he adds. “But it is risky to try to motivate people to change the law,” he warns, “by downplaying what they will sacrifice in doing so—this tends to start a process that eventually recreates in new forms the worst things... about the problems one is trying to solve.

“The overall result may be only to change the identities of the people or institutions that get hurt, and not to reduce our net exposure to legal error.” The change agents now driving this country’s political machines and judiciary would do well to mull over Posner’s thoughts.

editor@indialegalonline.com

April 30, 2014

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APRIL 30, 2014 VOLUME. VII

ISSUE. 16

Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Executive Editor Alam Srinivas Senior Editor Vishwas Kumar Contributing Editors Naresh Minocha, Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Vishal Duggal Art Director Sudhir J Kumar Deputy Art Director Anthony Lawrence Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator Kh Manglembi Devi Web Developer Shubra Kandhari, Jitendra Kumar Production Pawan Kumar Verma CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma

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April 30, 2014

A BATTING JUDGE Justice Mukul Mudgal, head of the panel probing cricket fixing, opens up on BCCI presidents’ failure to clean up IPL, why Dhoni should give up test captaincy, police apathy to investigate match fixing, pros and cons of T20, and racism in global cricket. A report by INDERJIT BADHWAR and ALAM SRINIVAS CORPORATE

Perverted midas

38 13

Chidambaram’s tenure as FM will be remembered for the black money it ushered in. ALAM SRINIVAS examines what compelled him to take such decisions

FOCUS

Killer rays Jaipur resident SUDHIR KASLIWAL’s struggle to have cellphone towers removed from the vicinity of his home following a cancer death in the family pitted him against powerful telecom firms

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ALSO

INFRA

Gate No 420A

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It’s swanky, but the revamped Mumbai Airport is a showcase of crony capitalism. NARESH MINOCHA points out the norms that were flouted to modernize it

Hooligans in the air 64 AVIATION

Unruly passengers cause menace on flights but get away scot-free because of legal loopholes. But their misbehavior will cost them dear, if an international law is amended, writes SHOBHA JOHN

THE NATION

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They’ve safeguarded the nation’s interests for over six decades. But for the first time the armed forces will be able to vote from their posting stations, reports SHIVANI DASMAHAPATRA

Andolan against votes

Money siphoning by

by Osho’s close disciples.....................60 HUMAN RIGHTS

Trail of torture

Communities, villages and middle class localities decide to boycott polls, angered at their demands not being met, says BHAVDEEP KANG

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Prisoners from Kashmir in the capital’s Tihar Jail are in constant fear of attacks from other inmates, who perceive them as anti-national.

A report by SHEIKH SAALIQ

Cyber threat to sensitive websites......68

REGULARS Letters… .....................6 Ringside… ..................8

GLOBAL TRENDS

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Pleasing private sector in highway projects…36

Guest column: The need for a high court bench in western UP...45

Arvind Kejriwal has endeared himself to rural electorate in UP too, but INDERJIT BADHWAR finds that lack of organization and funds will prove to be his undoing

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Perils of paid news….22

Non-performing assets of banks..........42

ELECTIONS 2014 Love minus votes

Opening up a new front

Need for indigenized arms production….....18

The way nature ordained

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Farmers in North America fight a highly regulated food distribution system to give unprocessed farm produce to neighbors and friends.

DAVID E GUMPERT narrates the 20-year struggle

Supreme Court .........10 Consumer Watch ......78 Is That Legal? ...........81 Wordly-wise...............82

Cover Design: ANTHONY LAWRENCE Photographs: ANIL SHAKYA April 30, 2014

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LETTERS

e Prizner Win000 `1

LETTER OF THE FORTNIGHT Predictions off the mark

My father was a politically inclined man and it was because of him that the whole family took an interest in politics. In the 1984 elections, as a result of the untimely death of Indira Gandhi, there was a huge sympathy wave, which resulted in Rajiv Gandhi getting unprecedented majority in the elections (it’s another matter that he failed to meet people’s expectations). The vivid memories from that era are those of Vinod Dua and Prannoy Roy conducting post-poll analysis in a 24-hour non-stop broadcast on Doordarshan, which gave breaks of 3-4 Hindi films to keep audiences hooked to it.

In the year 1999, a leading magazine predicted a landslide victory for the BJP-led NDA, with up to 336 seats, and around 140 seats for the Congress and its allies. The BJP and its allies won with 299 seats, whereas the Congress and its allies managed 144 seats. The margin of error was around 10 percent (37 out of 336).

In 2004, the same magazine predicted an NDA sweep, with the alliance expected to get around 330 seats and another Congress rout. The results were shocking; NDA got 181 and UPA managed 218 seats. The pollsters tried to play safe in 2009, showing NDA as the largest party in

an expected “hung parliament”. The publication expected UPA to be marginally ahead of NDA and gave the former around 200 and the latter around 180. The UPA got 234 seats and NDA 184, with the BJP only managing 134 seats.

In 2009, the margin of error in the science or art of predicting election results went up to 17 percent (34 out of 200) Predicting or forecasting any result isn’t an easy task. Some people might not tell the truth during surveys. Also, the data can be doctored. With such anomalies in the results, the questions regarding the validity of these polls are obvious.

During the days of Prannoy Roy and Vinod Dua, this was serious business.

The same can’t be said for the present day polls.

The worst exit polls were conducted during the 2013 Delhi elections, when a company called C-voter predicted just 6 seats for AAP. In the 2012 UP elections, Akhilesh Yadav stumped all the polls with totally unexpected results. Looking at all these aberrations, one needs to question if there is any relevance of these polls or if these have just become another tool of marketing a party.

Gaurav Pandey via email

US has ’em too In response to your cover story on political lawyers (Political Liars, April 15, 2014), this smooth transition from the legal profession into politics is a pretty universal phenomenon, as will emerge from a study of the men in the US house and senate, as well as the British parliament.

Kishore Mirchandani, New York

Stunning range The moment you come across the word “legal”, it may give you cold sweat down the spine. I did not even want to open India Legal, but then curiosity got the better of me and Oh Boy! You have come out with a magazine that really

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April 30, 2014

impressed me with its range and quality.

Congratulations and keep it up.

Ashok Patel, via email

In “defence” of British English a completely new genre of journalism but impressive, brilliant, too gaudy, lavish, and simply excellent. extremely user-friendly magazine that one can use for solving personal problems, and helping people affected by legal issues. but please follow british english, not american english. “defense” is “defence” in british english. mr dua, former professor, indian institute of mass communication, new delhi Editor’s Note: Thanks for responding in lower case.

A breather for lawyers I am a Colombo-based lawyer. I find your journal fascinating because it widens a lawyer’s vision beyond the reach of law that ordinarily confines lawyers to the attraction of filthy lucre.

Gomin Dayasri, Colombo

Bizarre Qs, cool As India Legal made for a fascinating read. I particularly enjoyed the tongue-in-cheek, textured narrative you wove, while successfully responding to some truly bizarre questions.

Subi Chaturvedi, via email

What’s in a name? Everything I read the first three issues of your magazine with

great interest. The design is attractive and articles well-researched and well-written. The regular sections were the surprise package.

Even for a non-legal person like me, these were easy reading. But despite your providing the rationale for the title of your magazine, my doubt persists. When I read the full-length articles in the political domain, I wonder what is it that you provide that other mainstream magazines don’t. Why shouldn’t I go for any other political magazine?

Pawan Sehgal, Dubai

Be general please I found the magazine interesting, with a mix of stories and illustrations. The story, Subrata-dum & Rajudee in the April 15, 2014 issue was arresting. I feel the content of India Legal should appeal to general readers. Try and desist from keeping the focus only on legal issues. Looking forward to more exciting stories in future.

BK Chaudhuri Noida

Course correction India Legal comes as a whiff of fresh air in journalism at a time when most of the frontline magazines believe in towing the line of one political party or the other. The stories are hard-hitting, with lot of gravitas, and prise open the truth on a host of issues plaguing the nation. The regulars, especially Is That Legal, are informative.

Kumar Ritwik, Gurgaon

In brief The Sudhir Choudhrie story (Arms and the Murky Man, April 15, 2014) is a knockout.

Perfect journalistic instincts. Congratulations.

NV Subramanian, via email I have just read the April 15, 2014 issue of India Legal cover to cover. It’s an outstanding effort, with great articles carrying a lot of information other than editorial content.

Arun Singh, via email

A wonderful idea and a well-planned magazine. Congratulations to the entire team.

Anil Tyagi, via email I compliment you for a very well done magazine.

Thomas Abraham Founder President, Federation of Indian Association, New York, and Global Organization for People of Indian Origin Stamford, CT, US

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

April 30, 2014

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Raag Darbari

VERDICT “For there is but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.” ― Cicero, On the laws

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April 30, 2014

PEOPLE/ world’s costliest bails

SWINDLERS’ LIST

At $1.6 billion bail bond, Sahara chief tops the global chart SUBRATA ROY chairman Sahara Group: $1.6 billion Globally, it is the highest-ever bail fixed for any individual by any court.

However, the Supreme Court fixed the high amount because it wanted Sahara to return almost $4 billion to three million investors.

JULIUS MEINL British billionaire: $133 million He was suspected of a secretive share buyback that was linked to his European land company; he was arrested in 2009.

MICHAEL MILKEN rogue bond trader: $250 million America’s junk bond specialist was indicted on 98 counts of racketeering and securities fraud in 1989. He ended up serving less than two years in prison.

DENNIS KOZLOWSKI CEO, Tyco International: $10 million He was accused of stealing $600 million from his firm, larceny and enterprise corruption, along with a senior employee.

Sentenced in 2005, he may stay in jail for 24 years.

VK SHARMA CMD. JVG Group: $20 million In the late 1990s, he duped investors, was arrested, got bail and absconded. He re-emerged and raised over $150 million between 2005 and 2012. He was rearrested in 2013.

BERNIE MADOFF Ponzi scamster: $10 million He was indicted for involvement in a $50 billion scandal. He agreed to a nightly curfew as no one co-signed his bail bond.

KENING MA automobile trader: $100 million Based in southern California, he sold all-terrain vehicles without a smog certificate.

Getty Images

BERNARD EBBERS CEO, WorldCom: $10 million In 2005, he was charged with conspiracy, filing a false statement with the US market regulator and securities fraud, as WorldCom inflated its assets by $11 billion.

Most expensive celebrity bail bonds Lindsay Lohan Hollywood actress: $300,000

OJ Simpson American football player: $250,000

Randy Quaid American actor, $100,000

Ryan O’Neal TV and movie actor: $50,000

Sean Avery Canadian ice hockey player: $20,000

Compiled by Shailendra Singh

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April 30, 2014

SUPREME COURT

Classifying criminals

A lease of life

I

f a youngster who is 18 years or below commits a heinous crime, should he/she still be tried by the juvenile court?

Well, the answer is yes if one goes by the decision of the Supreme Court.

A three-judge bench of Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh refused to entertain two petitions filed by BJP leader Subramanian Swamy and Nirbhaya’s parents that sought a relook into the meaning of the term “juvenile” in legal parlance while questioning the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act, 2000. It rejected the plea of Nirbhaya’s parents to send the juvenile convict for a regular trial. The accused was sentenced to a maximum of three years in a reformation home by the Juvenile Justice Board.

There was nothing wrong with the act, the bench clarified, and left it to the criminal courts to figure out the juvenality of an offender in a heinous crime.

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Illustrations: Aruna

Delhi’s high-voltage drama D

elhiites must have heaved another sigh of relief after the Supreme Court directed state-owned National Thermal Power Corporation (NTPC) to desist from cutting power supply to Anil Ambani-controlled BSES firms that provide power to the capital.

This is the second time that the apex court has thwarted NTPC from plunging Delhi into darkness. It had, in February 2014, restrained India’s largest power generating utility from shutting off power.

The BSES firms need to pay outstanding dues to NTPC, but claimed they have no money to do so, especially when the tariff is low in the capital and as a result they continue to lose revenue.

The court ordered BSES firms to pay the dues since January 1, 2014 to NTPC. It also asked the commission to make sure that there is no unnecessary delay in payment of dues. The court will seek a long-lasting solution to the crisis from the Delhi Electricity Regulatory Commission and BSES companies.

fter the death row convicts in the Rajiv Gandhi assassination case, it was the turn of 1993 Delhi blast convict Devenderpal Singh Bhullar to get relief from the Supreme Court. A bench of Chief Justice P Sathasivam and Justices RM Lodha, SL Dattu and SJ Mukhopadhaya commuted his death sentence to life imprisonment. The verdict was based on two counts: One, Bhullar was mentally ill. Second was the inordinate delay by the president in deciding his mercy plea. It was a report by the Institute of Human Behaviour and Allied Sciences that convinced the court that Bhullar was indeed insane. Bhullar developed mental illness in prison, after he was sentenced to death by a TADA court in 2011.

Reality check A

fter asking BJP and Congress in early March to clarify their stand on government formation in Delhi, the apex court ordered them to file a response within two weeks on whether they will form the government. It said the issue “can’t be left in limbo”. The parties wanted the court to defer the matter till Lok Sabha elections. The hearing was related to AAP’s petition against president’s rule and suspended animation of assembly.

April 30, 2014

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SUPREME COURT

CBI hauled over coals T

Black money blues B

ringing black money tucked away in foreign banks by Indians is an issue which governments of the day have time and again skirted. But not any longer after the recent verdict of the Supreme Court, which had earlier taken the lead in addressing the issue in 2011 by ordering the setting up of a Special Investigation Team (SIT) to find out ways to bring back black money to the country.

The center recently appealed to a three-judge bench headed

by Justice HL Dattu to dissolve the SIT, contending that it was not workable and sans any jurisdiction.

The apex court gave a dressing down to the Solicitor General Mohan Parasaran while rejecting the appeal. It also did not consider Parasaran’s assurance that the government was taking concrete action and a mechanism was already in place to deal with the issue.

While pointing out that it had to order the formation of SIT as successive governments had abdicated responsibility on a critical issue, the court declared that it will help SIT in any roadblock faced by the latter.

Making a case for rape victims C

ompensating rape victims by giving them half the property of rapists maybe an “appreciable” way to rehabilitate them, but the idea did not find favour with the highest court in India.

Although a bench of Chief Justice P Sathasivam and Justices SA Bobde and NV Ramana examined the verdict of the Bangladesh SC that had ruled in 2001 that a rapist must give away half his property to the victim, it averred that the verdict was too liberal to be followed in every

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he coal block allocation probe took a curious turn recently when the Supreme Court ordered the Central Vigilance Commission (CVC) to find out whether the CBI was justified in closing investigations in 20 cases after preliminary enquiries. The doubt arose because according to investigation officers the cases were fit for registering FIRs, but were overruled by senior CBI officials.

A bench of Justices RM Lodha, Madan B Lokur and Kurian Joseph gave the judgment after allegations were made by NGO Common Cause that top officials in the CBI were wrapping up cases. It took into account a recent instance where the CBI had filed a closure report in two such cases despite differences of opinion among its officials.

Pointing out that it was crucial to get divergent views examined by an independent body, the court asked the CBI to submit all documents on 20 cases before the CVC.

rape case. Amicus curiae Sidharth Luthra had drawn the attention of the court to the verdict.

However, the judiciary should be able to offer substantial compensation to the survivors of rape victims, observed Sathasivam while delivering the judgment in the gang rape of a tribal girl in West Bengal. The bench asked the state government to pay `5 lakh as compensation within a month, in addition to the `50,000 sanctioned for rehabilitation. It pointed out that the state government had failed to provide details of measures taken for the security of the girl and her family.

CORPORATE / black economy/ palaniappan chidambaram

Getty Images

PERVERTED MIDAS for years to come, the fm will be known as the man who helped to generate black money and legally convert it into white

By Alam Srinivas

April 30, 2014

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CORPORATE / black economy / palaniappan chidambaram

F

OR two decades, he hated to be in the shadows of Prime Minister Manmohan Singh, who is hailed as India’s first reformer. Finance minister (FM) P Chidambaram still thinks he has done more than Singh to push India on to the path of liberalization. In private conversations, he can go on for hours on how his moves as FM (comprising three stints and nine full budgets) made the economy more market-oriented and forced the black economy to change its color to white.

Ironically, and shockingly, in the past 20 months, the FM has almost singlehandedly given a boost to black money. Many of these decisions were compelled by an attempt to reverse the growth slowdown, but they helped increase corruption. They had nothing to do with the dozens of scandals and scams—like 2G and coal blocks allocation—that plagued UPA-II. The end result: the transformation of Chidambaram into the “gray” reformer.

Each time, he imposed curbs on gold imports, delayed the decision to renegotiate tax agreement with Mauritius, and went slow on how to tax crossborder mergers, the FM merely encouraged smuggling and generation of black wealth. His aggression to tax the taxpayers more, and not seek new sources and recover unpaid taxes, to rev up government’s revenues forced individuals and firms to evade and avoid taxes of all kinds.

Not that Chidambaram was unaware of the impact of his policies. So did he deliberately allow the manipulators to thrive in the hope that a sizeable portion of the tainted money will find its way into the Congress’ coffers to fight elections? Or were his priorities different? Logically, he knew the economy was in a mess, and his task was to stem the rot a bit so that India’s sovereign rating did not plummet to junk status. What if it helped the robbers too!

One is never sure with Chidambaram, who consistently plays the dual role of Dr Jekyl and Mr Hyde.

One day, he will rail against black money; the next day, he will announce a voluntary disclosure scheme for offenders to allow them to convert their black money into white. One week, he will go out of his way

Curbs on gold imports gave a boost to smuggling, and hawala premiums shot up to 5-15 percent. Gold seizures zoomed by 300-400 percent.

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to woo local and global investors with sops; the next week, he will anger them with `60,000 crore loan waiver scheme for small and marginal farmers.

YELLOW METAL, BLACK GOLD Back in the 1980s, before reforms kicked in, gold smuggling was at its peak. Controlled by the underworld and financed through the illegal hawala channels, it boosted the illegal economy. Liberalization put a stop to illegal imports of the yellow metal. For the next two decades, gold came in only through official channels. Chidambaram changed the scenario when he imposed customs duty on imports, which continued to rise through 2012 and 2013.

The FM’s reason to do so was valid. Indians spent $50 billion in 2012-13 to buy gold abroad. The passion to own bullion pushed the country’s current account deficit (CAD)—foreign outflows minus foreign inflows—to record levels. Global rating agencies threatened to downgrade India to a junk status, or the same as in 1990, when the economy was in a mess.

Chidambaram had no option but to restrict gold imports, at least in the short run.

Despite the duty and other curbs, World Gold Council estimated that India’s gold demand rose 13 percent to 975 tons in 2013, compared to the previous year. The bulk of it was through imports, although higher quantities of recycled gold found its way into the market. However, as per official figures, the value of imports in the 11 months (April 2013 to February 2014) of 2013-14 was around $23 billion or less than half the figure for 2012-13. How was that possible?

The black rabbit that the FM pulled out of his hat was in the form of illegal gold imports, or smuggling.

Over the past several months, black marketers have made hay and hawala premiums on gold shot up to 5-15 percent. The Department of Revenue Intelligence said that the seizures of smuggled gold in 2013-14 were higher than the combined figure for the past 10 years. In several months during the last fiscal, the seizures by Indian authorities jumped by 300-400 percent.

Most of the illegitimate gold came across the porous borders with Pakistan, Nepal and Bangladesh, through the smuggling routes for narcotics. In fact, Pakistan witnessed a huge jump of duty-free imports of gold which, instead of being exported as jewelry, was allegedly sent to India. During 2012 and 2013, such imports by Pakistan’s exporters zoomed by 80-100 percent. Pakistan banned imports for a month and later imposed stringent curbs on them.

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Mauritian moneybags 35.12

35 30

22.42

25

15.46

20 15

Total FDI inflows

9.94

10

Share of Mauritius

9.48 3.42

5 0 2011-12 All figures in $ billions

2012-13 *April-November

Thanks to smuggling, Chidambaram could claim that official gold imports slumped, but as the World Gold Council hinted domestic consumption still went up.

ALL FDI ROADS LEAD TO MAURITIUS Since April 2000, cumulative FDI (foreign direct investment) inflows from Mauritius to India totaled almost $80 billion, or almost 40 percent of total inflows from all the nations. A portion of the Mauritius investments is alleged to be globally tainted money—earned through narcotics, gun-running and smuggling. The second component of it is black money generated by Indians, which is taken overseas and brought back to the country as white money.

Indian agencies dub the latter trend as round-tripping or treaty shopping. The Income Tax Department pleaded and screamed for changes in the IndiaMauritius Double-Taxation Treaty. Mauritius imposes no tax and, under the treaty, India cannot impose tax on acquisitions of Indian firms, which are funded through Mauritius. Normally, a foreign entity, which buys an Indian company, has to cut TDS (tax deducted at source) on capital gains that may accrue to the seller. However, if the money comes through Mauritius, a tax haven, the foreign buyer does not

2013-14* Source: Planning Commission

have to cut TDS, and the Indian seller does not have to pay tax. For holders of black money, it makes sense to re-route their illegal money through Mauritius, show it as an investment to acquire a firm or buy shares in it, and instantly convert the black money into white—and that too tax-free.

In the past 15 years, only one former finance minister, Pranab Mukherjee, had the guts to roadblock the Mauritius route. In his 2012 budget speech, he removed the zero-tax status that any tax haven, including Mauritius, enjoyed. To be fair to the other finance ministers, Mukherjee was forced to act. The reason: The Supreme Court ruled that the Netherlands-based Vodafone, which purchased a majority share in Hutchison Essar’s mobile assets in India for over $11 billion in 2007 through the tax haven route, did not have to pay any tax on the cross-border deal.

Many of decisions taken by the finance minister were compelled by an attempt to reverse the growth slowdown, but they only helped increase corruption.

April 30, 2014

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CORPORATE / black economy / palaniappan chidambaram

Lure Lure ofof gold gold

Seizures of smuggled gold 2012-13

2013-14 (April-January)

In effect, the apex court opened the doors and windows for future transactions to remain tax free. In addition, the court gave the option to other buyers, who had indeed paid capital gains tax on similar deals in the past, to ask for refunds from the government.

What did Chidambaram do during his second stint as FM in UPA-II, that is after Mukherjee became the president? The FM postponed the 2012 decision to April 2016. He started an out-of-court arbitration with Vodafone, which, however, broke down later. Most importantly, he kept the Mauritius route wide open. Publicly, Chidambaram said that the India-Mauritius taxation treaty was being renegotiated, but the new clauses that he proposed won’t curb the flow of black money.

The fact that Mauritius was being given special treatment could be gauged from the manner in which India dealt with Cyprus, another tax haven and a lesser-known route for tainted money. On November 1, 2013, India declared the island nation in the Medi-

The tax on cross-border M&A deals was postponed. Despite allegations that it was used to re-route black money, the Mauritius route remains open.

16

April 30, 2014

terranean as a “notified jurisdiction”, which meant that deals through Cyprus would be scrutinized carefully by the income tax authorities.

Cyprus swung into action because India’s decision would scare away legitimate foreign investors, who route their investments through the island to benefit from its favorable tax regime. In less than three months, Cyprus agreed to share investment information more readily with India and renegotiate the bilateral tax treaty to plug loopholes related to treaty shopping. India said it would remove the notification on Cyprus, only after a new treaty was signed.

ROBBING PETER, WHO PAYS TAXES One of the biggest challenges that Chidambaram faced in the past two years was how to raise government’s revenues, even as the economy slowed down.

It became a huge headache because he could not expand the tax base due to political reasons. For example, he dared not tax farmers. Thanks to crony capitalism and nexus between big business and politics, he did not initiate action against errant companies, which had huge unpaid taxes.

His only option was to impose a higher burden on individuals and firms that already paid taxes. This obviously prompted the existing taxpayers to find ways to reduce their outgo. Many resorted to options that helped them avoid and evade taxes. Some of

TAX HAVEN ROUTE Vodafone CEO Vittorio Colao (right) with commerce minister Anand Sharma. Income tax authorities have imposed a huge liability on Vodafone’s purchase of Hutchison Essar

these initiatives turned out to be completely legal. For example, consider the royalty payments made by Indian subsidiaries of foreign multinational companies (MNCs). In the recent past, such fees have been hiked several times.

Between 2009 and 2012, the combined royalty payments by 50 listed Indian subsidiaries to their parent MNCs went up by over 30 percent per year. In the same period, the combined annual sales and profits of these subsidiaries rose by 17 percent and 7 percent, respectively. The era coincided with the removal of government’s ceiling on royalty fees in 2009.

Apart from the economic slowdown, which reduced the profits of MNCs’ subsidiaries, the two other reasons for regular hikes in royalty were high taxes on their profits and dividends that they paid to their shareholders, including the MNC parents. Until April 2014, royalty was taxed at 10 percent, which was much lower than the other two taxes. It was the best way to avoid taxes and still enrich the MNC parents’ coffers. Thus, Maruti Suzuki has lately become the cash cow for Suzuki.

Some subsidiaries went a step further and did cough up even the 10 percent tax on royalty paid to their parents. This was the reason why the tax authorities slapped a case of over `21,000 crore on Finnish firm, Nokia, and its Indian arm. The charge was that the mobile handset manufacturer had not paid any

tax on royalties since 2006.

Nokia India’s immovable assets, including its factory in Chennai, were frozen.

This derailed the parent company’s decision to sell its global factories to Microsoft. Nokia, which has now approached the Supreme PIB Court, agreed to pay an interim amount of `4,000 crore to the Indian tax department.

The finance minister’s response to this was to hike the tax on royalty payments to 25 percent in Budget 2014. The small investors, who were enraged with the fees, cheered as they felt more profits would be available as dividends to them. There was a catch. The FM said that MNC subsidiaries will pay either 25 percent, or the maximum rate mentioned in the bilateral tax treaties that India has signed with the respective nations, whichever is lower. It transpired that the majority of these treaties listed the maximum rate at either 10 or 15 percent.

Several taxpayers that India Legal spoke to agreed they were saddled with many taxes—on income (income tax), profession (services tax), consumption (excise and customs duties), entertainment and even on basic necessities like education and health (cess).

They admitted that they avoided a few, either through consumption without bills, or non-payment of services tax. This is why the finance ministry launched a campaign against evaders of services tax.

For years to come, UPA-II will be known as the regime that launched a number of scams. But its Chief Financial Officer Chidambaram will become synonymous with India’s modern Midas. The finance minister will be known as the man who helped generate black money and paved the way to legally convert it into white. IL April 30, 2014

17

Pramod Pushkarna

FOCUS/ national security

WHY NOT MADE IN

INDIA?

ensuring stability, both internal and external, will be a major challenge for the next government. the leadership needs to ensure that reliance in defense is a priority

By Manmohan Bahadur

E

LECTION time in India is an interesting period when one sees politicians of all hues conjuring up support from the masses. The promises are generally on issues of the basic needs of the common man—about roti, kapada aur makaan.

These are the topics that concern the daily lives of the average Indian in a country that, at independence, was predominantly rural, industrially backward and could not feed itself. The Green Revolution ushered in a modicum of respectability away from the sobriquet of being a basket case, wherein it was once said that food aid from America went directly “from ship to mouth” to feed the

18

April 30, 2014

hungry. National security was never an issue, for that was an ethereal subject meant only for the experts.

Seven decades later, the situation is different. As the heat of May approaches, the election fever has raised temperatures to a different level. Luckily, one sees stirrings of interest on the subject of national security and the odd statement made on it by some (just two or three) political parties. That, however, does no justice to the power ambitions of India, for what is required upfront is their “vision” for the country.

Vision is defined as an “acute sense of the possible”. It is the setting of the agenda by the leader. Ben Gurion, the founder of Israel, envisioned greening of the Negev desert.

Today, due his vision and the thrust to attain it, Israel is selling water technology to the world, including India. And this, in a country where on seeing the flow in the Brahmaputra, an Israeli expert remarked that the amount of water that flows in the river in one day is equal to what his country gets in a full year! Another telling example was the vision of John F Kennedy, who declared in the early 1960s that to demonstrate its superiority over the Soviet Union in space exploration, America should put a man on the moon before the decade ended—and it did.

FOR A CORRECT POSTURE India’s challenging security environment is in dire need of a vision to confront the problem headlong. With two inimical neighbors and an internal security milieu that is a threat to its stability, the country can ill afford to plod from crisis to crisis. Red lines need to be drawn and deterrent capability to enforce punishment that would follow any transgression, needs to be acquired. Our posture should inspire confidence in our allies and dissuade detractors, so that India never again gets depicted as a cat seeing itself as a tiger in its reflection in a mirror, as was done by the influential magazine, The Economist, on its cover page a year back.

The makeover can happen only if there is a vision (and a plan) of grandeur, not just a delusion of greatness, as is our national character; our rich cultural heritage cannot

be a substitute for our backwardness in most indices of human progress. The vision has to come from a leader who himself, or herself, believes in and has the self-belief to achieve it. In a book, The Challenge of Command, which is a compulsory read in military colleges, its author Robert Nye says that the followers should see the picture (destination) through the eyes of the leader. It’s only then that the synchronization of the leader’s aim and that of the masses would occur and generate an effect greater than the sum of the individual efforts.

THE THREATS Western leaders go to great lengths to spell out their vision, which becomes the yardstick for the citizens to make up their mind whom to vote for. Do we in India know the vision of our leadership so as to elect him or her?

Leaders like Mahatma Gandhi, Winston Churchill and George Smith Patton had a charisma that was worth dying for. Modern India needs such leadership desperately if it has to get its act together to address the challenges. Questions must be posed in the run-up to the elections and answers demanded from each political party to know their plan of addressing the security issues staring us in the face.

Heading the list of threats is the impending American withdrawal from Afghanistan in end 2014, an event that portends a major challenge to India. Many scenarios have been painted, starting from the most optimistic, wherein the present Hamid Karzai government will acquire stability, to the most pessimistic one in which Afghanistan breaks up into areas of tribal dominance of various clans. Analysts talk about a move of battlehardened insurgents moving to Jammu

India needs more indigenously-made arms. For this to happen, the local private sector has to be seen as a nationalistic asset.

April 30, 2014

19

FOCUS/ national security

CASE FOR SELF-RELIANCE (L-R) Defense equipment by Mahindra on display; The chief of the air staff, Air Chief Marshal NAK Browne (left), after a one-hour sortie in the Rafale aircraft at St Dizier airbase

PIB

and Kashmir resulting in a new thrust to the insurgency, which has been kept under lid.

How does the new Indian leadership plan to interact with the Afghan government which may be under pressure from the Taliban, aided by Pakistan? China has huge investments there and could it, or would it, join hands with India to bring in stability? Would India agree to play second fiddle to China?

China’s feverish militarization with a budget three times that of India, and its structured and calculated encircling of India through its “String of Pearls” strategy, portends an unsettling environment. Once its road link from Sittwe in Myanmar to Kunming gets completed next year, it would get access to the Bay of Bengal, negating the threat of closing of the Malacca Straits posed to its shipping.

The defense industries of India and China complemented each other in their archaic legacy in the mid 1970s, after which the

The new Indian leadership will have to deal with an Afghan regime under Taliban pressure, and counter China’s calculated “string of pearls” encircling of India.

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April 30, 2014

Chinese graph just took-off. Can we do a “China” with our indigenous defense industry and achieve a reversal of the 70/30 ratio which is heavily biased towards imports?

Political parties must educate the public on how they plan to get back the strategic autonomy that is slipping away as a consequence.

HOSTAGE TO ARMS SUPPLIERS Strategic autonomy is the freedom available to a nation to do what is best in its interest.

India is presently hostage to foreign vendors due to the absence of an indigenous military industrial complex. When the Soviet Union collapsed in 1991, the three services were running from pillar to post for spare parts for their inventory of weapons which were of USSR origin.

When India exploded the nuclear bomb at Pokharan in 1998, the ensuing American embargo crippled the Indian navy’s Sea King helicopter fleet. Recently, India was coerced into accepting a three-fold price increase from around $800 million to $2.33 billion for the aircraft carrier INS Vikramaditya because there is no home grown industry to fall back on.

The army’s artillery arm is in poor shape because of the procrastination of the procurement system to import desperately-

FOREVER READY (L) A Rafale aircraft as part of navy exercises; (R) armymen in action at the Kargil heights

needed numbers, despite the Bofors gun. The navy’s depleting submarine arm has come into sharp focus after the INS Sindhurakshak and INS Sindhuratna tragedies.

The knee-jerk reaction of blacklisting foreign vendors, like putting on hold all deals with Rolls Royce after CBI inquiry, has harmed our defense preparedness. The IAF is on a sticky wicket with its squadron strength down to 34, as per a parliamentary standing committee report on defense. The delay in the induction of 126 Rafale medium multi-role combat aircraft (MMRCA) has added to its woes.

SYNCHRONIZED EFFORT India is in this predicament because the “Made in India” tag is conspicuous by its absence. This tag can only make an appearance with a visionary plan and missionary zeal to galvanize the private industry. This would not be possible in isolation or by just tinkering with the defense procurement procedure (DPP). The requirement is a radical overhaul of the DPP and, more importantly, the mindset of the government. The private industry has to be viewed as an asset that is as nationalistic as the Defense Public Sector Undertakings.

A close coupling and synchronization of

the defense and foreign policies is an imperative in this endeavor, overriding turf considerations and petty politics.

The mantra of the IAF, “People First, Mission Always,” conveys the importance of the human resource in any organization, especially the armed forces. Unfortunately, joining the forces has slipped down the priority of choices for young Indians in the last decade. The vision of our political hopefuls must include their plan to incentivize the youth to join the armed forces. Social values having changed over the past decades, cogent thoughts need to be devoted to this vital aspect of national security.

Finally, political leaders need to be reminded of an Oscar Wilde quip, “now-adays, people know the price of everything, but the value of nothing.” Politicians must know the value of izzat, which is what armed forces personnel want. The well-being of the veterans, as they fade away from active service, must be a sincere duty accepted by the political class—it has to be a solemn part of their “vision” for India. IL

The author, a retired air vice marshal, is a distinguished fellow at the Centre for Air Power Studies. The views expressed in this column are personal.

April 30, 2014

21

MEDIA / paid news

SPOTLIGHT COMES ON AT A

PRICE

as tv channels and print publications pretend to present insightful political analyses and profiles during election campaigns, it’s time to question many of these articles, which are only advertisements masquerading as news

By Paranjoy Guha Thakurta

22

April 30, 2014

I

NDIA’S media is dominated by corporate conglomerates, which seek to maximize their profits.

The independence of the media and its ability to bring about transparency in society gets compromised because of corruption within itself. Paid news in any form, but more importantly in the run-up to elections, is dangerous. The latter subverts the fundamental tenet of democratic ideals: purity of a citizen’s vote. The difficulty is that paid news is difficult to identify. The deception involved in passing off advertisements as news entails a clandestine activity.

Its occurrence, thus, can be established only by its participants by acknowledging their guilt. In addition, paid news is organized through cozy relationships between lawmakers, politicians cutting across party lines and representatives of corporate media. This nexus cannot be weakened easily.

News is supposed to be fair, neutral, independent, and distinguishable from opinions or commentaries, as well as

Criminalizing paid news would be meaningless, as the illegal practice by media and politicians is difficult to establish. favorable coverage. Thus, some of them get away spending money over and above the ceiling allowed on their campaigns by the Election Commission. These are corrupt practices as per Section 123(6) of the Representation of the People Act, 1951. The media, which indulges in paid news, does not account for the revenues and violates the Companies Act, 1956 and 2013, and Income Tax Act, 1961.

I

Illustration : Anthony Lawrence

advertisements. The first problem with paid news is that consumers are unable to distinguish between paid editorial content and unpaid one. This distinction is required for TV channels under the advertisement code, formulated under the Cable Television Networks (Regulation) Act, 1995.

Consumers of news content are provided with false representations (or advertisements) that masquerade as news content.

This is a violation of a citizen’s “right to know�, which is protected under Article 19(1)(a) of the constitution as a fundamental right; it was affirmed in Union of India vs Association for Democratic Reforms case by the Supreme Court.

The candidates in the fray do not account for the payments made to media firms for

n the absence of powers with the Press Council of India (PCI), including powers to conduct search and seizure operations, it is difficult (and often impossible) to track these illegal transactions. Several proposals to curb paid news exist, but none offers a satisfactory answer. Among them are those for the setting up of ombudsmen in media firms to address paid news and the regulation of cross-media ownership holdings. These are, in a sense, long-term solutions. More direct suggestions, such as criminalizing the practice of paid news, have also been proposed.

The calls to criminalize paid news, and make it a cognizable and non-bailable offense, are attractive proposals. However, it would be akin to placing the cart before the horse if one were to agonize over the minutiae of the offense. The question arises as to how can a debate on prosecution help if the practice is difficult to establish.

There are other causes for circumspection. Standards of proof tend to be higher in cases of criminal offenses because they could involve sentences. The rationale for paid news to be a criminal offense is clear: these are seen as more egregious than civil wrongs.

Whereas civil wrongs injure particular people or parties in a case, criminal wrongs are those against society.

However, given the higher burden of proof, it may prove to be counter-productive.

April 30, 2014

23

MEDIA / paid news

Curious case of Ashok Chavan

P

ALAGUMMI Sainath, rural affairs editor at The Hindu, reported on the paid news problem as it manifested itself on the eve of October 2009 assembly elections in Maharashtra. He highlighted a series of complimentary reports on the then chief minister of the state, Ashok Chavan.

A total of 15 editions of three large newspapers carried identical content, and each newspaper attached a different byline. The three newspapers, Lokmat, Pudhari and Maharashtra Times, were competitors.

Contemplating the outcome of a legal suit between the correspondents of these articles to determine who owns the copyright of the content may be hilarious, had it not been for the sheer scale and audacity of the fraud that was perpetrated by the Marathi language media.

Chavan won from the Bhokar assembly seat in Maharashtra’s Nanded district by a margin of over one lakh votes. The official expenses incurred on advertising during his election campaign worked out to `5,379 on newspaper ads and `6,000 on cable TV ads.

To use Sainath’s words, these covered at least “47 full newspaper pages, many of them in colour, focussing exclusively on Mr Chavan, his leadership, his party and government. These appeared in large newspapers, including one ranking amongst India’s highest circulation dailies....”

The Election Commission’s (EC’s) attempts to inquire into the veracity of Chavan’s election accounts were opposed by the politician’s legal team. His lawyers, including Abhishek Manu Singhvi, member of the Rajya Sabha and spokesperson of Congress, challenged EC’s jurisdiction before a two-judge bench of the Delhi High Court but failed. The matter is now before the Supreme Court.

The government filed an affidavit in the Ashok Chavan versus Madavrao Kinhalkar case in support of Chavan. The affidavit, submitted by the law ministry, effectively seeks to whittle down EC’s powers to question the veracity of the expenditure statements of a candidate by claiming that the commission has no powers to act in a “hypothetical” situation where a candidate knowingly submits a record of his overall expenditure, but leaves the relevant particulars blank.

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April 30, 2014

Another seemingly attractive option that has found currency is the amendment of Section 123 of the Representation of the People Act, 1951 to make instances of paid news actionable by the Election Commission.

This section defines corrupt electoral practices, including bribes and inducements to influence voters. The concern here is that it would only penalize the candidates, and leave the errant media firms alone. Nevertheless, if paid news is recognized as a corrupt electoral practice under act, it would be a deterrent.

T

he PCI is a quasi-judicial authority set up by an act of Parliament but it has no statutory powers to punish. Its writ does not extend beyond print. The majority of its 30 members represent the industry. The PCI has no real teeth to enforce its findings or to penalize any individual or organization. It has no mandate by which to enforce the observation of its own code of ethics, as there is no legally binding quality to them which could justify a court’s intervention.

In an ideal situation, self-regulation by the media would be the best solution. But the question arises as to what needs to be done to contain and curb—if not, stop altogether— the corrupt practices of the blackest of the black sheep within the fraternity.

This is what the Delhi High Court stated on April 19, 2013, in the Indraprastha People versus Union of India case: “...the absence of

Anil Shakya

How Umlesh Yadav was disqualified as an MLA

T

IN JEOPARDY, GENUINE REPORTAGE Election coverage and analyses in full swing on some of the news channels. This is just a representational photograph

state intervention on its own is no guarantee of a rich media environment. On the contrary, to promote a media environment characterized by pluralism and diversity, state intervention is necessary…. Freedom of expression is not an absolute right and it can be restricted to protect the rights of others.”

It added: “Under self-regulation the media voluntarily commits to uphold a code of ethics that it itself drafts… but ethics itself is a complex and controversial subject due to society not being homogeneous….”

The issues related to the kind of regulatory authority that is required for the media in India have been discussed and debated without any resolution as of now. At the end of the day, it comes down to the practitioners. In order to curb corruption in the media, journalists have to preserve the ideals and act in an ethical manner. IL

The author is an eminent journalist and educator. As part of a sub-committee of the PCI, he has co-authored a report titled Paid News: How Corruption in the Indian Media Undermines Democracy. This article is adapted from a chapter in his book titled Journalism: Ethics and Responsibilities, co-authored by Ujwala Uppaluri

HE Election Commission (EC) has highlighted the “deception” and “propaganda” that was related to paid news in its October 2011 order on Umlesh Yadav, the first ever sitting member of a legislative assembly to be disqualified for her failure to record expenditure incurred on advertising during her campaign.

She was disqualified under section 10A of the Representation of the People Act, 1951. Yadav, mother of Vikas Yadav, convicted in Nitish Katara murder case, was elected from Bisauli, Uttar Pradesh, in 2007 on a ticket of the Rashtriya Parivartan Dal. She was unable to complete her term and was banned for three years from seeking re-election as well.

This case has set a precedent and represents a major breakthrough in solving the paid news problem. It also sets the right precedent of the PCI and EC working together; the former forwarded its findings to the latter. The EC articulated the full extent of the damage paid news did, and held Yadav accountable. But it let the errant media go scot free.

On 20 October 2011, the EC opined that “by suppressing expenditure on ‘paid news’ and filing an incorrect or false account, the candidate... is guilty of not merely circumventing the law relating to election expenses but also of resorting to false propaganda by projecting a wrong picture and defrauding the electorate.”

On May 3, 2013, the Allahabad High Court upheld the commission’s finding as fully consistent with the law and has cited clear precedent laid down by the Supreme Court in LR Shivaramagowda vs TM Chandrasekhar. The latter case saw the SC rule that, in addition to checking whether accounts had been duly lodged, it was within the EC’s powers to check to see if “true and correct” accounts of expenditure incurred or authorized were provided by candidates. The Yadavs have challenged the high court ruling in Supreme Court.

The case did not result in any indictment of the newspapers that printed ads about her (Dainik Jagran and Amar Ujala). The PCI was able to identify the content as paid one because “the format of the impugned material was such that it would appear as a news report to the layman and the word ‘ADVT’ printed at the lowest end rather appeared to accompany a small boxed appeal by the candidate.”

April 30, 2014

25

FOCUS/ cellphone radiation / transmission towers

KILLER

RAYS

his singular goal is to get these structures removed from crowded residential areas after harmful emissions killed his brother while another had a brush with death.

Sudhir Kasliwal is determined to keep fighting despite official apathy. a first person account of his crusade

T

he ubiquitous cellphone has taken over our lives. Be it at a marketplace, metro, railway station, cinema hall or airport, one can see people with mobiles glued to their ears, laughing, looking grim or gesticulating. But how many are aware of the health hazards caused by radiation emanating from mobiles as well as telecom towers that boost mobile signals? While mobile companies are quick to debunk it, asserting that there is no definitive research on it, I have personally been affected by it and fought to remove cellphone towers from residential colonies.

Perhaps, this will be a lesson for youngsters who use their mobiles for prolonged periods or sleep with it tucked under their pillows. Residential colonies also often welcome cellphone companies to install towers on the rooftops of

A TRIBUTE: Nothing could thwart Sudhir Kasliwal’s (left) fight against mobile towers. He had already lost his brother Pramod to fatal radiation effects.

houses, so that it can bring them additional revenues, thus cutting down on their monthly maintenance payments.

I too would have ignored all the warnings associated with cellphone towers if I hadn’t faced the serious consequences of electro magnetic radiation (EMR) emitting from mobile towers.

PERSONAL LOSS It all began in 2011. My youngest brother, Pramod Kasliwal, was diagnosed with brain cancer. The family naturally panicked. We rushed him to New York Presbyterian Hospital where Dr Jeffrey N Bruce, a neurosurgeon, operated on him to remove a brain tumor. We hung on to hope. But after a few months, he passed away.

When I told Dr Bruce that another brother too had been diagnosed with a brain tumor a few months back he was surprized that two siblings had simultaneously fallen prey to the same disease. Some doctors said it could be caused by radiation. It was then that I started thinking along this line.

It then occurred to me that we had three mobile phone towers with the antennae of about seven cellphone companies, barely 15 feet from our house in Jaipur. The height of the antennae was almost at the same level as the first floor of our house, where my brothers lived. Were these towers responsible for the cancer, I wondered.

I immediately recalled how in November

2011, Bollywood actress Juhi Chawla had successfully launched a campaign to get 14 towers near her residence removed. She and residents of four buildings in plush Malabar Hill in south Mumbai had demanded that the government remove these towers. After an independent audit, the residents had discovered, to their horror, that radiation levels were very high due to the towers being just 40 meters from their houses.

HIGH RADIATION They wrote to their MP, Milind Deora that radiation through mobile tower boosters should only be at the rate of 1 milliwatt per square meter. But according to experts, the exposure limits to radio frequency fields prescribed by India are 9.2 watts per square meter. This is much higher than other countries—3 in Canada, 2 in Australia, 1.2 in Belgium, 0.1 in China and Italy, 0.095 in Switzerland and 0.02 in Russia.

Unfortunately, in India, regulation of mobile towers has not kept pace with the growth of the cellphone industry. Chawla stressed during her campaign that towers installed on buildings in residential areas, hospitals and schools should be regulated.

Studies have indicated significant longterm impact of electromagnetic fields on some species, affecting genes. This could lead to health complications like tumors, reduction in sperm count and congenital deformities. In 2007, Bioinitiative Working

Anil Shakya

April 30, 2014

27

FOCUS/ cellphone radiation / transmission towers

impair immunity and even contribute to Alzheimer’s disease, dementia, heart disease among other ailments.

However, according to a government panel instituted to study the effects of mobile tower radiation, there is no long-term data on the environmental impact of mobile towers. This ambiguity has helped cellphone companies skirt the issue.

Inspired by Chawla, I too decided to take the initiative to remove the towers near my house. But it was easier said than done.

STROKE OF LUCK Sanjiv Kasliwal (above), another brother of Sudhir, is under treatment after mobile tower radiation led to brain cancer

Group, a collaboration of scientists and public health policy experts from the US, Sweden, Denmark, Austria and China released a 650-page report, which cited more than 2,000 studies on the toxic effects of EMRs from all sources.

Suspected health hazards due to it are blurred vision, headache, nausea, fatigue, memory loss, hearing problems and so on.

However, chronic exposure to even low-level radiation, they found, could cause cancer,

When the towers were active, peacocks, sparrows and other birds vanished from our garden in Jaipur. But they all returned after the towers were disconnected.

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April 30, 2014

A LONG DRAWN BATTLE I first engaged a professional team from Mumbai to measure the EMR around my house. In the meantime, five more cases of cancer surfaced in our neighborhood. When the results of EMR came out, we were shocked. Radiation levels in our first floor house, where the windows faced the towers, were extremely high. So was the case in other houses in the neighborhood.

When this team visited Jaipur in December 2011, word spread and the news was flashed in local newspapers. Rajasthan Patrika, a popular Hindi newspaper, took the lead and dispatched reporters to various places in Jaipur, where the towers were installed, to conduct a survey. We were again shocked to know that there were more than 100 cancer cases in parts of the city where there were clusters of towers.

This was the turning point for me. I decided to take up the issue with government authorities. To begin with, I wrote several letters to the then Rajasthan Chief Minister Ashok Gehlot, Chief Secretary S Ahmed and his successor, CK Mathew. I also met Jaipur’s mayor, Jyoti Khandelwal, municipal authorities and others.

As expected, there was no reply, and of course, no action. But, I wasn’t going to give up easily. I used RTI to ask municipal authorities about the rules governing installation of towers, whether those next to my house were granted permission to be set up and if the requisite fee was deposited by cellphone companies.

My query got shunted from one department to another, and finally, they said that no permission was granted, nor any fee deposit-

55 20 1

6

2

4

35

45

Safe distance Number of antenna(e) Safe distance a building should be from antenna(e) at the same pointed in the same height (in meters) direction 1 20 2 35 4 45 6 55

ed by the companies. Armed with this reply, I again made the rounds of various authorities, the chief secretary and the chief minister.

The mayor went to the extent of saying that if she ordered the removal of the towers next to my house, the whole city would want other towers removed. Cellphone companies further said that if the three towers were removed, around 30,000 phones would be disrupted, including those of the chief secretary and the DGP. Plus, there would be no mobile coverage in the Vidhan Sabha, Secretariat and SMS Hospital, all of which were close to my house. But that was hardly going to stop me in my crusade.

Meanwhile, the chief minister directed the chief secretary to take action, but nothing was done. I then went to Delhi to knock on the doors of Telecom Minister Milind Deora and showed him the answers to my RTI. Deora sent a fax to the collector of Jaipur, CEO of the municipality and the chief secretary, saying that if the towers were installed without proper sanction, they should be removed. I felt lighter at heart.

But my happiness was short-lived as no action was taken. A high official in the Rajasthan government said I was trying to fight a powerful lobby and wouldn’t succeed.

But I was not going to give up as my fam-

ily had paid a heavy price. Another brother, Sanjay Kasliwal, was being treated for brain cancer. Even my six-year-old dog had died of a stomach tumor. However, it was no more a personal battle.

With no redressal in sight, I served a legal notice to Jaipur municipality. At one level, it was a lonely battle. But at another level, I had got support from the media. Rajasthan Patrika had joined the campaign to remove towers from crowded residential localities.

Finally, the municipality disconnected the three towers next to my house. And yes, the 30,000 phones still continued working!

FINAL JUDGMENT As a result of Rajasthan Patrika’s campaign, the state issued orders that all towers located in schools, hospitals and playgrounds be removed. The matter went to the Jaipur High Court, where the cellphone operators lost the case. They have now appealed to the Supreme Court.

A PIL in the high court stated that there were about 30 crore cellphone users and nearly 4.4 lakh cellphone towers in India. It further said the towers were a source of various harmful and hazardous radiations.

The judgment, delivered on November 27, 2012, directed the authorities to: Remove towers from hospitals and colleges within two months.

Remove towers within 500 meters’ vicinity of jail premises within six months.

Examine whether towers near ancient monuments dotting the city need to be removed within two months.

Strictly enforce DoT guidelines with respect to mobile handsets and clearance for installation of mobile towers.

Educate the public about different mobile sets and their ill-effects.

The state government and local authorities should decide on a case-by-case basis about installation of towers in densely populated areas in accordance with law.

When the towers were active, birds had disappeared from our garden. Now they returned to generate a joyous babel, and also started building nests on defunct towers. IL

Safety first Guidelines for mobile tower installation:

Service providers should ensure that all public areas around the site are within safe EMR exposure limits.

Radio frequency radiations from Base Transceiver Station should be audited for compliance with prescribed norms.

In case of both ground-based and roof-top towers, there shall be no building in front of the antenna(e).

If the antenna is mounted on the wall of a building or a pole along the road, its height should be at least be five meters above the ground or road level.

—As told to Ramesh Menon April 30, 2014

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FOCUS/ cellphone radiation / transmission towers

Anil Shakya

DEADLY

DAMAGE rays from mobile towers around you can cause cancer, and even death

By Harsaran Bir Kaur Pandey

I

F you can use your mobile phone, you have cell connectivity. This means that you are within the range of a nearby mobile tower. Mobile technology uses radio frequency radiation (RFR), which is part of the spectrum of electromagnetic waves. This electromagnetic radiation (EMR) causes both thermal and non-thermal effects.

In the last two decades, questions have arisen about the adverse impact of EMR on humans. Most nations have prescribed standards for permissible radiation levels in mobile phones and towers. They observe these standards and do not face problems of thermal damage.

Over the last decade, these radiations have increased by almost 100 times in India.

According to Dr Girish Kumar, head, Department of Electrical Engineering, IIT, Mumbai: “If a person stands within a meter of a tower for six hours, his temperature can go up by 6 degrees Fahrenheit—enough to cause death.” While most people do not do so, many towers are still dangerously close to residential areas, including building clusters.

The constant signal from the mobile technology can disrupt the human’s bioelectric systems, which control and regulate functions like the heart and brain. The constant onslaught of radiations stresses the body, which responds by going into a “fight or flight” mode.

This “under-threat” mode exhausts the cellular repair system, which is unable to heal damaged cells. Over time, accumulation of

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Chips and strips We are enveloped by electromagnetic smog in the age of technology and electronic gadgets.

EMRs from mobiles, computers, Wi-Fi routers, mobile transmission towers, etc are affecting human health. Syenergy Environics Limited, a New Delhi-based organization, has developed a chip to neutralize radiation. Extensive trials have been conducted in collaboration with Max Healthcare, and the results were published in international scientific and medical journals. The chip when fixed on mobiles, laptops, PCs, tablets and Wi-Fi Routers protects users against radiation. A strip wrapped around a mobile transmission tower can achieve the same result.

damaged cells could well become the underlying cause for major diseases like cancer, Alzheimer’s disease, Parkinson’s disease, heart problems, hearing and memory loss and infertility. Children and infants are the most vulnerable to EMR, which easily penetrates their thinner skull. EMRs can also cause a permanent damage to foetus.

The largest retrospective adult case-control study titled “Interphone” was coordinated by the International Agency for Research on Cancer (IARC), a specialized agency of World Health Organisation (WHO). It studied links between use of mobiles and head and neck cancers in adults. The data gathered from 13 countries found indications of an increased risk of glioma, a malignant brain cancer, in those with the highest (10 percent) cumulative hours of mobile use over 10 years. For the first time, WHO acknowledged the possibility of a carcinogenic impact on humans.

Incidentally, another study of users till 2004 shows a 40 percent higher risk of glioma in the highest category of “heavy” users. ”Heavy” means an average 30 minutes use per day over a 10-year period. WHO has promoted further research on this group.

India has set norms to limit the harmful effects of EMR exposure from mobile towers.

(See main story) While some states have legislated strict laws on this, others lag behind.

Many RWAs and individuals have taken tower companies to court to force compli-

ance of the government norms. In Gurgaon’s phase III, residential complexes have existed since the mid-1990s. In the last five years, a swathe of land was converted for commercial and office use; the latest being the Rapid Metro to connect office complexes. Overnight two towers surreptitiously appeared on top of the rapid metro buildings. On either side are thousands of residential premises.

No one from these complexes was consulted; the towers radiate microwaves 24x7. The residents now plan to take legal action.

The stakes are high. Most of us cannot do without mobile phones. The technology needs a network of towers to ensure connectivity. The government has begun to put health over technology but it will take strict monitoring and enforcement to ensure that mobile tower companies readily comply with the norms.

The urban development ministry wants to find solutions and has set up a committee of experts. Some of the initial recommendations include that towers must be placed on the tallest building in residential areas to reduce the impact on people, and they should be situated on a six-foot concrete platform to protect the top two floors from direct radiation. Ultimately, people need to be more vigilant to safeguard their health. IL

LIFE SAVER The new chip (above) neutralizes radiation effects. It can also be fixed to mobile phone towers

—Harsaran Bir Kaur Pandey is the author of The Radiation Threat: An Emergency in the Making April 30, 2014

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INFRA/ ppp model/mumbai airport

GATE NO

420A

manmohan singh exalts the success of mega schemes under the business arrangement, but the new project is also a showcase of crony capitalism

By Naresh Minocha

“I

was struck recently by a comment in the media that most of the billionaires among India’s top business leaders operate in oligopolistic markets and in sectors where the government has conferred special privileges on a few. This sounds like crony capitalism. Are we encouraging crony capitalism? Is this a necessary but transient phase in the development of modern capitalism in India? Are we doing enough to protect consumers and small businesses from the consequences of crony capitalism?” These were the questions posed by Prime Minister Manmohan Singh on May 1, 2007.

Seven years later, as he inaugurated the new integrated terminal, T2, of Mumbai’s international airport in January 2014, he indirectly answered them. As he cut the red ribbon, the prime minister said: “I compliment Mumbai International Airport Limited (MIAL) for building this state-of-the art facility. The entrepreneurial skills of Shri GVK Reddy and his colleagues are truly first-class.”

Exuding confidence in the Public-Private Partnership (PPP) model, Singh added: “The construction of the new terminal is yet another shining example of successful execution of large infrastructure projects under the PPP model which our government has encouraged in recent years. I am very happy that the PPP model has worked particularly well in the civil aviation sector.”

Ironically, and shockingly, the PPP model that Singh raved about has fattened the pockets

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COZY CARTEL The government allowed MIAL to levy development fees on passengers using Mumbai airport, when the original contract didn’t mandate it

of dozens of crony capitalists in the past few years. It has drained the national exchequer due to incentives to the private sector, and broken the back of the consumers, because of high tariffs paid by them to use these infrastructural facilities. Even private sector players have alleged that PPP has become a cozy cartel of crony capitalists, bureaucrats and politicians, in which huge sops are openly and grandly handed over the platter.

PPP FAULTLINES In 2013, a Parliament Standing Committee criticized the Planning Commission for designing a flawed PPP model. One, the various clauses were borrowed from western contracts, and had no relation to unique local conditions. Two, the commission interfered in engineering and technical aspects of the projects, although it had no

experience in them. Three, the PPP allowed bidders to quote huge premiums to be paid to the government to bag lucrative projects. They took on a gamble, and hoped that they could cite reasons like GDP slowdown, policy bottlenecks and poor market as “fig leaf” to wriggle out of their commitments. In fact, several private players did exactly that. And threatened to abandon the projects if their demands to pay lower premiums, and get higher financial incentives, were not met.

Let’s consider how the Mumbai airport, like the Delhi one and capital’s airport metro line, became one of the biggest examples of corruption. Once the government decided to rebuild the airport by inviting private sector, MIAL was formed in 2006. The Hyderabad-based GVK Reddy Group owned 74 percent and the stateowned Airports Authority of India (AAI), the April 30, 2014

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INFRA/ ppp model/ mumbai airport

NAIVE FAITH (L-R) The majority partner in MIAL, GVK Reddy, and Prime Minister Manmohan Singh. The economist PM seems blissfully ignorant of the arm-twisting ways of PPP partners.

PIB

remaining stake. The latter leased out the airport to GVK for 30 years so that the private partner could recover investments and earn robust profits.

ADVANTAGE GVK When the agreement was signed in 2006, it did not mention that MIAL could charge development fees from domestic and international passengers in addition to the passenger services fees, levied for facilitation and security services at the airports. However, in May 2009, the government allowed the company to charge `100 per embarking domestic passenger and `600 per embarking international passenger for 48 months. This translated into additional revenues of over `1,500 crore for the Reddys.

This was before the government had formed the airport regulator, Airport Economic Regulatory Authority of India. The reason to allow development fees was MIAL’s argument that its costs escalated sharply from over `6,800 crore in 2009. Once the regulator was put in place, it allowed the airport operator to collect the fee from each passenger not just for two years, but for eight years (April 1, 2013, to April 1, 2021). The total amount that could now be

MIAL got several post-bid sops. These included huge development fee, sovereign guarantees, and securitization of future revenues to raise fresh loans.

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April 30, 2014

mopped by MIAL over this period jumped to almost `4,000 crore.

According to the regulator, the operator’s costs had ballooned to over `12,000 crore. In addition, MIAL had to pay an interest of over `1,300 crore on the extra loans it had to borrow from its original lenders to finance the higher investments. The regulator’s decision seemed bizarre and was at loggerheads with the thinking in the ministry of civil aviation and other stakeholders in the Mumbai airport project.

For example, the stakeholders said that the development levy may be pooled as equity contribution by the passengers to MIAL. At least, it will make the users as shareholders and prevent the company from boosting revenues and P&L account. Once they become investors, the passengers will happily pay extra charges.

In October 2012, the ministry decided that the extra funds required for the completion of Mumbai airport should be through equity contribution by the two promoters, GVK Group and AAI. In fact, the latter agreed to pump in an additional `293 crore as equity, but MIAL refused. The latter insisted there was no scope to infuse more equity. The regulator sided with MIAL and allowed development charges for eight years.

Why did the regulator show such generosity to the GVK Group? It is due to the extra charges that GVK Reddy heaved a sigh of relief; he took out full-page advertisements in newspapers which read: “My dream has been to create icons which will last for generations.”

The promoter should definitely thank the

airport regulator for the Mumbai project.

High development fees was not the only advantage that GVK enjoyed. In 2007, the same year when Singh raised those questions on crony capitalism, UPA-I extended sovereign guarantee to MIAL for the repayment of the latter’s almost `4,300 crore debt.

The government had no transparent guidelines on how such guarantees could be given to private players, who would use them to raise cheap loans, both domestically and globally.

In September 2010, the ministry of finance banned sovereign guarantees for private sector projects. Despite these curbs, MIAL has again asked the government for a similar guarantee for the over `2,600 crore loan it raised from its earlier lenders through the securitization of the future earnings through development fee. As mentioned earlier, the regulator allowed MIAL to even finance the interest component of this loan through development fee.

There are other technicalities involved in how MIAL gained from the Mumbai project. As mentioned earlier, the original agreement between the operator and AAI does not mention development fee. If other bidders had known that they could do so, they would have quoted a higher price. This is akin to giving an unfair advantage to a specific bidder.

QUESTIONS FOR PM IN response to the queries posed by Singh in 2007, we would like to ask him a few of our own. Does the post-bid permission to levy development fee, which was not even mentioned in the contract, amount to crony capitalism?

Does the permission to borrow against future earnings from the extra levy amount to crony capitalism? Does the grant of a sovereign guarantee in a nontransparent manner to a private player amount to crony capitalism? Is it not crony capitalism if the government resists a probe into allegations of gold plating, or a deliberate increase in investment costs?

The twisting of arms is a classic tactic in the art of crony capitalism. First, get the incentives. Then ask for more sops; if they don’t come, say the project is in trouble.

Worse, this agreement is totally silent on securitization of future revenues from whatever source, including development levy. In this case, how did the government allow it; the decision helped MIAL to raise the second loan of over `2,600 crore. If other bidders had known this was possible, GVK may not have bagged the project in the first place!

In addition, the contract provided for only one tri-partite agreement between MIAL, AAI and a consortium of lenders in case the operator needed to raise funds. This was signed when the operator borrowed almost `4,300 crore from an IDBI-led consortium. Therefore, there was no scope for MIAL to raise fresh loans. This implied that the operator had no legal justification to securitize future earnings from development fee, which, in itself, was not allowed under the bi-partite contract with the AAI. To help MIAL get out of this contractual mess, the arms of the authority are being twisted to amend the relevant contracts to allow MIAL to raise the second loan of over `2,600 crore. The changes will incorporate clauses to allow the operator to put earnings from development fee into an escrow account, whose charge would be created in favor of the lenders.

In a bid to force AAI’s hands, the GVK Group has threatened the former with dire consequences. According to official sources, both in the authority and ministry, the private player has warned them that if it is not allowed to securitize the development levy, the modernization project of the Mumbai international airport will come to a standstill. “MIAL told us that the lenders may even recall the loans,” says one of them.

This twisting of arms is a classic tactic in the art of crony capitalism. First, get the incentives.

Then ask for more sops; if they are not given, say the project is in trouble. Maybe, it is time for prime minister to answer his 2007 questions.

Maybe, he has known the answers all along. IL April 30, 2014

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INFRA/ ppp model/highways

JOURNEY TO NOWHERE several projects in the highways sector have failed due to graft and manipulation of bids

By Vivian Fernandes

I

t is possibly the last nail in the coffin of the ambitious private-public partnership (PPP) model in the highways sector. Forced, cajoled and even threatened by private players, the National Highways Authority of India (NHAI) is keen to renegotiate 23 such projects. This is despite allegations of favoritism, cartelization, and corruption in the award of many highways, and sops given to the private builder after the bids were finalized.

The comptroller and auditor general (CAG) and the courts have criticized the official agencies and private firms such as Enron, GMR Group, GVK Group and Reliance Power for the unusual concessions given to the latter’s infrastructure projects. Highway developers bid aggressively to bag contracts in 2011-12, and hoped that banks would willingly extend huge loans. The economic slowdown made the lenders wary. Hence, the private sector’s clamor for bailouts!

For example, the NHAI approved cost of Bangalore-based GMR’s six-lane, 555-km highway from Kishangarh to Ahmedabad was `5,500 crore. GMR believed the figure

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April 30, 2014

was underestimated by `2,300 crore. With banks backing off, the private partner wants to renegotiate the terms. It wants to pay 58 percent less premium than was originally envisaged in the contract. It wants the repayment of its `8,000 crore loans and interest deferred by several years. If NHAI accepts GMR’s conditions, other bidders will object and initiate legal action.

Gold plating is the rule in the highways sector. According to one estimate, the padding, or deliberate hike in investment costs, in the case of 14 projects was over `10,000 crore, or 124 percent of the costs approved by NHAI. If this is true, why is NHAI not keen to go for re-bidding of the projects, instead of doling out more incentives to the existing private developers?

The problem lies with NHAI’s past experiences. More often than not, when an infrastructure project undergoes a re-bid, the economics goes against the interests of the government, and in favor of the private developer. For instance, when Satyam Computer almost collapsed due to cooking of its accounts and finances by promoter Ramalinga Raju, his construction firm’s con-

No one accepts the blame for the PPP mess. NHAI and planning commission attack each other. The World Bank, which financed a few projects, criticizes both.

Anil Shakya

tract for Hyderabad Metro failed. Larsen & Toubro won the re-bid. However, the state had to offer it a subsidy of `1,250 crore, instead of the `30,000 crore premium that Raju agreed to pay originally. From a money spinner for the state, the metro turned into a financial burden.

But giving more concessions to the bidders, who have got into trouble because of aggressive premiums they offered to the government, cost escalations, or lenders’ apathy, may be fraught with different issues. If NHAI extends them to one highway developer, others will obviously join the queue. In addition, future bids will get distorted as bidders realize that they can get additional sops later.

I

ndia’s highway development program was initiated by former Prime Minister Atal Behari Vajpayee. The foundation stone for converting the BangaloreHyderabad highway to six lanes was laid on January 6, 1999. The Golden Quadrilateral connecting the major metros was meant to counter the effect of global sanctions following India’s nuclear tests in 1998.

The projects were entirely financed by the

government, and built by private contractors.

Over time, PPP became the preferred route.

Private developers were awarded projects on the basis of minimum subsidy sought or the highest premium offered. The investment was to be recovered from tolls. So far, 239 PPPs have been awarded for 21,600 kilometers at ` 1.87 lakh crore. However, the PPPs were mired in corruption charges. The Planning Commission blamed NHAI for fixing bids. The highway authority blamed the commission for draft agreements largely based on western experiences. The World Bank, which financed some of the highways, blamed both NHAI and commission.

A few years ago, a leading business magazine detailed out the modus operandi used to manipulate bids. In some cases, BOT (build, operate, transfer) schemes were changed to BOT-annuity ones. Under the former, the developer had to earn his revenues from toll; in the latter, the government paid fixed halfyearly payments to the developer, whose risks vanished. NHAI extended additional loans, over and above the contracted figure to complete projects. This de-risked the developer, but put extra burden on NHAI. Over-engineering was always a problem area. If a two-lane highway was required in an area, the potential bidders would coax the authority to opt for four- or six-lane one.

More flyovers, underpasses and side lanes were added to inflate project costs. There was also a cartelization of sorts. Either the tender was designed to favor specific bidders, or the winner was pre-fixed. In the latter case, competitors were dissuaded to bid, and promised another project later. Thus, although there were dozens of pre-qualified bidders for a project, only one or two submitted the final bids. It was a cozy relationship between government, NHAI and private firms. IL April 30, 2014

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LEAD/ cricket/justice mukul mudgal

FOURTH UMPIRE

the former punjab and haryana high court chief justice whose three-member panel submitted its report on match fixing and illegal betting in ipl to the supreme court spoke exclusively to INDERJIT BADHWAR and ALAM SRINIVAS. Their report: Anil Shakya

T

WO former presidents of the Board of Control for Cricket in India (BCCI) made a bombshell of a statement to the three-member committee. They told the panel, formed by the Supreme Court to ferret out facts about match fixing and betting in the Indian Premier League (IPL) that “matches involving CSK (Chennai Super Kings) and other IPL teams were fixed….” Nilay Dutta, one of the three members of the panel, who submitted a separate report, wrote that IS Bindra, former BCCI president, said that “he knew another former prominent Indian player was involved in match fixing… along with a former reputed Indian player.”

In early April, a newspaper reported that the secret envelope, submitted by the panel to the apex court, contained “unsubstantiated” allegations against 12-13 cricketers from five of the eight IPL teams, and three BCCI office-bearers involved with the league. In addition, the article said that the envelope had names of team owners, apart from CSK’s Gurunath Meiyappan, the son-in-law of the ousted BCCI president, N Srinivasan, and Raj Kundra, part-owner of Rajasthan Royals (RR).

Who are these IPL officials? Who are the former presidents referred to earlier?

Who are the former cricketers? Who are the 12-13 current cricketers? And, which of the eight team owners were involved in match fixing and illegal betting?

Justice Mudgal was reticent to reveal too much before the final Supreme Court order. But he still put several cats among dozens of pigeons. “The article was only partially correct. If the former BCCI presidents knew about match fixing, why didn’t they take action during their tenures?” When asked if the presidents were Shashank

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Courtesy BCCI

Manohar and Bindra, he made no comment.

When queried if the envelope included names of six cricketers, like skipper MS Dhoni and batsman Suresh Raina, he insisted that there were too many unsubstantiated allegations and it was imperative to protect the privacy and honor of anybody who may have been implicated wrongly or because of a vendetta.

However, the one name he discussed was that of Sundar Raman, IPL’s COO, who worked with past IPL commissioners like Lalit Modi, Chirayu Amin, Rajiv Shukla, and Ranjib Biswal. Justice Mudgal opened up when told that Sunil Gavaskar, India’s opening batsman appointed by the apex court to manage IPL 7 (2014), wanted to investigate charges against Raman, and that the latter was hand-in-glove with Gurunath and a few bookies.

“Raman’s name figured in a conversation that involved Vindoo Dara Singh (a bookie and son of wrestler and movie star Dara Singh). It is mentioned in one of the annexures in our report. There are several allegations that were not verified. We felt it was our duty to tell the court, but such charges could be made due to jealousy, spite, and exaggeration. We did not wish to sully reputations and make such names public.”

J

ustice Mudgal, who played cricket as a batsman in Modern School and has watched most tests in India since 1955, is passionate about the game. During the 110-minute conversation, he laughed, joked, got angry, and became serious. He felt that IPL has helped and harmed cricket; recommended that Dhoni be removed as test captain; was angry about racial bias in cricket; and said that police did not investigate IPL charges properly.

During the lighter and less-serious moments, he reminisced about former cricketers, and why Ranji and Duleep trophies should be renamed.

“IPL has been good for young cricketers; it has given them money. Many 18-year-olds, who hail from small towns—and I am happy about it because most players earlier were confined to the elite, and cities like Mumbai, Chennai, Kolkata and Bangalore—are flooded with money.” The cricket-loving judge pointed out: “In an IPL, a young player, who hasn’t played Ranji Trophy, can bowl a good over to a bats-

He opined that although Dhoni is gifted as a T20 captain, he has failed as a test skipper. He is too defensive, favours some players. Mudgal said he wouldn’t choose him to lead the test team. man like Kevin Pietersen (England). It gives him confidence. He rubs shoulders with the greats and sits in the dugouts with them and asks questions. It gives him immense knowledge and learning.”

However, there is the flip side. The youngster has to be cautious about the money. This is where the BCCI should have stepped in, and urged him to mandatorily invest 50 percent of his earnings in a three-year fixed deposit. The teenager finds himself engulfed in glamor, as he mixes with stars and celebrities he has seen only on TV or in newspapers.

The biggest drawback of the league is that most Indian players cannot play a single session in a test. The ability to play long innings, as Rahul Dravid and VVS Laxman did on Day four of the second test against Australia at Kolkata’s Eden Gardens in March 2001, is missing.

Forced to follow on, the Indian batsmen scripted a dream 376-run partnership that turned the match on its head. Against all odds, India romped to a 171-run victory against the Aussies, April 30, 2014

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LEAD/ cricket/justice mukul mudgal

who had won their previous 15 tests.

“Today, bowlers can get away with four good overs (maximum allowed in T20), but cannot do a good 10-over stint. They are players, who are excellent in T20, above-average in one-day games, but unfit for tests. The prime example is that of Ravichandran Ashwin, the off-spinner.

He is outstanding in a 20-over match, passable in ODI, but I would not pick him up in a test.

But that is my opinion; as you know, there are one billion cricket experts in India.”

O

ne can say the same about Dhoni, who is an excellent T20 captain. “He has great intuitions and backs his hunches.

But this is not so in tests, where he becomes too defensive. His obsession with some players becomes a disadvantage in a test. There were instances, when players became tourists on a tour. Dhoni won’t give them a chance. Going by his recent performances, I would not choose him as a skipper in the longer format.”

Justice Mudgal was livid about what he dubbed as incidents that “smacked of racial bias” in global cricket. “Certain players and officials (match referees) are singled out for harsh treatment. There are double standards in the way situations are judged. I have seen it time and again how players from India, Pakistan, Sri Lanka and West Indies are singled out for punishments. I have seen it in other sports as I am a member of the Court of Arbitration for Sport (a global body to facilitate the settlement of sports-related disputes).”

He gave examples of such biases. Chris Broad, the former England pacer, played 25 tests and 34 ODIs, but was appointed as an international match referee in 60 tests and 244 ODIs. Compare this with Indian pacer Javagal Srinath, who played 67 tests and 229 ODIs. His match referee record: 32 tests and 132 ODIs, or almost half of Broad’s. Sachin Tendulkar was banned for a game for ball tampering; South African Faf du Plessis was fined 50 per-

Niggling questions Apex court said Sunil Gavaskar should manage IPL 7; but the former opener is a huge beneficiary of BCCI and IPL. He has rarely criticized the board except in recent times. There were other accusations against him; in 2000, lakhs of rupees, including foreign exchange and traveler’s cheques, were found in his locker room at Bombay Gymkhana Club. A few newspapers said that commentators like Gavaskar hired by BCCI, deliberately did not criticize any of the latter’s actions and decisions.

Shivlal Yadav takes over Srinivasan's other roles in BCCI. But Yadav is the latter’s biggest supporter, even when there was pressure on Srinivasan to “step aside”. Yadav refused to ask for Srinivasan’s resignation and, in fact, supported his candidature for the president’s post in 2013 Srinivasan is allowed to represent BCCI at ICC. If he was not fit to run the board because of conflicts of interest and match-fixing charges against his son-in-law, Gurunath Meiyappan, how could he represent the country at a global forum? However, SC’s interim order is silent on this issue. Srinivasan’s supporters contend that BCCI can appoint any person as its nominee at the ICC, and it does not have to be the president himself.

Apex court allowed CSK and RR to participate in IPL 7; this was despite the Justice Mudgal Committee having found Meiyappan guilty of illegal betting, and recommending further investigations against RR’s part-owner, Raj Kundra.

Getty Images

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Courtesy Indian Premier League

cent of the match fee for the same offense.

Sadly, such prejudices turn into reverse ones.

“Why should the national tournament, Ranji Trophy, be named after Maharaja Ranjit Sinhji, who played for England, but never for India?

Why should Duleep Trophy be named after Duleep Sinhji, who did the same? Why can’t we name them after CK Nayudu, Polly Umrigar, Mushtaq Ali, Vinoo Mankad, and senior Nawab of Pataudi?” Justice Mudgal seemed disgusted and appalled when he raised these questions.

The mention of these former greats took him back down the memory lane. He remembered the West Indian pair of fast bowlers, Wesley Hall and Charlie Griffith. “Hall would start his 50-yard run-up almost from the sightscreen at Delhi’s Ferozeshah Kotla, but Griffith is the fastest bowler I have seen. Each time he bowled, I never saw the ball unless it was in the keeper’s gloves or hit off the bat.”

He then recounted a story about Richie Benaud, the legendary Australian captain, who first stationed himself at silly mid-off and then silly mid-on to catch India’s opening batsman, Pankaj Roy, on 99 runs. He described how Bishan Singh Bedi shocked Australian Dougie Walters, when he bowled him with the arm ball that whipped in as Walters shouldered it.

Justice Mudgal says a detailed probe into the May 12, 2013 IPL game between CSK and RR is needed to find out the truth behind allegations of match fixing against Gurunath Meiyappan.

A

s the conversation veered back to match fixing and betting, he talked about the role of police in IPL investigations. “The Delhi Police forwarded information about Raj Kundra and Umesh Goenka (bookie) to the Rajasthan Police, but the latter stopped the investigations. The Rajasthan Police said it had no jurisdiction as Kundra did not reside in the state but in London.”

Justice Mudgal’s report indicted Chennai police for not pursuing information about the involvement of a senior CSK cricketer in match fixing. Other leads got by Delhi Police and Mumbai Police—like names from Vindoo’s iPad, two Indian players mentioned by bookies, Chandresh Jain and Ashwani Aggrawal, and players named by fast bowler S Sreesanth, who was arrested—were forgotten.

Laxity of the police, BCCI’s smugness, lower ethics of players, and involvement of board’s officials and IPL team owners contributed to the mess in IPL. But the overriding issue in Indian cricket is about conflicts of interest. It is

about the conflict of interest between Srinivasan and his ownership of an IPL team (CSK), the conflict of interest between senior players and their agents, and the conflict of interest between cricket and commercial interests of all the stakeholders.

Unfortunately, conflict of interest was not a part of Justice Mudgal committee’s terms of reference. Hopefully, the Supreme Court will still grapple with it. And, as Justice Mudgal pointed out there needed to be a detailed investigation into the IPL game between CSK and RR, played on May 12, 2013, in which Gurunath and Vindoo fixed, betted and exchanged information about CSK’s score and how it would lose the game. IL

LOSING BALANCE IPL is a boon for younger Indian players in terms of exposure and learning, but some of them are too enamoured by glamour and money

April 30, 2014

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ECONOMY/ banks/ non-performing assets

CLUELESS AGAINST BAD DEBTS? RBI Governor Raghuram Rajan will have to address the issue of NPAs, which may drag down the banking sector

UNI

The missing `2.4 trillion a few of the state-owned banks may fail in the near future because of huge bad loans. while the policy makers are in hibernation, rbi has to walk its talk

By Shantanu Guha Ray 42

April 30, 2014

E

VER since he has landed in Tihar jail, Sahara Group’s top boss Subrata Roy has written reams and reams of notes. Jail officials say they have no access to them but presume he is writing about his experiences in Delhi’s maximum security prison. They claim there have been occasions when Roy has told inmates—some of them notorious killers—that “he has been wronged” by the UPA-II government.

Some nights, Roy, whose business has 4,799 establishments in its fold and `1.52 trillion in assets, including 36,631 acres of land, would be awake for hours. A Delhi newspaper reported that Roy, locked in Jail 3 that once housed India’s tainted telecom minister, A Raja, is suffering from high blood pressure and sleeplessness.

The Supreme Court’s decision to keep him in jail till he pays a bail bond of `10,000 crore was prompted by zeal to protect the so-called three million investors, who invested `24,000 crore in two of Sahara’s deposits schemes. But nothing happened to any of the senior managers, including Archana Bhargava, former chairman of United Bank of India (UBI), which is saddled with huge bad loans or nonperforming assets (NPAs). Bhargava resigned in February 2014.

“What is distressing is this is happening with UBI for the second time,” says Dhirendra Kumar, the founder of Value Research. In 2009-10, UBI’s NPAs shot up by almost 35 percent, and some of its big accounts went bad. The then chairman, Bhaskar Sen, admitted that during the financial year “we saw an addition of `980 crore bad loans, of which a slippage of `448 crore happened only in the last quarter”. But no lessons were learnt, claims Kumar.

Yashwant Sinha, former finance minister, said in an interview that Indian bankers never admit that they are under pressure from politicians and corporate captains. “It is mainly for the fear of reprisal. In India, a bunch of favored industrialist-politicians routinely change the lender’s rulebook and walk away with the loans. Banks have to declare it as NPA,” he added in a reference to UBI’s sanction of `100 crore to a Delhi-based realtor.

As a result, the banks’ list of defaulters—most of them with powerful connections—have increased manifold. In the case of the banks with high NPAs, no one is answering as to how to recover the loans. “The banks must tell us why they sanctioned such loans,” Sinha said. Has anyone asked the Reserve Bank of India (RBI) why state-owned banks have high NPAs,

mostly rising out of loans to dubious ventures?

London-based economist Lord Meghnad Desai finds the RBI’s silence disturbing. He says the country’s central bank has hardly analyzed inspection reports about the financial conditions of the banks.

He adds: “Good health of banks is always critical to the health of the economy. But it does not work that way in India. The banks operate under tremendous political pressures.” With game-changing elections around the corner, the onus, claims Lord Desai, is on the political parties to clean these scandals. “But nothing will happen,” he says.

GRIM SIGNAL There is high stress in the Indian financial system, where as many as 40 listed companies have reported combined NPAs of `240,000 crore during the quarter ended December 31, 2013. In the December quarter, the State Bank of India (SBI), India’s largest bank, reported the highest NPAs—in terms of quantum— worth `67,799 crore. The Bank of Maharashtra and UBI reported a 209 percent and 188 percent rise, respectively, in NPAs. “Rising NPAs indicate the Indian corporate sector is much on incubator,” says Pronab Sen of the Planning Commission. There are chances that bad loans of Indian banks will rise further, hit by a slowdown in business and slow economic recovery. Rating agency ICRA, in which Moody’s Investors Service own a significant stake, has said the gross NPAs of banks could rise to 4.2-4.4 percent of total loans by March 2014, from 4.1 percent as on December 2012.

The figure could further go up to 4.8-5 percent.

Up, up & away 6,000,000

200,000 180,000 160,000 140,000 120,000 100,000 80,000 60,000 40,000 20,000 0

5,000,000 4,000,000 3,000,000 2,000,000 1,000,000 0 2001 2002

2003

2004

All figures in ` crore

2005 2006

2007

2008

2009

Total Gross Advances

2010

2011 2012 2013 Gross NPAs

Source: RBI

April 30, 2014

43

ECONOMY/ banks / non-performing assets

This ponzi world

I

n the heart of the Indian Capital, judges hearing a case in the country’s apex court asked lawyers representing the West Bengal government: “What is the status report on the ponzi schemes (in your state)?” The lawyers instantly replied that some of the offenders had been sentenced and efforts were on to repay investors—the list included farmers, fishermen and low income earners—within a year.

“And what about the cash that is missing?” the judges asked again. The lawyers had no answer. “It is important to trace the missing cash; you should do it fast and let the court know what you have managed,” quipped one of the judges.

The lawyers, who claimed they knew the gravity of the situation, promised to revert.

In Siliguri, a town considered India’s gateway to the north-eastern states, thousands of duped investors took to the streets late March to protest against chit fund companies operating in West Bengal.

An estimated 25 people, including agents of the Ponzi schemes, have committed suicide in the state amidst report that more investment firms will collapse.

Such dubious schemes have been duping millions of investors in the country.

These take the name of ponzi after Charles Ponzi (1982-1949), an Italian businessman who cheated several customers in the US and Canada. Luring customers with the promise of 50 percent profit in 45 days, he would pay the earlier investors with the money he collected from later investors.

The scheme finally collapsed, causing his investors a loss of $20 million.

In India, the markets regulator, Securities and Exchange Board of India (SEBI), says the scam in West Bengal alone has resulted in at least `3.2 trillion in losses and has affected 3.3 million people.

RETRIBUTION TIME Saradha Group chief, Sudipta Sen (above) and his associate Debjani Mukherjee (left) arrested for the ponzi fraud

The Serious Fraud Investigation Office is investigating as many as 53 companies, the largest of which is the Saradha Group, which collapsed in April 2013. RBI says these companies promised returns of 100 percent in three years.

There are chances, claim officials of the Enforcement Directorate, that half of the cash collected by these companies has been illegally channelled to tax havens. SEBI says several operators confessed that they used the cash to acquire villas in Jordan and Dubai, oil businesses in Qatar and diamond businesses in South Africa.

Finally, through an ordinance, SEBI has got back the power to act against such ponzi schemes. As per the ordinance, there would be a compulsory registration with SEBI for pooling of over `100 crore. And the regulator has the powers of search, seizure, attachment and recovery.

The rating agency believes the reasons for this include business slowdown, stretched working capital cycles of companies and slow pace of recovery.

Gross NPAs of 40 listed Indian banks have grown to a whopping `240,000 crore in value terms at the end of December 2013, a rise of 36 percent from last year.

Government banks also face issues on capitalization, given the advanced capital requirements under the so-called Basel-III. “Although the public sector banks (PSBs) would not need significant common equity capital in FY15,

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April 30, 2014

in case they are unable to mobilize additional tier I capital during that fiscal, their equity requirement could go up from `20,000 crore to `45,000 crore,” ICRA said. “This could prove a challenge, given the government’s current level of capital infusion, the fiscal constraints prevailing, and the limited investor appetite for PSBs as reflected in the low valuation.”

The trillion-dollar question remains: Will rising NPAs further delay the recovery of India Inc? During election time, no one is really thinking of the question in Asia’s third largest economy. IL

COLUMN/ judiciary /up

JUSTICE FAR AWAY

though the state accounts for nearly half of India’s pending cases, its western region doesn’t have a high court

By Sanjeev Sirohi

Getty Images

MISPLACED PRIORITIES While the Jat community successfully agitated for reservations, the need for a bench in western UP has gone unnoticed

I

n a decision on April 9, the Supreme Court did not strike down the center’s decision to include the Jat community in the OBC list. It posted the matter for further hearing on May 1.

“Prima facie, we are satisfied with the material submitted by the government for providing reservations to Jats,” said Chief Justice P Sathasivam delivering his verdict.

The government demonstrated its commitment to the upliftment of Jats, a community to which I also belong. But, it has a certain bias against 26 other districts in western UP. Despite being a Jat, I am against reservation of any kind in the name of religion, caste or sex, except on economic grounds.

UNFAIR TREATMENT The main lacuna is that there is no high court in western UP. Instead, people here have to travel 700-750 km just to reach Allahabad, where the court is located. Ironically, the high courts of Himachal Pradesh, Uttarakhand, Haryana, Punjab, Delhi and even Lahore are nearer to

western UP than the one in Allahabad. Also, there are benches in small places such as Madurai in Tamil Nadu, Jalpaiguri in West Bengal and Dharwad and Gulbarga in Karnataka, with lesser population. Why is western UP getting a step-motherly treatment?

Take the number of cases in eastern and western UP. According to the Justice Jaswant Singh Commission, which was set up for settling this bench issue, it is western UP that has more pending cases. Almost 57 percent of cases in UP are from here, and yet, while the high court is at Allahabad, a lone bench is just 150 km away from Allahabad, in Lucknow. The commission, therefore, in the 1980s, recommended three benches of the high court for western UP. But it was ignored. There are high courts even in small states like Manipur.

Sikkim, which, at times, has just 50 pending cases, too has its own high court.

MORE CRIMES Considering that UP has the highest population with the largest number of districts, towns and villages, this is baffling. It also has the maximum number of judges and nearly half of all pending cases in India. In 2011, 33.3 percent of India’s crimes were reported from UP, which is why UP desperately needs a bench.

In 1955, Dr Sampoornanand, the then UP chief minister, recommended the creation of a high court bench in western UP at Meerut but it never happened. The present chairman of the UP Bar Council, Ajay Shukla, many senior lawyers of the Allahabad High Court and former judges too have lent support to this issue. If the center can give statehood to 10 districts of Telangana with a population of 3.52 crore, why can’t it concede one bench to a region with a huge population? IL

— Sanjeev Sirohi is an advocate based in Meerut. Views expressed are personal April 30, 2014

45

THE NATION/ elections 2014 / up politics / the aap factor

LOVE MINUS

in a caste-dominated landscape, kejriwal’s party has made a palpable impact. but will the show of affection for him translate into votes?

By Inderjit Badhwar Bisauli Gunnaur

BADAUN (Uttar Pradesh)

Bilsi Sahaswan

46

April 30, 2014

Badaun

VOTES?

F

ighting an election in Badaun—one of Uttar Pradesh’s most formidable 80 Lok Sabha constituencies—is for the bravehearts. It has been western UP’s Muslim-Yadav Rock of Gibraltar, where caste mathematics are the brick and mortar of a virtually impenetrable electoral edifice painstakingly constructed by Mulayam Singh Yadav, whose nephew Dharmendra Yadav is the reigning MPmonarch. Dharmendra’s development oriented approach has left him relatively free of the corruption-tarnished image of Netaji (Mulayam), his father’s elder brother.

Small wonder then that any party or candidate outside of the charmed circle of the prevailing caste paradigm has to hear repeatedly that he is the proverbial fool rushing in where angels fear to tread. Just consider the demographic and logistical dimensions of this constituency, which has within its fold Gunnaur, Badaun,

HAS THE AAP IDEA FINALLY ARRIVED? Photographs of the many faces of enthusiasm for Arvind Kejriwal and his Aam Admi Party

April 30, 2014

47

THE NATION/ elections 2014 / up politics / the aap factor

AT THE HUSTINGS (clockwise from left) Sitting MP Dharmendra Yadav; AAP candidate Hema Mehra; villagers donning AAP caps; and the door-to-door campaign of AAP candidate

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April 30, 2014

Bilsi, Sahaswan and Bisauli assembly seats, an agglomeration of mufassil towns, halfbaked sewer-clogged cities, and large and small electricity- and transport-starved villages, scattered at a one-way point to point distance of about 120 kilometers over spine-rattling, potholed roads winding through dung- and slush-choked lanes or fields ripening with another bumper crop of wheat and sugarcane and mustard. And mango orchards everywhere.

The voting population this time is about 18 lakh—over 4 lakh Muslims, 4.25 lakh Yadavs, 2 lakh Thakurs, over 4 lakh scheduled castes, and about 1.8 lakh brahmins, the remainder being other “backward” castes, banias, etc.

You can see how the electoral calculus repeatedly plays into the hands of the political-mathematicos juggling figures for Mayawati and Mulayam Singh. Whenever they are in power, their bureaucracies and police rule with iron.

Although Badaun has been a pocket borough for the Samajwadi Party, it was a Congress stronghold before VP Singh mandalized the area. It was the constituency of Sharad Yadav from 1989 to 1991 until he lost to BJP’s Chinmayanand in 1991 following a massive consolidation of the Hindu vote during the Ram janmabhoomi movement.

There have been periods of opportunistic

alliances, but by and large political time in Badaun has flowed as placidly as the Ganges which skirts it. Runaway corruption, nepotism, criminality, is a way of life.

And into this time and space Arvind Kejriwal’s Aam Admi Party has made a sudden and unexpected entrance.

Huh! AAP in Badaun? Is there even a hope in hell?

The daily newspapers, for reasons of their own, confine AAP’s Lok Sabha battles to a few columns in the city pages. So to find out what the real story is, I chose to burrow into Badaun’s political belly, for several reasons.

One, I have been burning with curiosity about whether AAP has made any impact on voters in rural India and have found no answers in the mainline media. Two, I was born in Badaun (Ujhani town) and raised in its grimly streets and flowering fields. Three, my younger sister, Hema Mehra, an AAP bhaktin, is the party’s candidate.

I have strong political preferences like you or anybody else but as a journalist I cannot let personal biases override professional concerns by doing a plug piece for Hema, which, in any case wouldn’t be possible, because this issue of India Legal will hit the stands after her campaign is over.

The main objective is to present an accurate footslogging report, with a fly-on-thewall access to the candidate and to the

familiar territory, on the impact of Kejriwal and AAP in a place like Badaun.

As I trudged through the constituency, I came to several remarkable conclusions: 1) AAP and Kejriwal have scored stunning recognition and sympathy for their views among both old and young voters in small towns, as well as remote areas; 2) The AAP factor has been a potent psychological and perception game changer; 3) There is a subtle but palpable goalpost shift from caste issues to performance and corruption; 4) The AAP perception wave will not turn into votes because the party has virtually zero ground level organization and volunteers are thinly spread; 5) AAP’s election coffers are virtually empty as compared to other parties with bulging pockets; 6) In many remote areas Kejriwal is a hero but there is a raging debate on why he quit the Delhi government; AAP’s campaigners are frustrated at the lack of support from the center but are resigned to see this campaign as an andolan to spread the word and prepare the groundwork for future elections.

Hema’s main electoral pitch: “Win or lose, I will not quit the battle against corruption, which has made a mockery of your lives.

Hum nayee kheti bo rahe hain. Isski sinchaii keejiye mere saath jur kar. Mujhe vote do ya na do magar bhrashtachar ke khilaaf to awaaz uthao!” (We are sowing a new har-

vest. Join me in irrigating it. Regardless of whether you vote for me or not, at least raise your voice against corruption.)

I recorded my observations in a series of tweets, which are modified and reproduced on the next page as a travelogue-diary in order to give you an as-I-felt-it account of what I observed. There were so many villages and so many people that I no longer remember them all, but what is important is that my reporting is based on a representative section of people and places. IL April 30, 2014

49

THE NATION/ elections 2014 / up politics / the aap factor

A catchy slogan composed by a Muslim proAAP supporter: “Bolo bolo har har Gange, sab beimaan ab honge nange!” (Mother Ganges, hail to thee, strip the crooks to make us corruption free). And: “Jhadoo chalega zoron se, hoshiyaar in choron se.” (Wield the broom with all your might, sweep the crooks ’gainst whom we fight.)

Looks like this election will be won by the party that is better at manipulating system thru muscle n’ poll fraud. But people seem to admire Kejriwal as a fighter. Surprising.

A passing remark: “If you really believe in the AAP vision then stand out as a whistleblower 2 xpose all trojan horses n’ frauds without fear or favor.‰ Overheard remark about AAP’s UP convener Sanjay Singh: “Sanjay babu learned his politics from Mulayam. Both venomous seat warmers with self-interest.”

Hema Mehra is repeatedly saying dat dis election is “andolan rather than vote grabbing. ‰ Badly organized campaign. Strong local candidate, but AAP office clueless re complex EC rules and no help frm on top. And, hah! Sanjay Singh and Yogendra Yadav 2 visit Badaun but local org clueless re time/route.

Kejriwal announces restructuring campaign org. But does he realize it may be 2 little 2 late 2 restructure? A shame that a visible pro-AAP upsurge is being squandered coz of absence of organization.

AAP local offices in UP either a sham or non existent. No help frm central office. Candidates cobbling up own organizations.

AAP doubtlessly made huge perception impact n’ shaken de major parties in this remote area, but no money, no skilled organizers.

Wow! Can’t believe it. Rural UP issues r solidly performance n’ anti-corruption. AAP ahead on 2nd issue, but supporters admit to damage caused by Kejri’s Delhi resignation drama.

After second day of tour, I don’t think senior AAP leadership realizes what kind of grassroots enthusiasm party has generated. But vote?

Mebbe next time…

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April 30, 2014

The AAP campaign in Badaun is a day-nightfootslogging, often lonely door-to-door campaign, but reward seems 2 come when villagers faces light up when u mention Kejriwal.

Not everywhere, but in places u least expect him even to be heard of!

Badaun rural campaign, UP, no electricity, no roads. But awareness and admiration for Kejriwal surprisingly high.

Hema Mehra’s AAP campaign from Badaun. In according with party principles she turned down armed security protection tho she is only woman among 16 candidates.

Visited cop station in Badaun city where AAP candidate told to file a daily advance route map with local thana for each campaign vehicle or face seizure! Is dis possible in any campaign where plans change minute to minute. Seems like harassment.

AAP Muslim supporter sez Muslim kids denied admission to primary schools, they have no alternative to fundamentalist madrasas. Hindus, pls wake up 2 need 4 secular education.

Another Muslim AAP campaigner sez postIndependence India and AAP recognize that despite some religious extremism Indian Muslims are most liberal, law abiding, patriotic.

Subdivisional magistrates are supposed to be working under Election Commission, but seems they are working in tandem with Mulayam Raj to harass AAP and other challengers.

First AAP 5-hour Pad Yatra through Badaun town through markets under blazing sun, and shortage of bottled water produced a huuuge

response. Shopkeepers, vendors, rickshawwallahs were screaming support, grabbing and reading pamphlets, grabbing and wearing AAP caps. Cd be just a tamasha or novelty but it appeared absolutely genuine.

Politically captive bureaucracy and cops harassing and imponding AAP vehicles carrying campaign brooms—the election symbol. Cops say it is illegal to carry brooms in campaign vehicles. By that token should they not ban cycles—the SP symbol? Why isn’t Kejriwal screaming?

Caps and pamphlets are in huge demand in remote villages and whistlestop chai shop meetings. More than what must have been 1,000 AAP caps grabbed from campaign cars.

And people are actually wearing them.

I have done round de clock questioning on Modi effect/wave. There appears to be recognition, certainly, but I don’t see a wave. BJP is certainly lagging behind SP. BSP campaign very silent and invisible but Mayawati’s Jatav vote bank still looks intact. Cd this turn out to be an AAP vs SP contest? That itself would upset the political applecart of Badaun.

Sez one AAP street volunteer: “Because of lack of grassroots organization AAP shd c dis election as a great curtain raiser for next assembly election.‰ Baramaikkera village, populated by Kurmis and Jatavs, showing electrifying Kejriwal awareness.

I thought Kejriwal was goofy until I stepped out of Delhi. May lose horribly, but he has certainly set the future agenda for political style and debate.

THE NATION / elections 2014 / armed forces / ballot rights

after years of legal battle, india’s soldiers win the right to vote from their posting stations

By Shivani Dasmahapatra

OPENING A NEW

FRONT 52

April 30, 2014

I

T was a battle of a different kind fought not by, but for men and women in uniform. After years of struggle by armed forces veterans, ordinary citizens and one parliamentarian, the Supreme Court, in an interim order, directed the Election Commission (EC) in March this year to allow defense personnel to vote while posted at peace stations. The order put soldiers on a par with other citizens in the voting field after a long time.

The victory was a long time coming. Until 1969, servicemen could register as voters at their place of posting, but things changed after the Nagaland assembly elections in 1969, when Wopansao, the losing candidate, went to court saying the results were skewed because of a large number of Assam Rifles voters. Both the Guwahati High Court and the Supreme Court rejected his appeal in 1971. Despite the verdict, the government issued a special order in 1972, saying soldiers could vote only through postal ballots and proxy voting in their original constituencies.

Even the EC, which had initially defended the right of soldiers to vote at their places of posting then, later reversed its stand. In 2008, the EC passed an order that servicemen should have resided in their place of posting for three years with their families to register as voters there. These rules made it almost impossible for any soldier to vote in his posting station. For years, veterans who had lost out on their right to exercise their franchise had complained about the EC’s apathy towards the country’s 23 lakh soldiers while it went out of its way to register voters in far-flung areas.

March’s landmark ruling came after two public interest litigations (PILs). The first PIL was filed in December 2013 by Supreme Court advocate Neela Gokhale, an army officer’s wife; the second was in March 2014 by Rajya Sabha Member Rajeev Chandrasekhar, an air force officer’s son.

“There is an overall sentiment among veterans and serving personnel that their concerns and issues don’t come to the fore. My main effort is to highlight these issues,” says

Chandrasekhar. He also started an online petition on change.org to create awareness about difficult regulations imposed on service voters. As many as 77,000 people from all over the country supported the campaign.

“It’s a beginning,” says Gokhale, who had experienced the difficulties as an army wife.

“Only a few service personnel were registered as voters and only a few were able to vote on timely receipt of postal ballots. Now things should change.”

FIGHT FOR RIGHTS (L-R) Lt Gen (Retd) SK Bahri, Rajya Sabha MP Rajeev Chandrasekhar and Brig (Retd) VS Mahalingam at the Election Commission office during their struggle to ensure voting rights for the armed forces personnel at their duty stations

B

ut the legal battle isn’t over yet. A constitution bench is still to hear the matter of voting by soldiers in non-peace stations. Chandigarh-based Brigadier (Retd) HS Ghuman took up the issue in 2009 when he filed a writ petition in the Punjab and Haryana High Court, seeking the right of soldiers to register as ordinary voters in their place of posting and deletion of rules in the 2008 order saying they violated the Representation of the People Act, 1951.

The court dismissed his case in 2013, saying armed forces personnel had not been denied voting rights and that the move would change the demographic character of constituencies with small electorates. Brigadier Ghuman is cautious about the latest Supreme Court order: “It is a part order; the correct order should have been to register all armed forces personnel as voters in their place of posting anywhere in the country and not just in peace stations.”

Armymen defend the country in the most inhospitable terrains, but their right to vote was largely ignored. Some didn’t cast a ballot during their entire service life.

April 30, 2014

53

THE NATION / elections 2014 / armed forces / ballot rights

SIGN IN TO CHANGE Signatures of supporters as part of a petition by change.org being taken to the EC

Brigadier Ghuman is one of many veterans angry at the voting hurdles faced by soldiers.

He says he never voted during his entire military service, partly because the electoral registration officer never registered soldiers at any station. “The law has not changed since 1971 but the EC is acting like a political party and bending laws on its own,” he says.

Like him, Brigadier (Retd) VS Mahalingam was never able to cast his vote during his 36 years of service. He says that every place of posting has its set of local problems and so it is only justified they vote from there. He never received the postal ballots on time; sometimes they reached weeks after election results were declared. “The Supreme Court has sent a clear message to the establishment to uphold our democratic right,” he says. “The vote of a soldier has had no worth, but that must change now.”

S

ome observers say the latest order could lead to the politicization of the armed forces. But Brigadier (Retd) Vijay Raheja dismisses the fears. He says troops are unlikely to be ignorant of the country’s political scenario because every barrack and mess has a television set. “They display no confidence in the very same men who stand guard at the borders and lay down their lives fighting for the nation,” he says.

Parliamentarian Chandrasekhar, who fought to implement the “One Rank One Pay” policy for the armed forces, agrees. “It is every citizen’s right (to vote). But if there are any concerns, then more the reason our sol-

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April 30, 2014

diers should be made politically aware and democratically empowered.” Brigadier Ghuman says there is a clear demarcation between exercising your franchise and politics. “What we want is for the services to be part of the electoral process; that does not mean we will be politicized,” he says.

Veterans who lost out on the chance to vote in past elections are not the only ones in favor of the soldier’s right to exercise his franchise. Some young officers, who did not want to be identified, told India Legal that the government took all decisions, from their uniforms to rations and artillery, but they were kept away from participating in the exercise to form and change the same government.

Some were upset that the interim order only applied to peace stations. “I have just returned from Siachen. Does this mean I am fit and capable enough to serve the nation even at 18,000 feet but not capable to exercise my right to vote?” asked one officer.

Lt General (Retd) SK Bahri, who heads the Indian Ex Servicemen Movement, says it is discriminatory that soldiers posted in different states are excluded from the voting process while politicians exploit the presence of migrant workers from other states to garner votes in their constituencies.

He recalls how an election officer came to his house during his four-year tenure in New Delhi to register all civilians employed there but did not register him and his family members. The one time he received his postal ballot in service was in 1975 when he was posted in France, but it reached him after the elections were over.

The Supreme Court took into account the fact that about 132,600 service personnel have already registered as service voters and directed the EC to make postal ballots for them effective. According to Bahri, about 700,000 to 800,000 soldiers will be able to vote at peace stations. While the Supreme Court interim order is a definite step towards recognizing the men and women in uniform as citizens with equal voting rights, veterans say the ideal outcome of this unfinished battle will be when every soldier posted even at Siachen, the highest battlefield in the world, takes his finger off the trigger to press the button on a voting machine. IL

THE NATION/ elections 2014 /voters’ boycott

Vote against

hundreds of villages plan to shun polls, as they are angered by lack of water, health centers, land rights and irrigation facilities. will this form of nota make an impact?

By Bhavdeep Kang Getty Images

TRIBAL TOURISM Congress leader Rahul Gandhi met tribals in Lanjigarh, Odisha, in 2010. The locals have decided not to vote this elections.

April 30, 2014

55

THE NATION/ elections 2014 /voters’ boycott

I

n the biggest election in history, with 814 million registered voters, a few hundred thousand “missing” ballots hardly matter.

Those who boycott the elections in protest against the political establishment’s failure to deliver find their angst reduced to a fourth or fifth place decimal in polling percentages.

Yet, the calls for election boycotts are heard down the length and breadth of India, not just from militants (Kashmir) and Maoists (eastern belt), but elected panchayats as well. The reasons are as varied as lack of potable water, primary health centers, roads, power and irrigation facilities; insults on dalits; and leopard and wild elephant attacks on locals. The protests come from places as varied as Delhi’s prestigious sub-city of Dwarka, verdant Niyamgiri hills of Odisha’s Rayagada district and the lowlands of Alappuzha city in Kerala.

In Uttar Pradesh’s Akbarpur, six villages have decided to stay away from polling on April 24 to protest against lack of power and roads. To the north, on the Indo-Nepal border, villages in Shravasti and Balrampur will not venture forth to booths, in terror of man-eating leopards that have claimed a dozen lives in eight months.

Some of the grievances are long-standing. Over 90 villages in Jharkhand’s Dumka will boycott the April 24 election to call attention to four decades of injustice. Displaced in 1956 by the Masanjor Dam on the Mayurakshi River, these villages still await compensation. Then there’s Pipraua village in Madhya Pradesh’s Datia, where people haven’t voted in 10 years because a promised all-weather road hasn’t materialized. Their silence was not heard in 2004 and 2009 also.

G

iven the sheer size of the electorate, threats of poll boycotts are a poor tool for protest movements. But they are still relevant, says constitutional expert Subhash Kashyap, who sees these pockets of protest as a wake-up call.

“There’s a disconnect between people and politicians, and tremendous erosion in the credibility of the political class. People are fed up and disgusted with politics. Political institutions have been deinstitutionalized, as it were”.

Is there a substantive difference between the

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April 30, 2014

NOTA-worthy protests Thirteen villages of Bailhongal Taluk (Belgaum, Karnataka) took out a procession with empty pots and threatened to boycott polls because they don’t have drinking water Karadikal village (Madurai, Tamil Nadu) has decided to boycott elections unless jallikuttu, the traditional sport of bull-taming, was allowed Sultanpuriya village (Sirsa, Haryana) will not vote in 2014 because officials haven’t addressed the issue of high salinity of underground water Balakrishnampatti (Trichy, Tamil Nadu) will protest against the shift of a primary health center to another locale Fifty villages in naxal-affected Gadchiroli, Maharashtra, have announced a boycott to protest against denial of land pattas under the Forest Rights Act Sikh families in Kupian Palt (Kurukshetra, Haryana) have decided not to exercise their franchise in protest against eviction from their land Villagers of Sakleshpur (Hassan, Karnataka) will sit at home on voting day in

protest against wild elephant attacks Dongria Kondh tribals (Niyamgiri hills, Odisha) have decided to boycott polls because they’ve been denied basic services In Alappuzha (Kerala), famous for its backwaters tourism, villagers have decided not to vote in protest against lack of potable water Residents of 91 villages in Dumka (Jharkhand) have resolved to shun elections to protest against displacement Piprau village (Datia, Madhya Pradesh) will boycott yet another election to press for an all-weather road Six villages of Ghatampur tehsil (Akbarpur, Uttar Pradesh) will refrain from voting because they haven’t been provided potable water and roads Residents of Budha Khera Lather village (Jind, Haryana) have decided to abstain in protest against the government’s failure to expand an irrigation canal Delhi’s Dwarka sub-city has announced it would not vote and stop paying property taxes to protest against the massive shortage of water

calls for election boycott made by Kashmiri militants, or the naxals of Rayagada and the decision of the panchayat of Budha Khera Lather in Haryana’s Jind district? For instance, Maoists have sent bulk SMSes calling for a poll boycott in several districts of Bihar. The state police tore down election boycott posters, but don’t know how to tackle this particular innovation. Or whether it should at all?

Technically there is no difference between the two kinds of boycotts, according to constitutional scholar and author A Surya Prakash, who has written What Ails Indian Parliament. He says: “Every registered voter has the right to vote and so long as voting is not mandatory, every elector has the right not to exercise this right. However, if there is an organized poll boycott by groups and entities, and electors are prevented from exercising their franchise through threats, protests and intimidation, there is enough in the penal code and election laws to take action against such persons.”

But in effect, when the voters refuse to go to the polling booths, they are exercising the “none of the above” (NOTA) option, which will be introduced in the ballot papers for the first time in the national elections. “If voters choose to stay away in

REASONS, SMALL AND BIG (L-R) While Karadikal village in Tamil Nadu will stay away from polls unless their bull-taming sport jallikuttu is allowed, for many villages in Dumka the worrying issue is displacement

Given the sheer size of the electorate, poll boycotts or NOTA are more an expression of anger. To become effective, these need to be become the right to reject.

April 30, 2014

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THE NATION/ elections 2014 /voters’ boycott

ISSUES GALORE (L-R) While Budha Khera Lather village residents in Jind district of Haryana want extension of an irrigation canal, Sikh families in Kupian Palt in Kurukshetra district of the state are upset about eviction from their land.

groups, it is a group exercise in NOTA,” says Surya Prakash. It’s a right upheld by the Supreme Court in a ruling on September27, 2013.

Directing the Election Commission to provide a NOTA button on electronic voting machines, the apex court held that the provisions of Rule 49-O, under which an elector not wishing to vote for any candidate had to inform the presiding officer about his decision, are ultra vires (beyond the powers) of Article 19 and Section 128 of the Representation of the People Act (RPA), 1951. The order was in response to a petition filed by the People’s Union for Civil Liberties.

The EC subsequently clarified that NOTA did not amount to a right to reject. Clause 64(a) of Conduct of Elections Rules, 1961, read with Section 65 of the RPA makes it clear that the candidate who has polled the largest number of valid votes is to be declared elected, even if the number of electors opting for NOTA is more than the number of votes polled by any of the candidates.

A

s it stands, says Kashyap, NOTA is merely an expression of anger and disgust. “No one is going to queue up at a polling booth for two hours to exercise the NOTA option, unless there is a right to reject, which would allow for repolling if the majority of votes are for NOTA.” With many people expressing their lack of faith in the system, is there a case for the right to reject?

Social activist Anna Hazare seems to think so. In a recent public meeting he said, “The Jan Lokpal has come, Right to Information has come and Lokayukta would also be made. Now, we need the ‘right to reject’ in this election. All the miscreants and corrupt people of this country are leading the democracy these days”.

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As Shankkar Aiyer, the author of Accidental India: A History of the Nation’s Passage Through Crisis and Change, points out: “The right of NOTA must be accompanied by a provision that annuls the poll when the NOTA votes cross a particular percentage. Voters require a real right here—to convey their point to political parties about the quality of candidates.” Supreme Court lawyer Rajeev Dhawan agrees that NOTA, as it exists today, amounts to a “wasted vote”.

The Aam Admi Party has included this right in its “to-do” list. “We know many candidates are either corrupt or criminals. But our current voting system forces us to choose one and waste our vote on someone we know is unfit for the job. We, the people’s party, plan to give the voter an alternate choice—a ‘reject all’ button. If you dislike all candidates, you will have an option to use this button.

If this button gets the majority of votes, the elections to that constituency will be cancelled,” reads its manifesto.

BJP’s prime ministerial nominee, Narendra Modi, is a long-standing advocate of the right-toreject option. He has twice piloted a bill on compulsory voting and the right to reject through the Gujarat assembly, only to have it shot down by the governor. Even before the SC ruling on NOTA, he told a group of young professionals in Ahmedabad: “At present voters have to select a candidate put up by the party irrespective of his background. But if right to reject is given, they can reject all candidates. Political parties, fearing the rejection, will be forced to give tickets to good people.”

Netizens across the country have launched a campaign for the “right to reject” on social media.

At least a dozen FB pages canvass for legal amendments to the RPA to give NOTA more teeth. IL

PROBE/ osho’s followers/ money laundering

MONEY CHANGERS DESECRATE THE BHAGWAN shell companies, trusts with similar names, forged signatures and false documents were allegedly used by some devotees of Rajneesh. in the process, they channeled millions of dollars into their pockets

By Vishwas Kumar 60

April 30, 2014

Anil Shakya

I

F you are a follower of Bhagwan Rajneesh, or Osho, and wish to purchase a book or CD comprising his teachings in India, remember the money may go into the pockets of those conspiring to grab the late guru’s global assets. The reason: the copyright for these books and CDs are held

by Osho Multimedia and Resorts (OMR), which was registered as a private limited firm in Mumbai in 2001. Although the shareholders and directors of OMR are Osho devotees, the firm’s annual earnings of over `5 crore go into the pockets of individuals. And since its creation, OMR has possibly earned a cumulative amount of `180 crore.

In case, you wish to purchase Osho’s books and CDs overseas, the money may go to the Zurich-based Osho International Foundation (OIF). The foundation, which owns the global copyrights, has nothing to do with the original OIF, registered in Mumbai and based in Pune.

The Zurich entity is a namesake whose president is Michael O’Byrne alias Swami Anand Jayesh, a Canadian citizen. O’Byrne was president of Osho’s “Inner Circle” and whipped out Rajneesh’s will 23 years after his death. All these years, his closest followers maintained that he had left no will. (See the story: Controversial Legacy, dated March 31, 2014).

COMPLICATE AND CONTROL While he was alive, Osho said: “The mind that is full of greed, the mind that is constantly obsessed with money, is already in hell.” Sadly, 24 years after his death, his main devotees have allegedly floated a maze of companies, registered in India and abroad, which are being used to fulfill their voracious materialistic demands.

The spiritual leader’s senior followers don’t care

UNHOLY DRAGNET The money from the sale of Rajneesh’s books and CDs is deceptively channelized into a private firm, Osho Multimedia and Resorts

about the heaven or hell after their deaths. They aim to create an earthly heaven, where money, power and personal ambitions are paramount.

Over the past two decades, dozens of shell companies and trusts were set up, documents were backdated through forged signatures or false documentation, and the entities were personally controlled by select individuals.

Companies and trusts with the same or similar names were registered globally to allegedly confuse investigators, and genuine followers, who could not spot the manipulations. Over time, there were charges that huge amounts were siphoned off from Osho’s trusts to fill personal coffers.

The creation of OMR and Zurich-based OIF, and their getting hold of copyrights of Osho’s books and CDs, is a saga that’s both complex and frightening. During Rajneesh’s lifetime, the copyrights were held by Jeevan Jagriti Kendra, which was registered in 1969. Six years later, it was renamed Rajneesh Foundation. In 1991, after Osho’s death, a New Jersey-based American entity, Child Villas Rajneesh Meditation Center, claimed that it had some of the rights, which were transferred by Rajneesh Foundation’s trustees back in 1980.

After the registration of these copyrights and Intellectual Property Rights (IPRs) in its name, the meditation center changed its name to Rajneesh Foundation International in 1985.

A series of other renames took place—to Rajneesh Friendship Foundation (1986),

Copyrights of Osho’s books and speeches were transferred from Jeevan Jagriti Kendra to Rajneesh Foundation to OIF (Zurich) and OMR (India).

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61

PROBE/ osho’s followers/ money laundering

Forfeiting legacy

O’Byrne made the most of his links with Osho

Sarda made his way up as a close crony of O’Byrne

Michael O’Byrne alias Swami Anand Jayesh is a former property developer and Canadian citizen. He joined Osho in the mid-1980s, but vanished in 1987 due to non-payment of over $1.3 million to Bank of Montreal.

Later, he became one of the closest followers of Osho and was a member of the “Inner Circle”. After Osho passed away in 1990, O’Byrne formed the Osho International Foundation in Zurich and became its president. The foundation owns the global copyrights for Osho’s books and speeches. Last year, he surfaced with Osho’s disputed and controversial will, which named him as the executor.

Mukesh Kantilal Sarda alias Swami Mukesh Bharti was a milk delivery boy who became a devotee of Osho in the early 1970s. In the early 1980s, he followed the spiritual leader to the United States, but returned to Pune in 1987. Sarda was always O’Byrne’s blue-eyed boy, and became the managing trustee of Neo Sannyas Foundation and Pune-based Osho International Foundation. He is a director in Osho Multimedia and Resorts, which owns the Indian copyrights for Osho’s books and speeches. He is also indirectly connected to the Darshan Trust, which was gifted several properties by the Osho Trust based in Pune.

Neo Sannyas Foundation (1989) and Zurichbased OIF (1990). At some point in time, Neo Sannyas transferred the copyrights to OIF (Zurich), which transferred the Indian rights to the privately-held OMR. Consider the fact: While the Zurich-based OIF was registered in 1990, or in the same year that Rajneesh died, the Mumbai-based original took birth in 1991. Many Osho followers charged that the documents related to the Zurich-based OIF were backdated in an attempt to prove that Neo Sannyas transferred the copyrights and IPRs to it even before the Mumbai-based foundation came into existence.

Thus, the Mumbai-based OIF could not claim ownership of the copyrights.

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Two alleged masterminds behind these corporate shenanigans seem to be O’Byrne and Mukesh Kantilal Sarda alias Swami Mukesh Bharti, the managing trustee of the real OIF. The Pune-based OIF, unlike the Zurich-based namesake, owns Osho’s Pune ashram and its properties in India, which are worth over ` 1,500 crore. The duo have collaborated, calibrated and complicated the linkages between the various firms and trusts in a bid to take over control of these properties in India and abroad.

O’Byrne was a former property developer.

He joined the Oregon commune in 1984, but was accused for the non-payment of over $1.3 million to Bank of Montreal in 1987. After Rajneesh’s death, he dissolved his “Inner Circle”, and floated a new trust, Osho International Presidium, which was registered in Zurich and headed by him.

Sarda, a milk delivery boy, became Osho’s devotee in the early 1970s. He became Byrne’s loyalist and the managing trustee of Neo Sannyas Foundation and the Pune-based OIF. Osho followers charged that the two conspired to benefit themselves and friends. A few shareholders and directors of OMR, which holds the India copyrights, are Sarda, Vidya Khubchandani, Anand Kumar Awasthi, Lal Pratap Singh and Devendra Singh Deval. They are connected with the Pune-based OIF, Neo Sannyas Foundation and the Delhi-based Darshan Trust, which turned out to be a huge beneficiary of Osho’s properties.

For instance, Khubchandani is an ex-trustee of OIF and the present trustee of both Neo Sannyas and Darshan Trust. Awasthi alias Swami Anand Satyarthi is an ex-trustee of both OIF and Neo Sannyas, but an existing one of the Darshan Trust. Singh alias Swami Yoga Pratap, and Deval alias Swami Devendra Bharti are trustees of OIF, but ex-trustees of Neo Sannyas. Logically, they could be behind the properties transferred to Darshan Trust or copyrights to OMR. “Notably the trust (Neo Sannyas) and private company (OMR) have same addresses and same trustees, directors and shareholders. This (OMR) has been created by the trustees (of Neo Sannyas) as a special vehicle to siphon off funds of the Trust,” revealed documents submitted by two of Osho’s followers, Yogesh Thakkar and Kishor Raval, in the Mumbai High Court.

Sarda and O’Byrne contend that Neo Sannyas Foundation doesn’t exist anymore. It was merged with OIF (in Zurich) and, logically, the copyrights and IPRs held by the foundation were legally transferred to the latter, which transferred the Indian rights to OMR. Information available on www.sannyas.org states that Osho International New York is the international publishing headquarters for all Osho’s works, which is managed on behalf of Osho International Foundation, Zurich. It adds that the New York-based company “represents all works by Osho as a literary agency and administers the worldwide rights for the Foundation.” The copyright clause states that “Osho International Foundation is the sole and registered owner of all the copyrights to all the published and unpublished words and works of Osho, as the Author in all mediums….”

Thakkar and Raval counter that the Neo Sannyas Foundation exists and dispute its merger with OIF (Zurich). They claim the copyrights of Osho’s books still rest with the foundation. However, they will need to present documents, which may be decades old and may not even exist to prove that the copyrights rest with Neo Sannyas and not OIF (Zurich).

TRAIL OF DECEIT There are other deals, which look suspicious.

For example, in 1988, the Pune-based OIF trust signed a tripartite deal with two private firms, Zen Properties and Godrej Properties and Investment to construct a guesthouse and meditation hall in Pune. The construction was to be on a plot owned by the trust, which was situated next to Diamond Hotel (now Vivanta) at Koregaon Road. The estimated cost: `16 crore.

Zen Properties was roped in only as a middleman, although the official reason was to “facilitate construction” because the trust lacked adequate funds. The work was done by Godrej

STEADFAST ON THE PATH Despite allegations of corruption surfacing against some close followers of Osho, his followers at large continue to cling to his beliefs

Properties, but Zen Properties earned a consultancy fee of ` 1.19 crore without being involved in the construction.

Three years later, Zen Properties vanished from the scene. Thakkar and Raval believed that this was Sarda’s way to siphon off money since he controlled the Pune-based OIF trust.

And, this was done while Osho was still alive.

As revealed in India Legal ’s March 31, 2014, issue, the Pune-based and Sarda-controlled OIF decided to “gift” properties worth `90 crore to Darshan Trust, whose registered office was in Delhi’s Defence Colony. The two trustees of Darshan Trust were OIF’s former trustees, Khubchandani and Awasthi. The duo was connected with Sarda’s OMR. Thakkar and Raval contended that the properties could have been used to make OIF financially stable.

In 2010, the Pune-based OIF mortgaged properties to raise `3 crore from Corporation Bank, Pune. Couldn’t the ones gifted to Darshan Trust be used in a similar manner to help Osho’s trust and his followers? Sarda remained evasive when India Legal asked him about his linkages with OMR and Darshan trust. “The matter is subjudice,” he replied.

It is time for O’Byrne and Sarda to remember Osho’s words: “It (the mind) is already out of paradise—because paradise is there when you are simply not clinging to anything whatsoever. An unclinging mind is paradise.” IL April 30, 2014

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AVIATION/ misbehavior on flights

GOONS IN THE

AIR

unruly travellers cause forced landings or change of flight route, but still go scot-free due to legal loopholes. this could change if the 1963 tokyo convention is amended

By Shobha John Uday Shankar Ganguly

64

April 30, 2014

W

HEN Pratibha, a young air hostess, was called for the fifth time by a passenger flying on the Delhi-Hong Kong route, she was in tears. The passenger, a 23-year-old Indian, had been drinking non-stop and was fast losing control over himself. He was harassing and abusing her in the choicest of Hindi curses and even tried pulling her hand. Finally, she complained to the cabin-in-charge. When the plane landed in Hong Kong, the inebriated man was handed over to the no-nonsense security. Pratibha says, “I have never felt so relieved.”

Instances of “unruly” behavior among air passengers are on the rise. Data from an International Air Transport Association (IATA) survey shows that between 2008 and 2011, 15,000 air hooliganism cases were registered worldwide. Airline crew say that it is rampant and especially so when the passenger has had a drink too many.

According to IATA, a representative body of some 240 airlines, such behavior could cause a change of flight route and forced landing, and cost airlines between $10,000 to $200,000. In addition, large aircraft may have to dump fuel and pay landing fees, accommodation costs, ground handling charges and cost of new fuel if a plane is diverted due to such a passenger. In many cases, new crew will have to be assigned to operate the onward flight, adding to time and cost. Rarely are airlines able to recover the cost, as the passenger doesn’t have the wherewithal to pay up.

BRING ’EM TO BOOK Efforts are now being made to change legislation so that action can be taken against such passengers. The Tokyo Convention of 1963 deals with crimes on-board a plane, but is in desperate need of amendment. The convention gives jurisdiction over offenses committed onboard an aircraft to the country where the plane is registered. “So, for an Indian-registered aircraft, only Indian authorities have the authority to pursue such cases. If an incident happens on an Indian-registered aircraft which lands at a

foreign destination, the police of that country will not have the jurisdiction to take action,” explains Albert Tjoeng, assistant director, corporate communications, Asia Pacific, IATA. “Unruly passengers are, therefore, often not prosecuted and get away. This is why IATA is advocating for jurisdiction to be extended to state of operator, state of landing and state of aircraft registration,” he adds.

The aviation scenario too has changed.

Today, 40 percent of planes are leased, as opposed to just 3 percent in 1980. Often, the place where the aircraft is registered is neither the place where it lands nor the one from where it took off. “Therefore, without extension of jurisdiction, the Tokyo Convention will simply become outdated,” says Tjoeng.

IATA has, therefore, appealed to the International Civil Aviation Organization (ICAO) to review the Tokyo Convention.

Tony Tyler, IATA’s director general and CEO says: “The Tokyo Convention was not originally designed to address unruly behavior and there is a lot of uncertainty among

BEARING THE BRUNT Air hostesses of an Air India flight; increasing cases of hooliganism are not only creating problems for airlines’ crew in general but have put a question mark on air safety

Today, unruly passengers can be booked in countries, where the plane is registered.

IATA wants this to be extended to destination nations and state of operators.

April 30, 2014

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AVIATION / misbehavior on flights

TICKET TO MISBEHAVIOR? More and more people are getting the wherewithal for air travel, but with access to comfort should also come civic sense Rajeev Tyagi

Law unto themselves November

22, 2012: A drunk passenger on an IndiGo Delhi-Nagpur-Pune flight tried to enter the cockpit and created such a scene that the pilot had to intervene. The passenger was remanded to seven-day magisterial custody and charged under the Safety of Civil Aviation Act, 1982.

October 19, 2012: A hijack scare was triggered at Thiruvananthapuram by a lady pilot, who was alarmed by some unruly passengers.

August 17, 2012: Three inebriated passengers onboard Air India Express 813 from Mangalore were handed over to Dubai security officials after they misbehaved during the flight, demanding more liquor and using abusive language.

January 8, 2014: American fashion designer Ralph Lauren’s niece Jennifer was convicted for drunkenness, and threatening and abusive behavior onboard a Barcelona-New York Delta flight. The flight was diverted to Shannon in Ireland and cost the carrier more than $43,000.

June 3, 2013: A group of about 100 high school students, due to travel from New York to Atlanta were kicked off an AirTran flight after they failed to sit down and turn off mobile phones.

February 21, 2014: The Kerala Strikers team, participating in the Celebrity Cricket League and representing Malyalam film actors, was off-loaded from a private carrier on the flight from Kochi to Hyderabad, for alleged misbehavior. The takeoff was aborted and the flight got delayed.

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carriers as to what actions crew can take to manage incidents in the air.”

So serious has this issue become, says D Sudhakara Reddy, president of the Air Passengers Association of India, that most of India’s domestic airlines, which fly international, have stopped serving alcohol to economy class passengers. “ICAO’s step is a welcome one and India being a member of it, will be bound by the amendments made.”

Statistics on unruly passengers from the Safety Trend Evaluation, Analysis and Data Exchange System (STEADES), a database of IATA, show that there was a 14 percent increase in unruly behavior from 2010 to 2011 (see box above).

Preliminary data for 2013 shows that 8,217 unruly passenger reports were received, showing a substantial increase. Of the incidents from 2007-2011, 20.9 percent were serious enough to require the intervention of the police at the place of landing.

While alcohol is a big source of nuisance, other instances of unruliness are: consumption of narcotics or cigarettes

refusal to comply with safety instructions verbal/physical confrontation with crew

members or other passengers interference with crew duties making threats that could affect the safety of the crew, passengers and aircraft sexual abuse or harassment LACKADAISICAL RESPONSE While participating airlines in the IATA survey claimed that incidents were dealt with properly when the place of landing was its home jurisdiction, cabin crew said that was often not the case in India.

A senior air hostess with a private airline in Delhi says: “There is no will among security agencies in India to act on a complaint regarding a passenger’s unruliness, no matter how serious it is. Once, a passenger touched an air hostess inappropriately, but when we complained, the security here kept asking us again and again if the incident had actually happened. Passengers too know they can get away and act more aggressively within the country.”

However, the treatment abroad is vastly different, she says. “If a commander makes a complaint about an unruly passenger onboard, security gets cracking and is already waiting when the plane lands there.

And the surprising thing is that an abusive passenger, who is all fire and brimstone with us on the flight, suddenly becomes a mouse on seeing security men abroad with paraphernalia such as guns, walkie-talkies, baton, etc. We have no qualms in handing him over to them.”

PLIGHT OF THE CREW Prabha Rani, a retired air hostess says: “The unruliness is usually onboard international flights where drinks are served, especially on those coming to India from the Middle East.

It’s natural, I guess, considering that those countries don’t allow liquor. While we are all taught to tackle such passengers, real-life situations call for a lot of tact. If we reply back, some louts shout and say: ‘We have paid for the service.’ It is humiliating. While senior cabin crew can handle these situations, it unnerves the younger ones. It’s high time action is taken against these passen-

Soaring crimes in the sky Number

of unruly incidents per 1,000 sectors increased from 0.736 in 2010 to 0.834 in 2011, a 14 percent increase In 2011, 6,004 incidents of unruly behavior were reported In 2012, the number went down to 5,220 In 2013, it went up to 8,217 From 2007 to mid-2013, there was one unruly passenger incident per 1,708 flights. Of these, 20.9 percent were serious enough to require intervention of the police In 2012, every seventh unruly passenger incident required police or security service intervention

gers and I am glad IATA is doing something about it.”

Capt Shakti Lumba, aviation consultant and ex-operations head of IndiGo, says that on domestic flights in India, the commander and crew are not empowered to restrain disruptive passengers, as there is no specific national legislation in this regard. “In the past, cases of unruly passengers in domestic airlines were handled by airlines under the Indian Penal Code and the Aircraft Act. Both legislations were inadequate to successfully prosecute unruly passengers unless an attempted hijacking case could be made.

There was a case in IndiGo, where a passenger posing as a Directorate General of Civil Aviation (DGCA) official was successfully prosecuted for attempted hijack. There is a crying need for such legislation, as incidents of air rage are increasing, especially during flight delays.”

Unfortunately, though the DGCA is the apex regulatory body for civil aviation, it is powerless to prosecute. “Even if it came out with a circular, it would be dependent on the police for that,” explains Lumba.

The IATA move, he says, is a step in the right direction. Future legislation to tackle crimes onboard an aircraft should be exemplary. “Better late than never,” he adds emphatically. IL April 30, 2014

67

TECH/ cyber attacks

DEVIL on your Screen India is most prone to hackers’ attacks, but there is official paralysis in dealing with issues, such as servers based abroad and lack of indigenous internet technology

By Rakesh Bhatnagar

A

FTER he was sworn in as a Rajya Sabha member in June 2012, cricketer Sachin Tendulkar abstained from all crucial proceedings of the Upper House during the last session of the 15th parliament. However, the master blaster’s biggest contribution came as a member of the standing committee on information technology, which recently submitted a report on cyber crime, cyber security and right to privacy. The revelations are scary.

The committee found a 280 percent increase in “BOT” infections in India. BOT is a malicious software, which controls any computer or laptop it infects from an external source. The program can send emails to the person’s contacts, attack websites and steal information. Almost 4,000 websites in the country were defaced or hacked up to June 2013; out of these 2,667 were owned by government institutions and had “.in”

All efforts should be made to ensure that servers, which host sensitive websites, are based in India and owned by Indians.

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domain names with servers in India.

The fact is that the number of reported incidents of website compromises has grown 5.5 times in the past five years, and India “is among the first five countries with respect to spam mail”. During 2007-12, phishing incidents rose from 392 to 887.

This is true globally, too. Each day, 100,000 worms, viruses or variants are released on the cyberspace; of these, 10 percent are new and unique ones. US-based Symantec’s Internet Security Threat Report (2013) found a “42 percent surge in global targeted attacks during 2012 as compared to 2011, and 30 percent increase in web-based attacks.” India, with 134 internet service providers, 10 million registered domain names with 10 percent as “.in” ones and 260 data centers, is particularly at risk from professional and amateur hackers. In fact, the secretary of Department of Information Technology admitted to the standing committee that “the nature and size of the threat in cyberspace in India is looming large and it is very important to protect 11 critical sectors, such as power, atomic energy, space, aviation, transportation, etc., which are predominantly using IT systems.”

A key problem is that most of the Indian websites are hosted by internet servers based abroad. Why is it so? This is possibly because

The country must protect its 11 critical sectors from cyberspace threat. During 2007-2012, phishing incidents went up from 392 to 887.

Anthony Lawrence

of the “penny-wise, pound-foolish” mindset among the government and website owners.

The committee found that the hosting issue was “largely on account of economical and cost advantage reasons because the protection mechanism for securing websites involves significant expenditure.”

But logically, for sensitive areas costs shouldn’t be a factor at all. All efforts should be made to ensure that servers, which host such websites or are used for official purposes, be based in India and owned by Indians.

The cost proposition sounds bizarre when one considers that India is the land of techies and rules the global software sector. The country boasts of 100 million internet users and almost 13 million broadband subscribers. Why can’t our engineers, based here or located in US’ Silicon Valley, find low-cost solutions to the server problem?

Given this scenario, the committee had reasons to feel “extremely disturbed” as it found out that even though crimes in cyberspace have been on the rise, only 42,000 students have been trained or are undergoing training in various long-term or short-term courses to develop indigenous technology, which is imported “at a heavy cost”.

Only 65,000 personnel are involved in cyber security, against the estimated requirement of 500,000.

India is also totally dependent on foreign know-how vis-à-vis internet technology tools. However, the government hasn’t put in place an indigenous eco-system to check attacks on the telecom infrastructure, particularly the routers.

Minister of State for Communications and IT Milind Deora’s response was that the government had made it mandatory for telecom service providers to get their systems verified by certified laboratories. This stemmed from the perception that frequent interruptions or derailment of IT systems are propelled by foreign nations. But the government is not geared to make its laboratories free of suspected intrusive mouse traps.

No wonder, the government is smug about cyber security and cyber threats. When it was revealed that US’ National Security Agency spied on 38 diplomatic missions of foreign nations, including two Indian missions in Washington and New York, External Affairs Minister Salman Khurshid seemed unperturbed. His assurance was that various agencies “carry out security audits of IT and communications systems in the missions on a regular basis,” and the government will “enhance its capacity to protect data and information flows by building better cyber and telephony infrastructure and evolving new cyber and telecom security practices.” IL April 30, 2014

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HUMAN RIGHTS/ kashmiri prisoners

Trail of

TORTURE undertrials and convicts from the valley in delhi’s tihar jail are singled out for punishment and humiliation by the jail staff and other inmates, who perceive them as terrorists

By Sheikh Saaliq

E

HSAN Antoo, a Kashmiri, still remembers with horror the day he was brought to Tihar Jail after being charged under the Official Secrets Act in 2004. “After I entered the jail, I was forced to remove my clothes. The jail authorities said they wanted to see an identification mark on my body. Instead, they made me turn around. What happened next was something that still makes me tremble,” Antoo recalls. Further indignity was in store for him and other Kashmiri prisoners as jail authorities used fingers and bamboo sticks to further April 30, 2014

71

HUMAN RIGHTS/ kashmiri prisoners

traumatize them. When Antoo retaliated, he was beaten up. “I had other identification marks on my body, but I was made to strip and brutalized only because they wanted to humiliate me,” says Antoo.

While this is an extreme form of torture, Kashmiri prisoners released after serving jail terms in Tihar allege that they were singled out for severe punishment and humiliation, not just by the jail staff, but by other prisoners too, who perceived them as terrorists. Many were beaten up so brutally that they had to get their heads stitched. According to a Hindustan Times report, 18 cases of blade attacks were reported inside Tihar in 2013. Most of them went unnoticed and unreported. Even the families of these prisoners were unaware of the incidents. Most of those, who are charged with terrorist activities, have been in Tihar for the last 20 years.

As they sit in dark cells, counting the days, months and years to freedom, killing time is the least of their problems. What’s more difficult to bear is extreme hostility. Sudden, vicious attacks by other prisoners have scared them out of their wits. Gangs in Tihar, be it in the male or female wards, have made life hell for these Kashmiri prisoners. Danger lurks everywhere.

PAIN AND TORTURE So bad has the situation become that many of them went on a hunger strike last month, protesting against an order by the director general (prisons), restricting the rights of high risk ward (HRW) prisoners. In a petition to the Delhi High Court, they alleged that “malpractices and inhuman treatment” were meted out to them by jail authorities. In early February, a team of lawyers from the Jammu and Kashmir Bar Association visited Tihar on the orders of the high court. A report was later released, which highlighted the problems faced by Kashmiri prisoners.

Antoo clearly remembers the day he was attacked in a police van as he was being taken

Human rights activists say the attacks on Kashmiri prisoners by inmates happen in connivance with jail authorities. Otherwise how can a prisoner get access to weapons?

72

April 30, 2014

for a court hearing. “The van stopped and we had to step out. That’s when a fellow prisoner hit me on the face with his elbow and attacked me with a razor. I was lucky the blade missed me by a whisker,” he says.

Khurram Parvez heads the Jammu and Kashmir Coalition of Civil Society, and has been following the cases of Kashmiri prisoners for a long time. He says the ill-treatment of Kashmiri prisoners inside Tihar Jail is an ongoing issue, which needs to be addressed urgently. He feels attacks on them are happening due to the myopic thinking of other prisoners, who consider Kashmiris as terrorists.

“There is no way prisoners can be attacked so systematically without the help of jail authorities. The attacks are mostly carried out with weapons. In a high security jail like Tihar, it is impossible to bring such weapons in. This clearly indicates that jail authorities are helping the attackers,” Parvez says.

IN THE FEMALE WARD Shockingly, even female Kashmiri prisoners are not spared. Zamrooda Habib was a Kashmiri prisoner in Tihar and kept a diary, which was published into a book titled Prisoner No 100: An Account of My Nights and Days in an Indian Prison after she was released.

The book is full of incidents, anecdotes and experiences about the dark world inside the jail.

One line from the book quotes Delhi police telling her during interrogation, “You are a sep-

Shahid Tantray

aratist leader of Muslim Khawateen Markaz (MKM). We would just strip you naked, take your snaps and distribute them all over India, thus defaming you forever.”

Habib, who now heads the Association of Families of Kashmiri Prisoners, says she was charged under anti-terror law POTA and lodged in Jail No 6, meant only for women.

But that hardly mattered, as what happened to male prisoners “also happened to me”, recalls Habib. She was the only Kashmiri woman lodged in Tihar, and had to face the brunt of “blade gangs” in her ward too. Most of them attack prisoners who have been charged with anti-national activities. “When a group of prisoners came to know that I was a Kashmiri, they caught me by my hair and dragged me all around the ward. They beat me ruthlessly and called me a terrorist,” she says.

Habib remembers one Afghan woman, who was charged with drug-smuggling. She was beaten up so mercilessly that she died. The cause of her death, she says, was extreme lower abdominal bleeding. “She was repeatedly kicked on her abdomen,” says Habib.

TERRORIST TAG Syed Maqbool Shah, an accused in the Lajpat Nagar blasts of 1996, who was acquitted after 13 years in Tihar, says that dangerous gangs inside the jail pose a constant threat to prisoners’ lives.

Kashmiri prisoners, he alleges, are deliberately kept with thieves, murderers and mafia, evok-

ing a sense of fear among them. “I was lodged in a ward with druggists, murderers and other dangerous criminals. They would carry blades and attack other prisoners. I was often called a terrorist by other inmates,” Maqbool says.

Gautam Navlakha, a prominent human rights defender and a lawyer, says these attacks are the “worst kind of punishment”.

Take the case of Rafiq Ahmad Shah, who was attacked so severely inside Tihar that he had to be referred to a hospital for treatment.

His father, Muhammad Yaseen Shah, learnt about it through social media on March 24 this year. Rafiq was arrested on October 29, 2005, in connection with a series of blasts that rocked Sarojini Nagar market, Paharganj and Kalkaji in Delhi, killing 50 and injuring 104. The next month, Rafiq was arrested from his home in Alasteng in Srinagar and since then, Tihar’s HRW No 5 has been his home.

The torture is particularly hard on families.

Rafiq’s mother Mehmooda says with concern: “Our kids are being attacked in jails and we don’t even know. Whenever we go to visit them, they prefer to remain silent. Even if they want to tell us about these attacks, they aren’t allowed to do so. We are forced not to speak in Kashmiri so that jail authorities can follow our conversation,” she says.

SENSE OF LOSS Family members of Rafiq Ahmad Shah with their loved one’s photograph at their residence in Srinagar

FUTILE ATTEMPT Javid Ahmad Khanwas, arrested in 1996 in connection with the Lajpat Nagar blasts, is lodged in HRW No 6. A few weeks back, his cousin Farooq Ahmad came all the way from Nawapora in Kashmir to meet him, but he was not allowed. Disappointed, he returned home.

Javid’s father Mohammad Shafi Khan says: “My son is not treated well. Like all other prisoners, Javid is also bearing the brunt of being a Kashmiri.”

However, Tihar jail spokesperson Sunil Gupta denies all allegations. He says jail authorities treat all prisoners equally, and minor incidents are controlled. But the kith and kin of these Kashmiri prisoners live in constant dread and concern. “Tihar Jail is no different from a torture cell. Our kids are under constant threat of getting killed there,” laments Mehmooda.

How can these prisoners expect ingratiation, given such a trail of torture? IL April 30, 2014

73

GLOBAL TRENDS/ alternative food distribution

DARING TO DIFFER Michael Schmidt answering media queries during his protracted legal battle for the right to distribute raw milk

WHOSE MILK IS IT, ANYWAY? farmers in north america are fighting big food firms for their right to sell directly to the consumer. one of them, michael schmidt, may finally win his case after 20 years. this is a sign of global conflict that india will soon witness

By David E Gumpert 74

April 30, 2014

I

t seemed an isolated incident back in February 1994, on a cold isolated piece of land about 150 miles north of Toronto, when local public health authorities descended on a small dairy farm run by a German-born farmer, Michael Schmidt. They seized about $800 of milk and cheese, and charged Schmidt with supplying unpasteurized milk to a group of several dozen friends and neighbors who owned shares in his 30 or so dairy cows, known as a cow share.

Schmidt would, within months of the raid, be put on trial and his milk determined to be a health hazard. Ontario had, years before, made unpasteurized milk illegal, and evolved a cumbersome and expensive process for obtaining a license to produce milk for pasteurization. Little did Schmidt know that his legal difficulties were just beginning, and would continue for 20 years, through two Ontario appeal courts, culminating in a decision by a three-court panel in early March, 2014.

All Schmidt knew back in the 1990s was that he felt the need to follow through on his commitment to supply unpasteurized, or raw, milk to his cow share members. When he did, though, there were more raids and undercover investigations to try to suggest Schmidt wasn’t just selling his dairy products to a select group of friends, but to the public as well.

Eventually, the legal pressures would force Schmidt to divest himself of three-fourths of the small farm’s land and many of its cows to pay for legal bills. The pressures led to a divorce, and more civil and criminal charges.

But as the son of Germans who had survived the Hitler years, Schmidt saw in the official crackdown on his small private arrangement an unacceptable government intrusion against a fundamental and universal right—the right of farmers to follow the timeless tradition of privately distributing food to friends and neighbors outside the highly regulated food distribution system that is centered on supermarkets and box stores.

In Schmidt’s view it was a right that has become ever more important now, as massproduced “factory” food has come to dominate American and Canadian markets, and poses an altogether new sets of health risks (like of expo-

sure to the residues of antibiotics fed to farm animals en masse).

By the new century, Schmidt had re-built his farm and re-married, and saw the private group of devotees buying from his farm grow to more than 200. Schmidt also committed himself to nonviolent resistance against the intensifying campaign against raw milk, which has come to be known as food rights.

MIXED JUDICIAL RESPONSES By the time Schmidt went on trial yet again in 2008 for illegally selling raw milk, the same legal campaign that had unfolded against him was unfolding against dairy farmers around North America, most of them in the US. Nearly 90 percent of all US dairies had disappeared since 1970, according to the US Department of Agriculture, and the smaller ones that were left were increasingly trying to capitalize on the growing popularity of unprocessed foods, including raw milk, and selling unpasteurized milk privately as a way to bring in desperately needed revenues to keep their farms afloat. The legal results would be mixed.

In early 2006, federal, state, and local regulatory agents confronted a Kentucky farmer delivering unpasteurized milk to members

THE COST OF A CAUSE Schmidt with his second wife Elisa; the hardship due to clampdown on his farm caused a turmoil in his married life, leading to divorce with his first wife

April 30, 2014

75

GLOBAL TRENDS/ alternative food distribution

DIRECT TO HOME (L-R) The milch cattle on Schmidt’s farm; and the dairy farmer with bottles of unpasteurized milk meant for neighbors

of his cow share in a parking lot in nearby Cincinnati, Ohio. They confiscated his milk and questioned him so harshly he collapsed and had to be hospitalized with symptoms of post-traumatic stress disorder (PTSD). Eventually he settled the case by paying a fine of $500.

Later the same year, Ohio agriculture officials attempted to legally prevent another farmer, Carol Schmitmeyer, from distributing unpasteurized milk to a group of 150 cow share members. She challenged the state in court, and won a decision from a judge, who castigated the Ohio Department of Agriculture over “the failure of the department to articulate specific problems with the cow share agreement”. Ohio, which had banned sale of raw milk in the state, declined to appeal the decision, and so cow

The cases are about whether farmers can sell unpasteurized milk to friends and neighbors outside the regulated food distribution system.

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April 30, 2014

shares are now legal in the state.

Also in 2006, regulators and police in Michigan confronted a farmer, Richard Hebron, on his way to deliver raw milk to a group of cow share members in the university town of Ann Arbor. They confiscated thousands of dollars worth of milk and other foods, and referred the case to a district attorney for possible criminal charges, since Michigan, didn’t allow the sale of raw milk. When the district attorney decided against pursuing the case, the Michigan attorney general agreed to allow cow shares in the state.

However, other states weren’t as forthcoming as Ohio and Michigan. Maryland in 2006 banned cow shares (and a related arrangement, known as herd shares), and the ban withstood a legal challenge by a farmer, all the way to the Maryland Supreme Court.

In both Massachusetts and California, regulators filed cease-and-desist orders against farmers with cow share and herd share arrangements, but no court cases have yet resulted, and farmers continue to operate “under the radar”

Schmidt lost his case in the Ontario court of appeal. But the court left a window of opportunity, which he can use in case of further charges.

(though legislation has been introduced in both the states to legalize the private arrangements).

Michael Schmidt wound up representing himself at a five-day trial in 2009, at which he was charged with a number of violations of Ontario’s dairy laws. In early 2010, the judge in the case decided in favor of Schmidt, ruling that private food organizations are entitled to operate apart from the publicly regulated food system. But because Canada doesn’t prohibit double jeopardy (being tried twice for the same offense) as completely as the US, the Ontario government appealed against Schmidt’s acquittal, and won a reversal in late 2011.

UNDETERRED Schmidt then went on a 37-day hunger strike that attracted wide attention in Canada and the US that ended only when the Ontario premier agreed to Schmidt’s demand for a personal meeting. He also gained a hearing on his case from the Ontario Court of Appeal, which in early March became the highest court in North America to rule on a food rights case. It completely rejected Schmidt’s arguments. “This court has resisted schemes that purport to create ‘private’ enclaves immune to the reach of public health legislation...,” they said.

On the cow share arrangement, the justice who wrote the opinion stated: “In my view, the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large.”

The justice also suggested that Schmidt’s cow share wasn’t properly structured: “The

cow-share member acquires a right of access to the milk produced by (Schmidt’s) dairy farm, a right that is not derived from an ownership interest in any cow or cows.” The implication was clear: If the members had “an ownership interest” in the dairy, things would be different.

It turns out the members do have an ownership interest. They each invested $2,000 a few years back to acquire an actual ownership interest in Schmidt’s farm. The reason why this fact didn’t come up as part of Schmidt’s argument in the case at hand is that the case preceded the change in ownership—this case has been ongoing since 1994, when the province issued a cease-and-desist order to prohibit Schmidt from distributing milk. So, if further charges are brought against Schmidt, he will use the new ownership interest as part of his argument.

For his part, Schmidt remains philosophical, and determined. He notes that over the 20 years Ontario has been prosecuting him, “We have had five premiers in Ontario, ten minsters of agriculture, three popes, three presidents in the US, and 260,000 deaths from smoking in Ontario alone. Oh, and zero deaths from raw milk. I have not counted the days in court, the amount of court papers and the money spent on defending our right for food of our choice.”

He adds: “Raw milk still keeps flowing from Glencolton Farms, because the cows keep coming home in the morning and in the evening.

The amazing reality of life.” IL

David E Gumpert is author of Life, Liberty and the Pursuit of Food Rights. He was a reporter with The Wall Street Journal, editor at Inc and Harvard Business Review. David’s articles on food politics have appeared in Bloomberg BusinessWeek, Boston Globe Magazine, Food Safety News, Huffington Post, The Nation, Alternet, Modern Farmer and Grist. His previous book, The Raw Milk Revolution: Behind America’s Emerging Battle Over Food Rights, achieved wide acclaim.

April 30, 2014

77

CONSUMER WATCH

News capsules from the consumer world to keep you well-informed RIGHT SIGNAL

Illustrations: Aruna

Illustrations: Aruna

LIGHT AT THE END NAGPUR-based Avinash Prabhune has won a long-drawn consumer battle against the Maharashtra State Electricity Distribution Company Limited (MSEDCL). The National Consumer Disputes Redressal Commission (NCDRC) censured MSEDCL for disconnecting power supply without issuing notice under section 56 (1) of the Indian Electricity Act (IEA) 2003.

Prabhune, a consumer rights activist, got a shock on August 19, 2004, when MSEDCL disconnected his power supply without any notice, despite having paid the bill of `1,348.54 on August 2, one day before the last date.

The NCDRC bench comprising judges DK Jain (president) and Vinay Kumar (member) lashed out at MSEDCL for its the highhandedness. It agreed with the petitioner that had MSEDCL issued a notice under section 56 under IEA, Prabhune would have provided the proof as regards payment of bill, well before the respondents chose to disconnect the supply.

The NCDRC also directed MSEDCL to pay compensation of `7,000 to Prabhune.

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April 30, 2014

REFUSAL to own up for deficiency in services cost a mobile phone dealer dear, with a consumer forum directing it to pay `10,200 for selling a defective mobile handset worth `3,200.

Sai Mobiles & Electronics, operating in Sahibabad town of Ghaziabad district, Uttar Pradesh, had sold a cellphone to Naresh Kumar on October 25, 2012. But to the buyer’s dismay, the handset stopped working within a week. The seller had given a one-year warranty as a handwritten note on the retail invoice, rather than issuing a warranty card.

The seller refused to take any responsibility for the dysfunctional device. The complainant then sent a written complaint by registered post to Sai Mobiles. The seller neither replied to the notice, nor took any step to either rectify the defect or refund the amount.

As a last recourse, Kumar approached the central district consumer forum, which sent a notice to Sai Mobiles to appear before the forum, but the shop owner failed to do so despite several notices.

In its April 5, 2014 order, the forum held that the approach of Sai Mobiles amounted to deficiency in services. It ordered the dealer to refund `3,200 to Kumar, along with a compensation of `7,000.

Searching Google

DELHI TO DALLAS, THE KLM WAY IT was a dream honeymoon that went wrong. Sheena Kashyap and her husband Shaman Sharma had booked for their honeymoon from New Delhi to Amsterdam, en route to Detroit and Dallas. While Sharma’s tickets with KLM Royal Dutch Airlines were booked, Sheena took the help of a travel agent, Airborne Travels, to book tickets provisionally with the same airlines.

On finding the rates of another agent, Business Travels, cheaper by `3,000, she got the earlier booking cancelled. Business Travels telephonically informed Sheena that her booking was confirmed and delivered the ticket at her residence upon payment of ` 27,126 in cash. The ticket was a consolidated price for travel to all the three sectors—New Delhi to Amsterdam, Amsterdam to Detroit and Detroit to Dallas.

But after a few days when Sheena contacted the KLM Airlines office, she came to know that there was no booking in her name. When she contacted Business Travels, she was told that they had no intimation about the cancellation of her booking. When a harried Sheena reached the airport, the airlines advised her to buy a fresh ticket worth `59,391 for business class on the New Delhi-Amsterdam flight.

Sheena was forced to fly business class as well as sit separately from her husband, but upon returning from her trip, she filed a case in the district consumer forum in Delhi.

The airlines claimed that since the booking was made first by Airborne Travels and later by Business Travels, the computer automatically cancelled the first booking on account of the double booking system in place. But the district forum ruled in Sheena’s favor, asking the airlines to refund her ticket money as well as pay her `2 lakh as compensation.

The airlines approached the state consumer commission, which upheld the order, observing that the airlines had “connived” with agent Business Travels and cancelled Sheena’s booking, forcing her to pay a higher sum of `59,391.

Refuting the airlines’ defense, the commission pointed out that the booking done through Airborne Travels was not a confirmed one and therefore, there “is no logic in cancelling a confirmed booking in preference of an unconfirmed booking.” Surprisingly, the travel agent was let off.

INTERNET major Google has been penalized by the Competition Commission of India (CCI) for “non cooperation” in the pending investigation into its alleged unfair trade practices in India. The penalty is a hefty `1 crore.

The probe was in response to a complaint filed two years back by matrimony.com and Consumer Unity & Trust Society alleging that Google was abusing market power in the online search and advertising markets by favoring platforms it wants to support.

The petitioners alleged there is a tendency on the part of the search engine to put the platforms in a certain order, which may not be done in fair and non-discriminatory manner.

The fair trade watchdog CCI, under the administrative control of the Ministry of Corporate Affairs, had sought to know the software and the algorithmic search adopted by Google in its operations. It found fault with Google for failure to provide relevant information and documents.

April 30, 2014

79

IS THAT LEGAL?

Ignorance of law is no excuse. Here are answers to some frequently-asked legal queries regarding matters that affect us on day-to-day basis

A couple gets divorced, and after a legal battle the mother gets the custody of the children. But after a few years, the children, still minors, don’t want to stay with the mother but with the father. What happens in such cases?

A child’s preference is also taken into consideration. The court first determines whether the child is capable of making an informed choice, and if the child is, his/her opinion is sought.

A child of around nine or ten years is usually thought capable of making an informed choice. If there are two children or more and they want to live with different parents, the court will try not to separate the children, and will then decide which parent the children must live with. This will obviously be emotionally devastating for the child who wants to live with one parent and not the other, but it is a difficult choice the court often makes.

If it can be shown that staying with one parent is harming the child, custody can be given to the other parent.

Illustrations: Aruna

An office employee’s email account is hacked by his colleague, who then uses it to send objectionable mails to women in the office. The employee is unable to prove his innocence and loses his job. What legal recourse does he have to get his job back?

The employee should file a complaint with cyber cell of police under Section 43, 66 and 67 of IT ACT, 2000 & Section 509 of Indian Penal Code. Thereafter, police will investigate and trace the colleague who had hacked his email account from the details of the IP address and server address received from the emails of the women in office. A

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criminal case will be initiated against the colleague who would have hacked and misused his account.

Thereafter, the employee should try to reconcile the matter by approaching the company’s management and providing them a copy of the first information report (FIR) and explaining to them the whole episode. If the company still refuses to reinstate him, the employee can file a case against the employer.

In the past, such cases have been solved by the experts. One such case, reported in the media was the arrest of an HCL employee who wrote abusive mails from his colleague’s account to the management to spoil his career, but the cyber cell of CID traced the mails to the internet protocol address of the employee’s laptop.

A healthy youngster becomes partially blind after a brain surgery. He has 40 percent vision. Is he entitled to a government job under the handicap quota?

Yes, he is entitled to a government job under the handicap quota, if he can establish that he has visual impairment even after treatment or standard refractive correction, and uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device. He will also come under the category of persons with disability for suffering

A young woman, whose husband died of a heart attack, leaves her in-laws house in a huff, though there were no instances of any kind of harassment when the husband was alive. The in-laws are old and want her to return, but she wants the family property to be divided. Can she claim a share in her deceased husband’s property legally?

A woman is entitled to the share of her deceased husband in the joint family property after his death and can claim the same by filing a suit for partition of the property. Under the Hindu Succession Act, she is entitled to a share as an heir under Section 8 read with Schedule I. The Act defines ‘widow’ as a female who has been united in marriage recognised by law and survives the husband without remarriage…

In Muthammal (died) vs V Pavunambal case (2012), it was held that on the death of her husband, the widowed woman can claim a share in the joint family properties along with her father-in-law, mother-in-law and brother-in-law. She becomes one of the sharers along with other heirs and gets her right for a share in the joint family properties.

from not less than 40 percent of any disability as certified by a medical authority. According to The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, government has reserved in every establishment vacancies not less than three per cent for persons with disability, of which one per cent each is reserved for people suffering from blindness or low vision; hearing impairment; locomotor disability or cerebral palsy.

A doctor, who is working in a government hospital, joins a popular anti-corruption movement against the government. To his dismay, he is suspended for his participation.

Is he on sound legal grounds if he moves the court?

Yes, the doctor can approach the court of law for seeking appropriate compensation for being suspended in an arbitrary manner.

In the matter of Delhi Transport Corporation vs DTC Mazdoor Congress (1990), it was held that the management cannot have unrestricted and unqualified power of terminating the services of the employees. Although in the interest of efficiency of the public bodies, they should have the authority to terminate the employment of undesirable, inefficient, corrupt, indolent and disobedient employees, but this right must be exercised fairly.

There should be adequate reason for the use of such a power and arbitrariness should be avoided.

April 30, 2014

81

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

2. Gita is an expert judge of paintings but is not sure which of these spellings is correct.

A: connoisseur B: connoiseur C: conoiseur D: connoisure 3. WYSIWYG stands for ……………..

A: Whatever you say is whatever you gain B: Whatever you say is what you get C: What you see is what you get D: What you say is what you get 4. PETA is an …… for People for the Ethical Treatment of Animals.

A: eponym B: anagram C: antonym D: acronym 5. What does ‘captious’ mean?

A: important B: rich C: miserly D: fault-finding 6. Do you know the plural of ‘species’?

A: specii B: species C: specieses D: specae

Aruna

7. Ravi just wrote ‘143’ and Rekha understood what he was trying to say.

A: one for three

SCORES

8. A mythomaniac is one who has an abnormal tendency to ….. ….. .

A: study mythology B: tell lies C: explode myths D: disprove facts 9. When Americans say ‘bling-bling’, they mean ……. ………. .

A: sexual assault B: new dress C: alarm bell D: flashy jewelery 10. By IRL, IT professionals refer to …….. ………. …… .

A: in real life B: in reverse line C: in right length D: inside reflecting light 11. Orthography is the study of ……. .

A: bones B: spelling C: relics D: bird 12. Which of these expressions is right?

A: My wish is your command B: Your command is my wish C: My command is your wish D: Your wish is my command 13. In the SMS lingo, BRT will mean …... …... …… .

A: be right there B: bring royal tiffin C: bye, regret tomorrow D: before reaching there 14. Silver anniversary is completion of 25

years. But completion of 15 years is called …... anniversary.

A: steel B: crystal C: copper D: wood 15. When collegian Kumar yelled ‘vamoose!’, he wanted his friend to …… …… .

A: eat fast B: throw it C: run away D: be careful 16. The judge disposed … Asaram’s petition.

A: off B: of C: from D: out 17. ‘Hot dog!’ expresses …… .

A: hunger B: anger C: joy D: worry 18. A situation when something good seems to happen but doesn’t.

A. false dawn B. fair game C. night rainbow D. black dream 19. He is hot-tempered but his brother is as cool as …… .

A: cucumber B: stream C: moon D: ice 20. A behavior indicating reluctance to spend money is ….. .

A: couch potato B: cold sweat C: wool gathering D: cheese paring

ANSWERS

15.

16.

17.

18.

19.

20.

c. run away b. of c. joy a. false dawn a. cucumber d. cheese paring

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!

B: I for you C: I love you D: one for you

8. b. tell lies 9. d. flashy jewellery 10. a. in real life 11. b. spelling 12. d. Your wish is my command 13. a. be right there 14. b. crystal

WISE

1. Salman has made a …… …… would mean he has made a mistake.

A: hara kiri B: volte face C: faux pas D: modus operandi

1. c. faux pas 2. a. connoisseur 3. c. What you see is what you get 4. d. acronym 5. d. fault-finding 6. b. species 7. c. I love you

WORDLY

textdoctor2@gmail.com

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April 30, 2014