India legal 30 september 2014 single pages smallest

Kerala liquor law: Bottoms down

Lions and the law: Rip-roaring rumpus

NDIA EGAL I L Film courtrooms: Reel vakils

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September 30, 2014

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STORIES THAT COUNT

SECTION 498A

RNI No. UPENG/2007/25763

Postal Regd. No. UP/GBD-197/2014-16

WHO ARE THE VICTIMS?

The courts step in to control rampant misuse of the much-needed anti-dowry laws as weapons of vindictive persecution 22

ALSO CBI MESS: Director’s directories 11 SHANTI BHUSHAN: Facing the heat 15 SEX WORKERS: Green light ahead 48

PLUS z

Will J&K see a Hindu CM? 34

z

The politics of toilets 30

ISLAMIC STATE

HOW WILL THE US TAME ITS OWN MONSTER? 68

LETTER FROM THE EDITOR

INDERJIT BADHWAR

ESI AND THE BUDDY SYSTEM

F

ROM time to time, I will carry in this space commentaries and revelations concerning irregularities in matters of governance—whether perceived or real—that cause concern regarding the sanctity of legal and administrative procedures. India’s last general election was fought on the issue of probity, and Prime Minister Narendra Modi has made it his personal mission to ensure that, like Caesar’s Wife, his ministers and bureaucrats are cleaner than a hound’s tooth.

It is for this reason that matters such as the one brought recently to my attention bear scrutiny. It concerns repeated, questionable extensions of service granted to Dr Renuka Nigam as Deputy Medical Superintendant (DMS) of the Indira Gandhi Employees State Insurance (ESI) Hospital, in Delhi. This is a mammoth government undertaking handling medical treatment of those who qualify under the government’s liberal health insurance benefits. The funds involved in handling tenders and contracts are huge.

The DMS directly deals with these matters. It goes without saying that the post is a plum job, a coveted assignment—and Dr Nigam, 63, is now on her third extension in this assignment following a series of backto-back extensions given to her after she attained the prescribed retirement age of 60 years. Is this usual? Perhaps not, consider-

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September 30, 2014

ing that there are some seven eligible persons waiting for this post. And tongues are wagging that Dr Nigam enjoys this special privilege because her daughter happens to be married to the son of Shashi Kant Sharma, none other than the powerful Comptroller and Auditor General of India (CAG), who is the nation’s top constitutionally created watchdog for keeping a vigil on fraud, waste and mismanagement in the government. The post is ranked along with the judges of the Supreme Court in the Indian order of precedence.

T

his is indeed a bizarre story. Dr Nigam was actually given a fond, warm official farewell on August, 2014, after she completed her second extension. Curiously, on September 1, 2014, a new 30th firman (office order 427/2014) descended from way up high, signed by the director (MA) of the headquarters of ESI extending her services “wef 01.09.2014” for another year.

So where does the buck stop in this unusual grant of what seems to be an obvious act of patronage in violation of the merit system. Sources say that the director general of ESI Corporation had opposed the third extension based on the availability of eligible candidates and consequently, according to the babu lingo, “the file was returned” by the Minister, Labor and Employment.

Fairly, or unfairly, fingers are being pointed at “intervention” from the Prime Minister’s Office for brushing aside objection and pushing the unprecedented service extension. I am not for a moment suggesting that Modi personally intervened, or even has the slightest knowledge of it. But that’s the perception price he must pay because of his image as a vigilant taskmaster, running a tight ship under an omniscient, watchful eye on every minister and ministry.

A

nd the watchful eye, surely, must first examine whether an extension in service in the ESI Corporation is a simple matter. Point of fact, it is not. The babucracy has been careful to create an elaborate obstacle course. The Government of India prescribes filling a form with the proposal. Here are its elements: In the case of medical officers, a Departmental Promotion Committee (DPC) should be convened by the corporation to consider the cases of all eligible officers. In order to give an incumbent an extension, the committee’s findings must show that all the eligible officers in the “feeder cadre” are unfit. If the officers in the cadre are eligible for time-bound promotion, the proposal for extension should not result in denial of promotion to them.

In the case of vacancies in the “general” side, the UPSC plays a role. It must convene the DPC and find that all the eligible persons in the feeder cadre are unfit for promotion. The general rule is that the crucial date of eligibility for the vacancies, which occurs in a financial-year-based-vacancy-year, is the preceding January 1st. But, there is no bar to promote officers who become eligible on that day to be considered for promotion against vacancies that occur during the period from 01.01.2013 to 31.03.2013.

India’s Department of Personnel and Training clearly states that a “systematic review of the officers approaching the age of superannuation should be conducted well in advance so that whenever necessary, suitable persons are selected in time to replace

The circumstances of Dr Nigam’s extension raises questions about favoritism and bending the rules to suit a powerful official at the expense of qualified candidates. such officers and given training beforehand thereby minimizing the number of proposals available for extension” (Page 652, Swamy’s Manual 2012).

The concerned department, I believe, is defending the ESI extension on grounds of time requirements and immediate eligibility criteria etcetera. Personally, I do not believe that a good officer should be retired at age sixty. I am all for a hefty raise in the retirement age so that humans are not put out to pasture in their prime. Be that as it may, in the current scenario, an extension results in the denial of promotion to scores of officers and staff down the line.

T

here is a precedent that is noteworthy. When a proposal for extension of GR Nayar, former Insurance Commissioner, was forwarded in 1989—a time when that post was classified as one of the five posts of principal officers and the government was appointing officers through the Appointments Committee of the Cabinet (ACC)—the move was shot down and a person in the feeder cadre with only six months’ service was promoted by relaxing the period of residency by 4 1⁄2 years.

The provisions for relaxation in the recruitment regulations in the “general” side have always been used for promoting people in the lower cadre to stimulate vibrancy in the functioning of the organization and not for extension for seniors to cause stagnancy.

It is not for me to judge Dr Nigam’s competence or integrity. But the circumstances of her extension do raise questions about favoritism and bending the rules to favor a powerful official at the expense of qualified candidates. In the US, they call this the “buddy system”.

editor@indialegalonline.com INDIA LEGAL September 30, 2014

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SEPTEMBER 30, 2014

VOLUME. VII

ISSUE. 26 Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Senior Editor Vishwas Kumar Contributing Editor Girish Nikam Associate Editor Meha Mathur Deputy Editor Prabir Biswas Assistant Editor Somi Das Sub-editor R Parvathy Art Director Anthony Lawrence Senior Visualizer Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator Kh Manglembi Devi Production Pawan Kumar Verma

LEAD

Article 498A: A litany of misuses

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It was meant to provide succor to hapless women suffering abuses at the hands of in-laws; instead, the anti-dowry law has become a tool for educated urban women to harass men and their families. BHAVDEEP KANG and VISHWAS KUMAR present some harrowing cases to highlight the lacunae

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Director (Marketing) Raju Sarin GM (Sales & Marketing) Naveen Tandon-09717121002 DGM (Sales & Marketing) Feroz Akhtar-09650052100 Marketing Associate Ggarima Rai For advertising & subscription queries sales@indialegalonline.com

Published by Raju Sarin on behalf of E N Communications Pvt Ltd and printed at CIRRUS GRAPHICS Pvt Ltd., B-61, Sector-67, Noida. (UP)- 201 301 (India) All rights reserved. Reproduction or translation in any language in whole or in part without permission is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd .

Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd .

The Publisher assumes no responsibility for the return of unsolicited material or for material lost or damaged in transit. All correspondence should be addressed to E N Communications Pvt Ltd .

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September 30, 2014

CONTROVERSY

Comprised Bureau of Investigation

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CBI director Ranjit Sinha’s visitors’ diaries reveal his connections with influential corporates named in the Coalgate and 2G scams. A probe by VISHWAS KUMAR FOCUS

AAP leader’s real face

15

SC excoriates senior lawyer Shanti Bhushan for a dubious attempt to influence a case. A report by INDIA LEGAL TEAM MY SPACE

Where collegiums failed Veteran journalist and Rajya Sabha member HK DUA criticizes the collegium system for never laying down the criteria for appointment of judges

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Number 2 solution 30 POLITICS

Narendra Modi’s team has come up with an ingenious way to woo dalits and change electoral arithmetic in the north Indian states of UP and Bihar—provide them toilets, writes VISHWAS KUMAR

SOCIETY

Tipplers’ troubles

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Kerala chief minister’s decision to declare the state partially dry has been met with widespread opposition from several quarters. TK DEVASIA assesses the financial and social implications of the move

Mission Kashmir

34

The BJP has embarked upon an ambitious mission of securing the chief ministership in the state. Its manoeuvres vis-à-vis Pakistan and separatist leaders, and its promptness during the floods, might just win it the day, writes VISHWAS KUMAR

HUMAN INTEREST

The stamp of faith

64

ALSO Lawyers question a new consumer bill that does away with their need in deciding cases ...……..51 Irom Sharmila’s struggle against AFSPA and media’s ignorance of the issue...................….54

A temple near Almora sees devotees from across the country appeal to Golu Devta for favorable decisions in court cases—submitting their requests on stamp paper. A report by RAMESH MENON

The tussle between MP and Gujarat over Gir lions…...............…..56 America’s Frankenstein monster IS, and the trail of atrocities in Iraq….…68

Green light for red light areas

48

Can a hefty compensation sum give back a falsely accused person his wasted years?...........................76

SPECIAL STORY

Filmy adalats

60

Heated arguments, incredulous logic, dramatic monologues, last-minute evidence and most dramatic turn of events— JUI MUKHERJEE takes a look at Bollywood courtroom scenes which, howsoever unrealistic, bring a filmy script alive

REGULARS

DIVYA A probes whether legalizing prostitution will lower crimes against women, as well as provide a better future for sex workers

Letter from the Editor …............ .........................................................4 Letters…..............................................................................................8 Quote-Unquote ...............… ................................................................9 Ringside ..........................… ..............................................................10 Supreme Court..................................................................................17 Courts................................................................................................20 Briefs .................................................................................................77 Consumer Corner..............................................................................78 Is That Legal?....................................................................................80 Wordly-wise .......................................................................................81 People ...............................................................................................82

Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA

INDIA LEGAL September 30, 2014

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LETTERS Crying for attention Your editorial Maa Ganga will test Modi’s leadership (September 15, 2014) was evocative, informative and lyrical. Developmental concerns have tortured and maimed the river, so intrinsic to India, its culture and traditions. Although Narendra Modi made tall promises before assuming power that he would free the river from all the ills plaguing it, the progress report, as of now, is not promising at all. If Modi can do what the river needs, he will walk with glory in the comity of nations.

Sandhya Gulati, Delhi

Ills plaguing sports I am happy to note that your magazine regularly takes up issues that are of public interest.

However, it would be nice if India Legal published corruption in sports bodies and the government’s apathy towards the development of sports, except cricket.

The government is still sitting on the contingents’ names for the Asian Games at Incheon, South Korea, starting from September 19. As a result, India could not be part of the Delegates Registration Meeting, so crucial for registration of athletes to stay in the games village It just smacks of a casual approach.

Samaresh Das, Kolkata

Save the birds I enjoyed going through the photo essay on birds (On the Last Flap, September 15, 2014). It is really disheartening to see exotic and regular birds disappearing due to natural as well as man-made reasons. I was especially shocked to read that Indian pharmacies continue to sell Diclofenac, which has been long banned.

I remember when I was a kid, our house would be filled with the chirping of the adorable sparrows, but I haven’t spotted one in five years!

Their silence is a wake-up call for us.

S Ramaswamy, Delhi

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www.twitter.com/indialegalmag

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September 30, 2014

Packed with info I enjoy reading the Supreme Court, Courts, International Briefs, Is that Legal? Consumer Watch and the People pages. It is amazing how so much of information gets packed in.

They offer a good read when there’s paucity of time. Also, the choice of news is very interesting. Kudos to India Legal. I am already looking forward to reading the next issue!

Usha Raman, Chennai

Monitoring the West I enjoyed reading the story, Preacher’s Folly in the September 15, 2014, issue. We always admire the West above all, especially the US, but this story proves that the West is not squeaky clean either. They are equally, perhaps more guilty, in committing gross human right violations.

It will be good if India Legal covers international stories regularly to provide us a better insight on world affairs.

Vinod Lal, Mumbai

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

QUOTE-UNQUOTE

“The world will not wait for us. We have to run ahead of time. We should not say in 2014 that a project conceived in 1992 will take some more time.”

—Narendra Modi, asking DRDO to deliver projects on time. The Times of India

—Civil rights activist Irom Sharmila Chanu, on whether she longed to lead a normal life. The Times of India

“I knew that agreeing to write my story would need me to be completely honest, as that’s the way I have always played the game.”

“If you look at Modi’s reality, quite clearly he is anti-Muslim, anti-Pakistan…” there is no reason why we should be treating him like a viceroy…”

—Former Pakistan president Pervez Musharraf, on PM Narendra Modi’s Pakistan policy. ARY News

“Who would like to stay confined to a prison room for years?

Everyone wants to lead a happy life and so do I. But my crusade is of greater importance”

“There is no constitutional provision or even a statutory rule that the senior-most judge of the Supreme Court should be appointed as the Chief Justice of India.”

—Justice Markandey Katju, on appointment of CJIs, in his latest article

—Sachin Tendulkar, on the impending release of his autobiography Playing It My Way. The New Indian Express

“In our state if the same situation develops, we will think. Nobody is untouchable” —West Bengal Chief Minister Mamata Banerjee, on the possibility of the TMC tying up with the CPM. Chobbis Ghanta, a Bengali channel

“He made it clear in several ways that he wasn’t happy with the fact that I was drawing more applause.”

“Today, you can put me in a boxing ring. I may not be able to beat another boxer, but I’ll be able to give her a tough fight. I’ve learnt it that much.”

—Annapurna Devi, late Pandit Ravi Shankar’s former wife, on her popularity wrecking their marriage.

The Times of India

—Bollywood actress Priyanka Chopra, on her abilities as a boxer after playing the role of boxer Mary Kom in the biopic film. Deccan Herald

INDIA LEGAL September 30, 2014

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VERDICT Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. ―Judge Louis Brandeis

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September 30, 2014

CONTROVERSY/

CBI director/visitor logbook

COMPROMISED BUREAU OF INVESTIGATION? ranjit sinha is in a tight spot. influential corporate honchos meeting him are under the scanner for coalgate and 2g scams

By Vishwas Kumar

T

HERE is more to the controversial visitors’ logbook at Central Bureau of Investigation (CBI) Director Ranjit Sinha’s residence than meets the eye. In fact, some of the visitors are indirectly linked to the Niira Radia tapes which, four years back, exposed the nexus between corporate lobbyists, politicians, bureaucrats and journalists.

Preliminary analysis of Sinha’s list reveals the names of lobbyists and middlemen who escaped scrutiny in the Radia tapes, as their names didn’t figure in it. Among them are Tony Jesudasan and AN Sethuraman, Anil Ambani’s employees; Deepak Talwar of Talwar and Associates, who is close to former minister Praful Patel; Shiv Babu alias Shiv Kumar, who reportedly works for a top corporate which has interests in oil, gas, telecom and media; and Sunil Bajaj who works for Essar.

(See Box: Roll of Dishonor) UNDER SCRUTINY So, why were these lobbyists meeting Sinha? The answer is simple. The companies they work for are under CBI’s probe.

In some cases, these visitors are directly under the agency’s scanner. And they obviously need help. But the Supreme Court probe into Sinha’s logbook and constant monitoring of CBI’s handling of 2G and Coalgate scams have made matters worse for these powerful corporates. Besides the fear of getting convicted and jailed, these visitors also fear losing the vast sums of money they made through scams. The 2G and Coalgate scams alone led to a loss of `3.76 lakh crore to the exchequer.

Sinha, however, has defended his meetings with these lobbyists, saying no favors were granted to them. But facts tell a different story. Take the case of Anil Ambani’s employees.

Sinha’s logbook reveals that between May 2013 and August Anil Shakya

INDIA LEGAL September 30, 2014

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CONTROVERSY/

CBI director/visitor logbook

Honored guests?

Names in the logbook of CBI director Ranjit Sinha AN Sethuraman & Tony Jesudasan: Corporate lobbyists with Reliance ADAG. Their colleagues are involved in the 2G scam.

Ashok Agarwal: Indian Revenue Service officer probed by the CBI, when he served in the Enforcement Directorate, for allegedly implicating several big businessmen. After a long suspension, he is back in the job, facilitated by CBI’s change in stand.

Moin Qureshi: Meat exporter who is being probed by the IT Department for Hawala deals.

His links with former CBI Director Amar Pratap Singh came to light during this probe.

He is known to an influential corporate lobbyist.

Deepak Talwar: Corporate lobbyist named by CBI in one of its preliminary enquiries in the Niira Radia case.

Sunil Bajaj: Corporate lobbyist working for ESSAR group.

Ruia: Could be a member of the Ruia family that owns Essar group. Involved in 2G scam.

Anil Bhalla: A close associate of Abhey Oswal, a close relative of Navin Jindal. Several of Jindal’s companies are under CBI probe in the coal scam.

Shiv Babu: Corporate lobbyist connected to a top corporate with interests in oil, gas, telecom and media.

Nahata: Could be Mahendra

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September 30, 2014

Nahata, owner of HFCL. He sold HFCL Infotel to Mukesh Ambani.

Subodh Kant Sahay: Former cabinet minister in the UPA government. His brother’s company is a beneficiary of coal blocks.

Devender Darda: Son of Congress MP Rajendra Darda, who is charge-sheeted in one of the coal cases.

Rajendra Darda: Congress MP who was probed in the coal scam.

KD Singh: TMC MP and owner of Alchemist Group. The IT Department recently raided his companies and the Enforcement Directorate too is examining it.

Dr Ketan Desai: Former president of the Medical Council of India; was probed by CBI in corruption cases.

Vinay Saigal and Sandeep Saigal: Vinay runs an export firm and Sandeep is a customs clearing house agent.

Pravesh Jain: A promoter of Paras Dyes and Chemicals.

Shailendra Pratap Singh: Corporate lobbyist working for several companies.

Mithlesh Jha: A retired junior engineer, who is said to be a close relative of an influential bureaucrat working in the Ministry of Finance.

Rajshekhar Reddy: Could not be identified.

Shiv Pal: Identity not known.

Anil Shakya

2014, Jesudasan and Sethuraman visited Sinha’s residence 50 times in 15 months, ie, almost every week.

Juxtapose this with Sinha’s letter in April 2014 to 2G case’s Special Public Prosecutor UU Lalit (now a Supreme Court judge). It said there was an urgent need to “re-examine” the charges against six accused of Reliance ADAG (Anil Dhirubhai Ambani Group) due to “fresh evidences” in the case.

The letter came at the time when the case was in the final stage of trial, long after the chargesheet had been filed. This shows that there was a link between the visits to Sinha’s house and his letter.

STRANGE INTERPRETATION Moreover, Sinha wanted a change in CBI’s fundamental premise on which it had built a case against those accused in the 2G scam.

His letter argued that “Clause 8 of USAL (Unified Access Service License) guidelines should apply only to licenses’ companies and not to the applicants.” Clause 8 states that no single company or legal person, either directly or through its associates, shall have substantial equity (10 percent or more) holding in more than one licensee company in the same service area.

Since Reliance Telecom was already holding several telecom licenses, the CBI found that it had violated USAL’s Clause 8 by having substantial control (more than 10 percent) in Swan Telecom, one of the many

successful companies that had obtained a 2G license during the tenure of former Telecom Minister A Raja. In Reliance’s case, the applicant was DB Realty owner Shahid Balwa’s company, Swan Telecom. And as per Sinha’s argument, if Clause 8 didn’t apply to Swan, the entire case against Balwa and Reliance would collapse. However, Sinha’s interpretation of Clause 8 of USAL will not be limited only to Ambani’s company officials. It can be used by other accused companies, which have similarly flouted the clause. It could stall the entire trial at the final stage.

Lalit, who was appointed by the SC to assist the CBI in court, strongly objected to Sinha’s suggestions. In a letter to Sinha, he wrote that “the draft (letter) sent by the CBI is tantamount to weakening the case.” The SC has now taken the letters exchanged between Sinha and Lalit and is examining them in the wake of the fresh controversy which has erupted over the logbook.

CBI OVERRULED Similarly, in the Coalgate probe, Sinha wanted to close the case against 14 companies which were beneficiaries of 64 coal blocks allocated by the government. All these coal blocks, as per the Comptroller and Auditor General, were given by the government to companies at throwaway prices without following the auction process. Following protests from PIL petitioners in the case, the SC took an unprecedented step and referred these cases to the Central Vigilance Commission (CVC).

The CVC overruled CBI’s conclusions and said that all these cases need to be probed and a criminal case registered. The SC agreed with the CVC, casting further aspersions on Sinha’s leadership.

Meanwhile, one of the petitioners in the Coalgate case, Prashant Bhushan (he is also a petitioner in the 2G case), recently demanded that Sinha be removed from the Coalgate probe. He had also asked the SC to examine Sinha’s list of visitors and find out if there was any nexus between him and these 14 companies.

Meanwhile, Sinha has claimed that the logbook was unauthorized and riddled with

Anil Shakya

DUBIOUS NEXUS (Facing page) CBI director Ranjit Sinha, whose visitors’ logbook has kicked off the probe; (above) former cabinet minister Subodh Kant Sahay, whose brother is a beneficiary in coal allotments and whose name figures in the logbook; UU Lalit, special public prosecutor in the 2G scam, who objected to Sinha’s stand

inconsistencies. He also denied the frequency of meetings, but accepted that he had met the visitors at his official residence at 2 Janpath, New Delhi. The SC on September 9 asked Sinha’s lawyer, Vikas Singh, to file a detailed affidavit within 10 days on the allegations of influencing the probes being carried out on its directions in the 2G and Coalgate cases.

SILENT GOVERNMENT Sinha’s alleged hobnobbing with corporate entities that his organization was investigating has shocked many. It has also put the Modi government in a tight spot.

Sharad Yadav, president of the Janata INDIA LEGAL September 30, 2014

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CONTROVERSY/

CBI director/visitor logbook

Anil Shakya

The Supreme Court probe into Sinha’s logbook and constant monitoring of CBI’s handling of 2G and Coalgate scams have made matters worse for powerful corporates.

DIN OVER DEALS (Clockwise from top left) Prashant Bhushan wants a probe into Sinha’s dealings; JD (U) leader Sharad Yadav questions Modi’s silence on the issue; and Ketan Desai, former president, Medical Council of India, being probed in corruption cases, was one of Sinha’s visitors

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September 30, 2014

Dal United accused Sinha of running a “gang of corrupt officers”. He also questioned why the Modi government was “silent” though it had been elected on an anti-corruption plank? “Why has the government not suspended this man (Sinha)? No director has harmed the CBI as much as he has. Arrest him, suspend him but do something,” Yadav said, claiming he had in his possession, documents which would nail Sinha’s involvement in “corrupt practices”.

Yadav said a “naked dance of corruption” was happening right under the nose of the government. Earlier, Bhushan, too, had written a letter to Prime Minister Narendra Modi demanding action against Sinha.

The government, however, is moving cautiously in this case. Sinha had already come under fire for giving a clean chit to Modi’s close aide Amit Shah in the Ishrat Jehan case. Moreover, the government is handicapped due to an earlier judgment of the SC, which gave the CBI director a fixed term of two years. While this was done to protect the

director from any “extraneous influences” while carrying out sensitive probes against the government, he can be removed in exceptional circumstances. The government would, therefore, prefer to wait for the SC’s decision in this case.

However, there are reports that the government may ask the CBI director to proceed on leave till the matter is disposed off.

Another option is to ask him to voluntarily recuse himself from both the Coalgate and 2G scams. Sinha, incidentally, still has three months in office before he retires on December 3.

Ironically, it was the SC’s own decision in the Vineet Narain case in 2003 that has come back to haunt it. It freed the “caged parrot” (as the CBI was described by the judge) and gave it financial and administrative authority. Similarly, last year, Bhushan had objected to the government’s move to include Delhi Police Commissioner Neeraj Kumar in the list of probable candidates for the post of CBI director. He brought on frivolous charges and thus, facilitated the appointment of Ranjit Sinha. IL

FOCUS/ fraud case/shanti bhushan

RARE REPROACH the senior advocate was pulled up by an apex court bench for trying to force one of the judges to recuse himself from a case

By India Legal Team

I

N a surprising development, a champion against corruption was given a rap on the knuckles by a Supreme Court (SC) bench, for being motivated by the wealth of his client and forgetting his duties to the court. Senior advocate Shanti Bhushan was pulled up by Justices Arun Tandon and Arvind Kumar Mishra for trying to intimidate one of them to recuse himself from a case which Bhushan was representing. This is significant as Bhushan, along with his son Prashant, have been torchbearers in the fight against corruption. Besides, the former law minister is a patron of the Aam Aadmi Party.

EMBARRASSING INDICTMENT The bench’s scathing indictment said: “A senior seasoned advocate should not reflect uncertainty in his accomplishments by adopting a sharp practice like deliberately intimidating a judge to recuse himself through a theatrical performance encouraged only by the purse of his client as against his true obligations towards the court and society at large, where he keeps preaching all the time about the maladies of a corrupt mind. He should not appear hypocritical by pretending to go to heroic lengths in the devilish interests of his clients. He should not allow his rationality and objectivity to be overtaken with the aid of aggression and intolerance.”

The case involved the appointment of one Arun Kumar Mishra to the Uttar Pradesh State Industrial Development Corporation Ltd (UPSIDC). He was being represented by Bhushan, one among the other advocates before him. This Photos: Anil Shakya

INDIA LEGAL September 30, 2014

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FOCUS/ fraud case/shanti bhushan

The case involved the appointment of Arun Kumar Mishra to UPSIDC. He was represented by Bhushan, who even filed a personal affidavit for the recusal application.

DOUBLE-FACED? Shanti Bhushan (extreme right) at a meeting with Anna Hazare and Arvind Kejriwal in June 2011

appointment was challenged by one Anil Kumar Verma, who filed a case against UPSIDC and four others, including Arun Kumar Mishra.

On January 29, 2014, the high school marksheet and examination certificate of Mishra (Respondent 3) were produced before a division bench of the SC. But he was asked to produce the original cross list of the high school examination of 1976 with reference to the roll number. At the same time, Awadh University, from where Mishra graduated, was asked to produce the cross list of the B Tech examination for 1983. The hearing was posted for February 5, 2014.

But from the time the case started, Mishra and his advocates tried to get the case heard through some other bench as they felt the present one was not favorable to them. The sequence of events shows how persistent Mishra was.

DELAYING TACTICS On February 12, 2014, Mishra’s first advocate, Shishir Prakash, made an application before the chief justice that the petition be

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September 30, 2014

heard by some other bench. The application was rejected for being “thoroughly improper and lacking in substance”. On February 21, the matter again came up before the bench, but was filed by another counsel, Siddhartha Singh. But after he saw the contents of the earlier application and the order of the chief justice, he himself withdrew the petition. But a new set of counsels came to the fore, Kartik Seth and Anoop Trivedi. As records had not been produced by the university concerned, the vice-chancellor was asked to come to court. Realizing that his goose was cooked, Mishra apologized and said the February 21 application was an ill-advised one. This plea was placed before court after Shanti Bhushan was engaged as Mishra’s counsel.

However, on March 11, 2014, Bhushan filed an application stating that he wanted one of the judges of the bench, Arun Tandon, to recuse himself from the case. He went so far as to file a personal affidavit to support the recuse application. The bench rejected Bhushan’s request.

But what irked the court was Bhushan’s absence from court. It said: “He did not have the courage to press the application before the court and conveniently avoided attending court proceedings after sometime.” The court made it clear that it was not personally interested in the hearing of any particular case.

“The oath of the office commands us to do justice without fear or favor,” it said. “We hold this recusal application is motivated with a purpose to avoid this court...It is, hereby, rejected.”

The activism by courts in recent years was also evident when it clearly stated: “The court will not hesitate to do whatever is within its lawful powers to protect the independence of the judicial system of this country, failing which the entire legal system would be brought to its knees. We have no doubt that better sense shall prevail and counsels shall keep in mind that, for a democracy to work, independence of judiciary is utmost and any attempt to browbeat the court can never be in the larger interest of a democracy.”

This was indeed a nasty judicial cut on the so-called champions against corruption. IL

SUPREME COURT

No to Srinivasan

S

uspended BCCI president N Srinivasan is rather thick-skinned.

He asked the Supreme Court that he be given back his post, as the Mukul Mudgal Committee, probing spot fixing and betting controversy in IPL 2013, was taking too much time to wind up its report. But this did not cut ice with the Supreme Court.

Srinivasan pleaded that he needed to be in the chair for signing the accounts as BCCI elections were round

the corner.

Turning down his request, a two-judge bench felt that Srinivasan’s job at hand was not that critical for the court to reinstate him, and he needed to wait till absolved of all charges by the panel.

The bench, censuring the panel, asked it to complete the probe as quickly as possible. It extended its tenure by two months. Srinivasan was forced to step down as BCCI president in March.

Illustrations: Udayshankar

Onus on center

A

fter Narendra Modi’s insistence on fast-track courts to decide criminal cases against politicians, and the Supreme Court’s contention that such cases can’t be separated from others in the same category, the ball is back in the center’s court.

A five-judge bench, while dealing with a PIL seeking removal of chargesheeted ministers, has put the onus on the prime minister or chief ministers not to include tainted MPs or MLAs, against whom charges have been framed by a

trail court in a criminal or corruption case, as ministers. As a trustee of the constitution, the prime minister was expected to uphold its propriety, the bench said.

As of now, there is no constitutional provision that debars the entry of immoral politicians on the list of ministers. But the court refrained from adding a disqualification clause to Article 75, and left it to the wisdom of the prime minister or chief ministers to exercise their discretion on the matter for upholding morality and good governance.

INDIA LEGAL September 30, 2014

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SUPREME COURT

Now it is army’s turn

T

he full-blown controversy over the 2011 Jorhat dacoity incident that had almost halted Dalbir Singh Suhag’s (now army chief ) elevation as head of the army’s eastern command is back in the limelight. The Supreme Court, while taking up a petition from Renu Gogoi, roped in the Ministry of Defense, Assam government, army headquarters, Suhag and the CBI as “parties” to the whole affair. It also sought responses from the center and Assam government on the PIL’s demand for a CBI inquiry into the purported crime.

A case for correct behavior

T

he apex court was faced with a strange situation recently: breaking of decorum by advocates while putting forth their arguments on the National Judicial Appointments Commission Bill. They tried to attract the attention of the concerned bench by speaking out of turn and being too loud and provocative while expressing their points of view. Things came to such a pass that the three-judge bench stated that probably it was time the apex court started a course on basic etiquette in courts.

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The alleged robbery took place at Gogoi’s house in Jorhat, Assam, on December 21, 2011, under the so-called “intelligence operation” by the Army’s 3 Corps Intelligence and Surveillance Unit. The PIL pointed out that no action was taken after an FIR was filed by Renu’s husband after cash and valuables worth several lakhs were allegedly looted. It pleaded action against senior officers, Eastern Command, at that time, including General Suhag, who was then the head of GOC 3 Corps, for interfering in probe to shield the “guilty”.

For a fair trial

Dattu appointed next CJI

J

ustice HL Dattu will take over from Justice RM Lodha as the 42nd chief justice of India from September 28, 2014. He will remain in office for 14 months and retire on December 2, 2015. Justice Lodha will retire on September 27, 2014. Dattu joined the Supreme Court as a judge in December 2008.

No trivial PILs please

P

ublic Interest Litigations (PILs) are a remarkable tool for seeking justice from the judiciary on issues that affect the public at large.

But it has its pitfalls.

There have been many occasions when frivolous and irresponsible PILs have attracted the courts’ attention. Petitioners have gone to court for all other reasons than “public interest”. One such person, who is a regular petitioner and an advocate, was in a spot after he himself argued on his PIL, dressed as a

lawyer, seeking the apex court’s direction to the center to find out where Subhas Chandra Bose was.

A three-judge bench promptly dismissed the PIL and slapped a fine of `one lakh on him for wasting the court’s time on a “hopeless and frivolous” plea. It even gave a dressing down to the advocate for breaking rules by appearing in a lawyer’s uniform, when he was “petitioner in person”.

However, it reduced the amount to `50,000 after the petitioner admitted his guilt and pleaded for mercy.

THE army’s so-called strict and fair court martial process came under the scrutiny of the Supreme Court. It took a dim view of the fact that the army had let off senior army officers involved in illegal selling of weapons with just a reprimand or a paltry fine, while dismissing cadets for unruly behavior.

The apex court pointed out the systemic pitfalls while hearing a 2007 PIL that alleged that a weapons racket was managed by some army officers of the South Western Command in the border districts of Rajasthan.

Aghast at the casual way such a scam was handled, a two-judge bench berated the center and the army, and asked the government to explain within two weeks why such cases should not be looked afresh to hand out harsher punishment.

Fighting for victims WHILE the media claims it must go the whole hog in covering criminal incidents and related court proceedings under the right to freedom of speech and expression, the accused take objections that unbridled reporting damages their reputation and infringes upon their right to privacy. Lost in this din are the rights of victims.

The Supreme Court took up cudgels on behalf of victims who are often at various risks due to the unrestricted flow of information in the public domain. A two-judge bench asked the center, states and UTs to share their regulatory mechanisms, whether existing or proposed, within six weeks, so that it could figure out the grey areas and frame laws accordingly.

Another chance to life THOSE who disapprove of capital punishment will be gladdened by the Supreme Court considerably narrowing down the scope of death penalty.

A five-judge constitution bench, in a majority view, ruled that those sentenced to death can seek a review of the judgment from a three-judge bench (as opposed to two-judge bench earlier), and the proceedings will take place in an open court, unlike in the judges’ chamber before (without hearing out the petitioners’ lawyers).

The phenomenal judgment is premised on the need to ensure that the trial is just, fair and reasonable, and to rectify errors, if any, that may have influenced the initial judgment.

INDIA LEGAL September 30, 2014

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COURTS

Gagging the media

A

Death warrant for Nithari killer

T

he Ghaziabad sessions court had issued a death warrant against Surinder Koli, who was involved in the Nithari serial murders. However, he seems to have found a temporary reprieve as of now, since the date of death sentence, originally fixed for September 12, has now been deferred to October 29 by the Supreme Court. Koli’s mercy petition was earlier rejected by President Pranab Mukherjee on July 27.

Koli and his employer Moninder Singh Pandher was charged with serial killing of children in Nithari, near Delhi, but Pandher was acquitted by the Allahabad High Court.

Bangalore court’s temporary order banning some media outlets in Karnataka from reporting on the rape and cheating allegations made by a Kannada actress against Karthik Gowda, the son of Union Railway Minister Sadananda Gowda, was yet another case of the judiciary gagging the press.

The media has often underlined that the right to freedom and expression offers it the privilege to follow developments in controversial cases and for it to report objectively. But accused persons have often sought the help of the judiciary to throttle the media by invoking the Right to Privacy.

Several cases in the past have drawn the attention of the judiciary on this issue. In the Nira Radia case, Ratan Tata had approached the Supreme Court protesting that his private conversations with her were in public domain because the media violated his privacy rights.

Similarly, in the Justice Swatanter Kumar case, which related to sexual harassment, the Delhi High Court—on a plea filed by Kumar, a former Supreme Court judge—had restricted the media from reporting allegations against him.

In yet another case, the then SP

leader Amar Singh had filed a petition in the apex court after some of his telephone conversations were tapped and circulated. The court first restrained the media from publishing the contents of the recorded phone calls but later, lifted the ban.

The important aspect is that a person can’t be deemed guilty unless the courts decide, and therefore, the media should keep away from disclosing information, especially in high-profile cases, as it may “influence” the image of these people.

The judiciary should strike a balance between safeguarding the rights to privacy of an individual and shackling the media on information dissemination.

HC: Trafficked kids not offenders

T

he Delhi High Court recently ruled that minors rescued during anti-trafficking raids are victims and not offenders to be prosecuted under the Immoral Trafficking (IT) Act. The high court’s legal services committee had challenged a 2009

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September 30, 2014

order by a metropolitan magistrate over the custody of two minors, who were recovered by the police and dealt with under the IT Act. The high court ruled that if a child, who is incapable of giving consent, is found begging, working, sexually exploited or vulnerable to drug

abuse or trafficking, he or she will not be treated as an offender, but only as victim.

Moreover, if such a child is below 18 years of age and is rescued by the police under the IT Act, he or she will be immediately transferred to the Child Welfare Committee.

New post raises eyebrows

F

ormer Chief Justice of India, P Sathasivam was sworn in as the governor of Kerala early this month. His appointment triggered a controversy, especially since Justice Sathasivam had quashed chargesheets against Amit Shah in the Sohrabuddin encounter. With the government being the largest litigant in courts today and the subsequent appointment of numerous Supreme Court judges in high-profile positions after they retire, the independence of the judiciary has come under the scanner.

Those against the appointment feel that the lure of prime jobs from the government often pushes top judges to curry favor with the government of the day. So, they should be barred from taking up constitutional posts.

Now, it remains to be seen if the new governor will act in a fair manner.

More FCTs for speedy justice

T

he BJP government has drawn up a proposal to set up 1,800 fast track courts (FCTs) across the country to speed up the delivery of justice. The law ministry approached the 14th Finance Commission for the same, since the latter allocates resources for setting up court infrastructure. As of March 2014, 976 FCTs were operational in the country. Setting up of FCTs is the responsibility of the state government unless otherwise specified by the central government through a special scheme.

Cleansing the system

P

risons across India are chock-a-bloc with people who are yet to face trial in various offences. Often, they end up spending more time in jails than they would actually have, had they been convicted for their respective offenses. To make matters worse, they do not have the resources to furnish sureties or bail bonds, and being illiterate or underprivileged, have no clue about their rights.

Concerned about this lacuna in the judicial system, the apex court asked lower judicial officers to find out prisoners who have already served half the maximum period prescribed by law for an alleged offense and release them impromptu. Strangely, the same provision exists in the criminal procedure code (Section 436A), but was not implemented.

The court ordered that the exercise be started from October 1 and completed within two months.

Illustrations: Amitava Sen

INDIA LEGAL September 30, 2014

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The New VICTIMS the abuse of section 498a relating to dowry has seen many an innocent husband landing in jail. but with the supreme court forbidding automatic arrest, succor is in sight

By Bhavdeep Kang Illustrations: Lalit Khitoliya

A

woman is murdered for dowry every hour in India—a widely quoted statistic backed by a mind-googling number of news reports on women brutally killed by in-laws or husbands in just the last three months. In conjunction with the almost 1.2 lakh cases of domestic violence lodged at police stations by battered women in 2013, it would appear that wives do, indeed, have a hard time.

And yet, it seems the sandal is on the other foot—men too are being subjected to extortion, humiliation, emotional abuse and imprisonment by “disgruntled wives”.

So rampant is the abuse of Section 498A of the Indian Penal Code, relating to harassment for dowry, that the Supreme Court (SC) stepped in with a directive on July 2, forbidding automatic arrest in such cases. It also read the police a homily on misuse of this provision.

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September 30, 2014

“Section 498-A (has)...dubious place of pride amongst the provisions that are used as weapons rather than a shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a number of cases, bedridden grandfathers and grandmothers of the husbands and their sisters living abroad for decades are arrested.”

LEFT IN THE LURCH How does it work? Let’s look at a case from Mumbai. The wedding over, the newlyweds checked into to a hotel to “rest” before leaving for the honeymoon. But the bride had other plans. Three hours after leaving the shaadi ka mandap, she informed her husband that she hadn’t wanted to marry him in the first place and departed (with a substantial amount of jewellery), leaving the red-faced groom to face his family, friends and colleagues.

Worse was to come. After several weeks, he

applied for an annulment on grounds of desertion. Two days later, a contingent of Mumbai police appeared on his doorstep to arrest him on grounds of harassment for dowry and domestic violence.

The groom’s story would have struck a chord with V (name withheld), who married a pretty Kolkata girl in good faith, only to be told she was in love with someone else. Unlike the film Woh Saat Din, in which the reluctant bride falls for her unprepossessing husband and dumps her handsome lover, she left him for her boyfriend within a week. To add insult to injury, she charged him and his entire clan with harassment for dowry. Only a large financial settlement staved off arrest.

Lawyers have a fund of such stories: a Haryana boy who paid `45 lakh to his estranged wife to secure the release of his mother from jail; an MNC executive who spent a horrifying night in a police lock-up before he coughed up money; a divorcee who took a sec-

In quite a number of cases, bedridden grandfathers and grandmothers of the husband and even sisters living abroad for decades are arrested. ond plunge, only to find that his bride was schizophrenic and his in-laws were bullying him—on the threat of arrest for domestic violence—to sign over his properties to them.

In a bizarre twist to the standard pay-up-orI’ll-put-you-in-jail plot, a Bangalore-based Infosys executive murdered his wife in 2010, claiming she had threatened to file a dowry harassment case against him, which would render his aged parents vulnerable to arrest.

WELCOME ORDER It was, therefore, natural that widespread relief greeted the SC directive of July 2. The case that caused the court to give this order was a INDIA LEGAL September 30, 2014

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“If the gas cylinder is exhausted and delivery of the new one delayed, technically the man can be accused of abuse.”

-- Rajesh Vakharia, president, Save Indian Family Foundation

standard one: young Arnesh Kumar’s wife had accused his parents of demanding dowry in cash and kind and kicking her out when she did not comply. He’d applied for anticipatory bail, which was rejected both by the sessions and high court, and filed a special leave petition in the SC. The SC pointed out that almost two lakh people had been arrested in 2012 under the section, of which a quarter were women (mothers, sisters, etc, of the accused). Going by the statistics, it would appear that harassment for dowry is the third most common crime in the country. What’s more, the rate of chargesheeting in such cases is close to 94 per cent, while the conviction rate is only 15 per cent.

Extrapolating this, the SC said that of the 3,72,706 cases pending trial, 3,17,000 were likely to result in acquittal.

So, instead of knee-jerk arrests, the police are now required to secure a magistrate’s approval for detention on the basis of Section 41 of the CrPC, which governs arrest without a warrant. If this procedure is not followed, the police personnel concerned are themselves liable to be prosecuted.

In the 15 years preceding this SC verdict, a series of reports pointing to misuse of the Dowry Act had come out. In November 2000, the legal adviser to the Delhi Commissioner of Police suggested that Section 498A was being misused by women to harass their husbands.

The Malimath Committee on Criminal Justice System reforms in 2003 observed that the provision “helps neither the wife nor the husband.

The offense being non-bailable and non-compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions...operate against reconciliations”. The Law Commission in 2012 said the offenses under this provision should be made “compoundable” and arrest resorted to only in cases of serious magnitude.

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September 30, 2014

MUCH-ABUSED SECTION The courts, too, had made the same suggestion in a number of such cases. The high courts of Delhi, Tamil Nadu and Andhra Pradesh had all animadverted against knee-jerk arrests. The Delhi High Court in 2003 observed that 498A was a “much abused provision and exploited by the police and the victims to the level of absurdity...unless the allegations are of a serious nature and the highest magnitude, arrest should always be avoided”.

Mumbai High Court lawyer Abhishek Khare says the low conviction rate in 498A cases bears out his own experience—having handled over a hundred divorces—that “95 per cent are fabricated”. Some states, he says, are worse than others. The police go after the husband and family either out of fear of strictures from the court, pressure by NGOs or to make money off the accused.

Naturally, beleaguered husbands have banded together to protest. A host of websites offer advice to husbands charged under 498A or domestic violence: savefamily.in, saveindianfamily.org, menrightsindia.net, rakshakfoundation.org, indianfamily.net and 498a.org, to name a few. “A Guide to Surviving IPC 498 A” is an oft-downloaded document. Support

National Crime Records Bureau recorded 8,233 dowry deaths in 2012, 8,618 in 2011, 8,391 in 2010 and 8,383 in 2009.

CAUTIOUS STANCE Significantly, the July 2 SC judgement evoked cautious responses from gender activists and women lawyers. By and large, they took a nuanced stand, admitting that the law had been misused by a section of women—educated, aware and generally, middle-class. What they objected to was the judgment’s characterization of complainants as “disgruntled wives”.

Senior lawyers like Malvika Rajkotia, Pinky Anand and Rebecca John observed that there were ample instances of abuse, but warned against diluting the law, as harassment of women was an ugly reality. Besides, every law has the potential to be misused.

The flaw, then, lies in the implementation of the law. Supreme Court lawyer Santosh Kumar points out that the accused in such cases is not a habitual offender. “The husband is not a hardened criminal with a history-sheet, so the groups are full of advice on how to avoid arrest under this section: grooms are warned to be observant and keep an eye out for “symptoms” of impending litigation.

Khare says there’s really no way of avoiding arrest, except to “run away and then file for anticipatory bail”. Exactly what S (name withheld) did. He returned home from work to find his wife of four years on the landing, accusing him of domestic violence and dowry demands, within the hearing of his neighbors.

Embarrassed and perplexed, he slunk into his apartment and called a friend. “Pack a toothbrush and leave,” he was advised. Sure enough, his office called the next morning to say that the police were looking for him in a dowry harassment case. He then approached a senior police officer he knew, but was told it was all but impossible to avoid arrest. “But I didn’t do anything,” he protested. Pat came the response: “You got married, didn’t you?”

On the flip side is the continuing harassment, even murder, of women for dowry. These are samples from the month of August: a woman tied to a tree in Chhindwara and burnt by her in-laws; dowry death protestors block traffic in NOIDA; a former Delhi MLA and his family arrested in a dowry death case. The

Almost two lakh people were arrested in 2012 under the section. It would appear that harassment for dowry is the third most common crime in the country. police should not treat him as one.” The police can refrain from arresting the man and his family while investigating the case, he says, because there’s ample legal protection for the woman. She has the right of residence and is not being thrown out into the street and once she has filed a complaint, will have a secure environment in the home.

Often, Section 498A and the Domestic Violence (DV) Act come into play during acrimonious divorce proceedings. Canny lawyers make it a point to inform the police authorities, the state Human Rights Commission and the State Commission for Women before filing for divorce. In some cases, husbands have avoided arrest by pointing out that their divorce petition preceded the dowry harassment complaint.

A case in point is that of Deepinder INDIA LEGAL September 30, 2014

25

LEAD/ anti-dowry laws Hooda, son of Haryana chief minister BS Hooda, who was able to show that he had filed for divorce before his wife filed a complaint against him and his family.

The DV Act has also come in for criticism, not because of its intent but the wide definition of what constitutes violence. Verbal, emotional and economic abuse fall within the purview of the act and are described in such general terms that any domestic dispute or denial of expenditure—whether deliberate or inadvertent—and perceived shortfall in domestic goods, can amount to abuse.

Rajesh Vakharia, who runs the Save Indian Family Foundation, essentially a “rights of men” organization, says: “The SC itself has described the law as clumsily drafted...if the gas cylinder is exhausted and delivery of the new one delayed, technically the man can be

accused of abuse.” He says the law is discriminatory because it defines the home solely in relation to the wife. “What about the other women in the home—the mother-in-law, the sisters-in-law?”

In his vast experience of acrimonious divorces, he says: “I find that the police entertain complaints from wives, but not mothersin-law and unmarried girls. The moment a woman becomes a mother-in-law, she is transfigured from potential victim to potential demon.” The National Commission for Women, he complains, functions like the National Commission for Wives.

The SC judgement will surely bring respite to beleaguered husbands. “Courts have passed strictures before. But the police have failed to respond. Let us hope that this time, they follow the letter of the law,” says Vakharia.

CASE STUDIES while laws are meant to provide succor, their misuse can have a torturous effect on victims and their families

By Vishwas Kumar

M

ISUSE of dowry laws has seen many an innocent men being framed. Worse, in some cases, even the judiciary sides with the woman’s family, leaving her husband tortured and at wit’s end. Take the case of a newlywed couple whose lives were overturned due to the misuse of such laws by the girl’s family. All it took was a suggestion by the boy’s parents that the couple purchase a house jointly in their name. Could this be called dowry harassment? Prima-facie, it isn’t. But who was to tell this to the Maharashtra police, who not only arrested the boy, a software engineer, but also chargesheeted him.

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September 30, 2014

JUDICIARY FOUND WANTING But worse was to follow. Even the judiciary, from whom one expects justice, was no better. First, the metropolitan magistrate (MM) upheld the police’s case, brushing aside all protests from the accused and his parents.

Then, the additional sessions judge (ASJ) too agreed with the MM and directed him to undergo trial to prove his innocence. Finally, when the matter reached the high court, the shocked lady judge quashed the criminal case against the accused. She also passed strictures against the police and castigated the judicial officials for non-application of their mind while passing orders.

The judge severely criticized the girl’s parents for conspiring to defame and humiliate the accused and his family.

Sadly, there have been many cases of

LEAD/ anti-dowry laws / case studies abuse of dowry laws. In 2008, two software engineers, Neeraj Kaushik and Madhvika Joshi, fell in love and married. They lived in Pune where Kaushik was working with Tata Consultancy Services (TCS).

The marriage, however, lasted only five months, as the couple couldn’t reconcile their differences. On June 17, 2008, Joshi filed a complaint with Chaturshrunghi police station in Pune, alleging physical assault by her husband. The police requested her to undergo the mandatory medical examination in an assault case. But she refused. An examination would have helped establish the gravity of the injury and under which section of the Indian Penal Code (IPC) the crime fell. Since the alleged offense, a slap, was a non-cognizable offense (non-serious in nature), the police did not immediately register a case.

The next day, Joshi reached her home town in Ujjain, Madhya Pradesh, and lodged a complaint with the local police. Surprisingly, the police immediately registered a criminal case under the provision of Zero FIR (can be registered without jurisdiction), after she took a medical examination. The medical certificate indicated that there were bruises on her left eye, right arm, left scapular area and contusion over the left thigh.

Since the offense had taken place within the jurisdiction of the Pune police, the Ujjain police transferred the case there. And on July 4, Chaturshrunghi police station filed a fresh FIR (No 297/08) based on the Zero FIR forwarded by the Ujjain police, overlooking its own Occurrence Report, in which the police had refused to register a case.

WRONGFUL DETENTION The Pune police, then, swung into action and at midnight on September 23, arrested Kaushik. They also swooped down to Delhi to arrest his father, Vinod Kaushik, and mother, Uma, but failed to do so. Three days later, they brought a handcuffed Kaushik to the TCS office on the pretext of seizing his passport. After humiliating him, they detained him in police custody for another five days on the grounds of recovering “stridhan” (dowry) items, but they never came to Delhi to do so. After eight days in police custody, the trial court released Kaushik on bail on October 1, 2008. Two months later, his

parents also managed to obtain anticipatory bail from the high court.

But worse was to follow. In February 2009, the police filed a chargesheet under Sections 498A (anti-dowry), 406 (breach of trust), 506 (criminal intimidation), 323 (voluntarily causing hurt), 34 (common intention) of the IPC, along with Sections 3 and 4 of the Dowry Prohibition Act. Subsequently, Kaushik’s lawyer, Anuj Kumar Padhy, filed a discharge petition, first before the MM, then the ASJ and then, the Mumbai High Court, alleging that the Pune police had acted arbitrarily by ignoring their own Occurrence Report but later did so on a “cooked up” charge by the Ujjain police. He argued that the Pune police did not register a criminal case when an alleged crime took place within its jurisdiction. His petitions were rejected by the MM and ASJ, but later, the Mumbai High Court accepted it.

Thankfully for Kaushik, Justice Sadhana S Jadhav of the Mumbai High Court quashed the case against him this July. In her scathing judgment, she said: “In the present case, it appears that no serious allegations were made at Chaturshrunghi Police Station which would even warrant prosecution under Section 498A and therefore, in all probabilities, the police officers had not called upon the Petitioner No. 3 (Neeraj

BLISSFUL DAYS Neeraj Kaushik and Madhvika Joshi during their honeymoon in Mussoorie

INDIA LEGAL September 30, 2014

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Justice Sadhana Jadhav of the Mumbai High Court came to Neeraj’s rescue by seeing through Madhvika’s malafide intentions.

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Kaushik). At the same time, it cannot be ignored that Petitioner No. 3 was in fact, arrested by the police in his office and paraded as if he was a hardened criminal.

“The police machinery had not only stopped at that, but sought police custody on the ground of recovery of the passport of the complainant and other articles. The highhandedness and influence of the complainant party was writ large on the face of the record and the police had detained Petitioner No. 3 in custody without verification of the facts. It is a matter of record that Petitioner No. 3 had to undergo incarceration for a week because of the fact that he was arrested unaware. The Petitioner No. 3 was arrested on 26th September, 2008, and released on bail on 1/10/2008. The Petitioner No. 3 was exposed to social obloquy at the place of service since he was arrested in the office, i.e. in the TCS office, and was handcuffed.

“All this would clearly show that the complainant was seeking personal vendetta without there being any sufficient grounds.”

Justice Jadhav castigated Joshi’s family for misusing the provisions of anti-dowry laws in connivance with police officials to unleash vendetta against her estranged husband and in-laws.

MOTIVATED ACCUSATIONS Justice Jadhav also cast doubts about exactly what harassment Joshi had undergone. She cited Black’s Law Dictionary (widely used law dictionary), which defines “harassment” as “words, conduct, or action (usually repeated or persistent) that being directed at a specific person, annoys, alarms or causes substantial emotional distress in that person and serves no legitimate purpose.”

In the present case, she said, it could not be said that Petitioner No.3 was so persistent in his conduct that it could cause harassment to the first informant (Malavika Joshi). The very fact that she refused to be subjected to medical examination at Pune would show that she had no apparent injuries, the judge said. The police officer at Chaturshrunghi police station would have definitely noticed the bruises if it had appeared on her eyes and other features. Therefore, there was a doubt as to whether the said injury certificate was concocted at a place where her parents lived, said Jadhav.

She also clarified what could qualify as dowry harassment. Section 498A of the IPC contemplates harassment of such a nature, which would coerce the wife or her relatives to meet any unlawful demand for any property or valuable security or to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. “Recitals of the FIR in this case only disclose a stray incident which had occurred due to a verbal altercation between the husband and wife which would be a natural affair between couples.

Difference of opinion or verbal altercation...cannot be termed as harassment or cruelty,” said the judgment.

It also highlighted the grave misuse of dowry laws. In the present case, the disgruntled wife filed the proceedings under Section 498A, 406, 323 of the IPC. Thereafter, a petition was filed under the Protection of Women from Domestic Violence Act, 2005.

And then, proceedings were initiated in the family court. Hence, the husband and his relatives had to go through legal proceedings in the same case in three different courts.

Talk about a marriage made in hell. IL

INDIA L EGAL Medical Crimes: Can victims ever get justice?

S D L O H NO RRED BA

Baby-killer Sisters: In cold blood

36

Vanishing Birds: Can laws save them?

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www.indialegalonline.com

September 15, 2014

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POLITICS/ modi toilets

the bjp has embarked on an ingenious project—providing decent defecation facilities to dalits—to garner more sc votes. and it may just work

By Vishwas Kumar

DON’T DUMP THIS IDEA! 30

September 30, 2014

T

HERE is more than meets the eye as far as toilet politics is concerned. Prime Minister Narendra Modi’s ambitious Swach Bharat (SB) scheme to provide toilets for all rural households till 2019 is not only aimed at strengthening his connect with the rural population, especially dalits and women, but is being done with an eye on future elections. Though it has been officially claimed that the 2019 deadline for implementation of the scheme is meant to mark the 150th anniversary of Mahatma Gandhi’s birthday, its main aim is to reap electoral dividends in the general election scheduled that year.

The BJP seems to have taken a leaf out UPA-I’s success in the 2009 general elections, when the flagship rural employment scheme, Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA), was launched.

But what was the reason for a Hindutva icon and corporate

India’s favorite politician to suddenly start thinking of rural and dalit voters? The answer lies in the stupendous electoral victory forged by the BJP in the 2014 elections.

Modi, unlike any BJP leader, was able to cut through the caste-ridden politics of the Hindi heartland. Often seen as catering to urban, middle class voters, he was now able to woo even fringe segments like dalits and women.

It makes sense, considering the size of this electorate. Some 72 percent of India’s 1.22 billion population is rural. Out of these, Scheduled Castes or dalits constitute 16.6 percent (201.4 million), while dalit women number 34.8 million. For both these sections, the lack of toilets is an emotive issue and Modi is astute enough to understand that.

According to a report by the National Confederation of Dalit Organizations, nearly 48 percent of Indians have no access to toilets and are forced to defecate in the open. In rural areas, this percentage goes up to 60 percent. While 42.3 percent of non-dalit households have toilets, in the case of dalits, it is just 23.7 percent. That means that around 77 percent of dalits will directly benefit from the SB scheme between 2014-19.

Even the budgetary allocation for SB shows a tilt towards dalits. Out of the total `4,260 crore allocated for this scheme, `938 crore is for SCs and `426 crore for tribals.

Dalit activists, however, remain sceptical of the government’s intent because there is no effective strategy to improve their life.

MAKING HYGIENE THE BUZZWORD (Left) School children showing placards at the inauguration of 108 toilets in Badaun, as part of “Toilet for Every House” campaign of Sulabh International; (Below) Dr Bindeshwar Pathak, Founder of Sulabh International, inaugurating the toilets along with Punam Yadav, Badaun District Panchayat President

Photos: UNI

INDIA LEGAL September 30, 2014

31

POLITICS/ modi toilets

Clean Sweep?

PRESIDENT PRANAB MUKHERJEE’S address to parliament in June 2014

FINANCE MINISTER ARUN JAITLEY’S budget speech

“For ensuring hygiene, waste management and sanitation across the nation, a ‘Swach Bharat Mission’ will be launched.

This will be our tribute to Mahatma Gandhi on his 150th birth anniversary to be celebrated in the year 2019.”

“The need for sanitation is of utmost importance... The task of total sanitation cannot be achieved without the support of all. The government intends to cover every household with total sanitation by 2019, the 150th year of the birth anniversary of Mahatma Gandhi through Swach Bharat Abhiyan”

N Paul Divakar, general secretary, National Campaign on Dalit Human Rights, says: “It is great that the PM has initiated the Swach Bharat campaign and we welcome the decision. It is long overdue. However, the structural, systemic and systematic exclusionary practices that exist in the country also need to be addressed…. this appears as a material solution that does not take into account the practices of untouchability.”

He adds that merely building toilets is not enough. They have to be maintained and cleaned, and inevitably, dalits would be employed to do so, perpetuating caste-based discrimination and exclusion, he stresses.

CAPTIVE VOTE-BANK It was the 2014 elections that made the BJP look at dalits as a vote-bank. In the polls, it managed to garner 31 percent votes, result-

32

September 30, 2014

ing in 282 seats. In 2009, it only got 18.8 percent of the votes and 116 seats. So who were the new voters the party added? An analysis of election results shows that it attracted many dalit and women voters.

Analyzing the electoral gains, Rahul Verma of Lokniti-CSDS wrote in The Hindu that one in every four dalits voted for the BJP in comparison to one in 10 in the post-1990 era. “…the BJP has surpassed both the Congress and the BSP (Bahujan Samaj Party) in attracting a larger share of dalit votes. The BJP’s dalit vote-base in this election is largely the upwardly mobile sections (urban, educated, middle classes, with high media exposure),” he wrote.

And UP had a big hand to play in this, as it has the largest dalit population in India. In the 2014 elections, the BJP got 42.3 percent of the votes in UP and 71 seats out of 80.

Compare this with 17.5 percent and 10 seats in 2009. The additional 25 percent votes that the BJP added to its vote bank came from dalits (minus Jatav-Chamar, which remained with the BSP).

A similar trend is reflected in Bihar, another state where the BJP performed exceedingly well. Some 22 percent of voters in Bihar belong to economically backward castes and dalits. The BJP and its ally, the LJP, led by dalit leader Ram Vilas Paswan, managed to corner 51 percent of the votes, while their rival, JDU, led by Nitish Kumar, got only 35 percent. Nitish resigned as Bihar CM and anointed Jitin Ram Manjhi, a dalit, as his successor. This again shows the important role dalits will play in national politics.

Encouraged by the election results, the BJP’s think-tank, comprising of Modi, party chief Amit Shah and RSS chief Mohan Bhagwat, chalked out a strategy to actively woo dalits. Bhagwat’s recent utterance on unity among Hindus is being seen in this context. “For the next five years, we have to work with the aim of bringing equality among all Hindus in the country. All Hindus should be drinking water at one place, should be praying at one place and after their death, their bodies should be burnt at the same place,” he recently said in Mumbai.

A similar keenness to woo dalits was evident in BJP’s stand during the recent

Communal conundrum The aggressive BJP-RSS stance to woo dalits is causing social schisms, leading to communal tensions in rural areas. The December Muzaffarnagar riots were a case in point. It started as a local clash between dalits and Muslims over a petty issue. The party took up cudgels on behalf of dalits, while the SP-led UP government kept quiet, leading to escalation of communal tensions in the whole of western UP. The BJP’s electoral success triggered Muzaffarnagar-type riots elsewhere too. Within 10 weeks of the poll results on May 16, 605 communal incidents happened in UP, of which 68 involved Muslims and dalits. According to The Indian Express, over 70 percent of these took place around areas where assembly by-elections were to be held. Many of the flare-ups were over minor issues such as the use of loudspeakers in masjids and temples. And the BJP always took up the case of dalits, while the SP, BSP and Congress remained non-committal.

It is this appeasement of dalits that is the reason behind the BJP’s attempt to rake-up the “love-jehad” issue. This is with

Muzaffarnagar riots and other instances of communal tension in Uttar Pradesh in the recent months, especially after the BJP came to power (see box: Communal conundrum).

SOCIAL ENGINEERING Why has the BJP chosen western UP as the arena for its dalit appeasement policy? The answer lies in the area’s demographic composition and social structure. Dalits and Muslims equally own around 25 percent of the land here. “Unlike most parts of rural India, Muslims in western UP own land.

Many of them are Hindu converts, who haven’t forgotten their caste origins, even though Islam is supposed to be egalitarian….

Their attitude towards dalits matches that of their Hindu brethren: oppressive, exploitative and supercilious. This is precisely the obstacle the BSP faces in attempting a Muslim-dalit consolidation,” Ashraf wrote.

Meanwhile, the SP government is providing tactical support to the BJP’s campaign for its own electoral dividends. Since it sees the BSP as a bigger political enemy, it ensures that the administration either remains neutral or leans towards the minority community in these clashes. “Both the SP and the BJP

reference to Muslim boys enticing Hindu girls with the aim of marrying and converting them. In most cases, the girl is a dalit.

This happened in Gaineridan village in Pilibhit on May 20. Here, a Muslim family allegedly took away by force a girl married to a Jatav boy. Local BJP leaders intervened and demanded security for the Hindu family, causing tensions.

Political commentator Ajaz Ashraf wrote in scroll.in: “The BJP and its allies have supplemented the traditional method of Hindutva mobilization with new strategies. Months before Muzaffarnagar erupted last year, Hindutva activists had been harping on the alleged menace of ‘love-jehad’, a seemingly devious Muslim ploy to woo and marry Hindu girls after converting them to Islam.”

are hand-in-glove to cut out the BSP, which, in the past, has successfully forged dalitMuslim unity. If Muslims come to the SP and the majority of dalits goes to the BJP, the BSP will not able to get sufficient seats based on their own numerical strength of the JatavChamar caste,” explains a senior bureaucrat in the home ministry, who is responsible for monitoring UP’s law and order situation. “It is a well chalked-out strategy to attempt a new social engineering in a politically crucial state where either the BJP or the SP will remain in power,” he adds.

Dalit activists, however, emphasize that the government needs to do less politics and more of implementation of existing schemes to improve their lives. The 2014-15 budget allocated `50,548.16 crore for SCs and `32,386.84 crore for STs. “These plans were in existence for the last 30 years. However, these funds have been plagued by various issues, like non-implementation, diversion and notional allocations. All this needs to change. And for this, a push for effective implementation through investing in schemes for education, land and skill development is needed,” argues Divakar.

The toilet test for Modi has begun. IL

Numbing Numbers India’s population: 1.22

billion Scheduled Caste population:

201.4 million Population of dalit women:

34.8 million Percentage of rural Indians with no access to toilets: 60 Percentage of non-dalit households with toilets:

42.3 Percentage of dalits households with toilets:

23.7 Percentage of dalits who will directly benefit from the Swach Bharat scheme between 2014-19: 77 Total allocation for Swach Bharat scheme: `4,260

crore

Allocation for dalits and tribals under this scheme:

`938 crore & `426 crore respectively

INDIA LEGAL September 30, 2014

33

THE NATION/ J&K/ bjp strategy

34

MISSION

September 30, 2014

the saffron party’s ambition to win 44 seats in the forthcoming assembly polls may see the first hindu cm in the only muslim state in india

By Vishwas Kumar

T

HE Modi government has a very clear strategy on Kashmir. This relates to its handling of Pakistan, the Hurriyat and Jammu & Kashmir (J&K) itself. And those calling the shots are Prime Minister Narendra Modi and National Security Advisor (NSA) Ajit Doval.

While earlier, the Ministry of External Affairs (MEA) was the moving force behind foreign policy, it is an open secret that now it is Doval. It was his idea to call heads of SAARC nations for Modi’s swearing-in with a view to creating bonhomie among neighbors and establishing the government’s peacenik credentials.

CLEAR-CUT STRATEGY Doval is also credited with the new strategy on Pakistan, says a PMO insider. As a former spy-master, Doval depends on his decade-long experience in fighting Pakistan’s proxy war and classified information passed to him by security and intelligence agencies, to decide the government’s actions. It was on Doval’s advice that the government called off the scheduled foreign secretary-level talks with Pakistan, just three months after Pakistan Prime Minister Nawaz Sharif made an unprecedented gesture in attending Modi’s swearing-in. Though the official reason given for this cancellation was that Pakistan High Commissioner to India, Abdul Basit, had met Hurriyat leaders, according to a PMO insider, this was Doval’s doing.

“If the boycott (called by Hurriyat) continues, the people of Kashmir would be controlled from somewhere in Nagpur (RSS headquarters) or Jhandewalan (RSS headquarters in Delhi).”

HANDS-ON STRATEGY J&K Chief Minister Omar Abdullah welcomes Prime Minister Narendra Modi on his arrival at Jammu Airport in early July

Omar Abdullah, J&K chief minister

POSSIBLE UNI

INDIA LEGAL September 30, 2014

35

THE NATION/ J&K/ bjp strategy

Jammu & Kashmir assembly seats

46

SEATS

VALLEY

37

SEATS

JAMMU

4

SEATS

LADAKH

2008 J&K RESULTS BJP: 11 CPM: 1 Independents: 4 Congress: 17 JKDPN: 1 NC: 28 Panthers Party: 3 PDP: 21 PDF: 1

It was on Doval’s advice that the government called off the scheduled foreign secretary-level talks with Pakistan, just three months after Nawaz Sharif attended Modi’s swearing-in.

Some people even suggested that Modi took the decision at the behest of RSS hardliners, who are opposed to the government’s “soft approach” towards Pakistan.

The carefully thought-out strategy extends to Kashmir too. The latest move to corner Kashmir’s separatist leaders is keeping in mind the crucial assembly elections in J&K, scheduled for later this year. It is also keeping in mind the latest conflagration in Pakistan, where its army chief, General Raheel Sharif, has launched an offensive against Sharif ’s democratically elected government to gain control of its foreign affairs.

As news of Pakistan’s domestic crisis started filtering in, Doval reportedly advised Modi to seize the opportunity. That’s when foreign secretary Sujatha Singh was asked to call up

36

September 30, 2014

Basit and tell him to cancel the invite to Hurriyat leaders. The logic was that the Pakistan government could not have agreed to such a “request” when it was under siege from the army. Doval’s calculated decision to make the Hurriyat leaders fall guys and Pakistan as the “villain” to India’s efforts to restart the dialogue process, seemed to be working. Both the Hurriyat and Pakistan are now targeting Modi’s government.

The government needs this kind of “outcry” to enthuse party workers in J&K, especially in Hindu-dominated Jammu, where it has launched a mission to win over 44 seats in the 87-member assembly and thereby, chief ministership. The BJP’s attempt to install the first Hindu chief minister in the only Muslimdominated state in India has put local political players, including separatist leaders, in a tight spot.

CAUGHT IN A QUANDARY Traditionally, the separatist leaders have always boycotted J&K elections. They don’t believe in the Indian constitution and demand independence, both from India and Pakistan. However, this time, the ground situation is different and the separatists are now caught in a bind, as for the first time, the BJP has emerged as the main contender for power.

So, if they announce a poll boycott, it will only help the BJP gain more votes and if they don’t, there could be a large voter turnout which will negate their claims that most Kashmiris wants “azadi” (independence).

But the BJP also has to contend with the two main political parties in the state—the ruling National Conference (NC) and the People’s Democratic Party (PDP). The assembly seats are spread out across three geographical areas based on different religious identities. Muslims dominate Kashmir Valley, which accounts for 46 seats, Hindus are strong in 37 seats in Jammu region and Buddhists are dominant in four seats in LehLadakh. To reach the half-mark, the BJP will need 44 seats.

The party’s internal feedback is that it has a good chance of grabbing all 37 seats in Jammu and four seats in Ladakh, which adds up to 41. To get three more seats for the magical number of 44, the BJP has adopted mul-

TESTING HUMAN GRIT Army personnel carrying out rescue operations in the flood-hit state

UNI

tiple strategies. One is to provoke the Hurriyat, whose influence only works in the Valley, to announce a poll boycott and proactively implement it. It also wants Pakistanbased terrorist groups, all controlled and funded by the Pakistan army, to issue threats asking people not to participate in the election, like in the past. These twin factors will reduce voter turnout in the Valley, which, in the 2008 election, was 51.66 percent.

WOOING PANDITS In addition, the BJP has launched a massive drive to enroll all eligible Kashmiri pandits in the voter list and make arrangements for them to cast their votes. They have an option to participate in J&K elections from their resettlement camps.

Past experience tells that the poll boycott call from separatists and terrorists works in six constituencies—Habba Kadal, Sopore, Anantnag, Bijbehara, Amira Kadal and Tral.

During the last elections, polling in these constituencies was negligible. But if even a small number of pandits vote in these constituencies, it could help add to the BJP’s kitty.

Sensing the BJP strategy, J&K Chief

UNI

Minister Omar Abdullah appealed to separatist leaders not to give a poll boycott call.

In an election rally in Srinagar on August 24, he said: “They (BJP) are banking on boycott in Habba Kadal, Amira Kadal, Sopore, Tral, Anantnag and Bijbehara constituencies and believe these are the seats they can have in their kitty. Boycott has not helped in the resolution of Kashmir; boycott has not even helped the separatist leader (Syed Ali Shah Geelani).” He also explained that the BJP was focusing on six assembly constituen-

The floods have strengthened the BJP’s position, with even Congress leaders admitting the government’s promptness in relief operations.

INDIA LEGAL September 30, 2014

37

THE NATION/ J&K/ bjp strategy

If the separatists announce a poll boycott, it will only help the BJP gain more votes and if they don’t, there could be a large voter turnout which will negate their claims that most Kashmiris wants independence.

FLAGBEARERS OF KASHMIRI AZADI Separatist leaders Syed Ali Shah Geelani (top) and Yaseen Malik (above) at the Pakistan High Commission in New Delhi

38

September 30, 2014

cies, which have a sizeable presence of Kashmiri pandits. “If the boycott continues, the people of Kashmir would be controlled from somewhere in Nagpur (RSS headquarters) or Jhandewalan (RSS headquarters in Delhi),” he warned.

However, Abdullah’s NC has lost clout in the Valley, as the recent general election results revealed. Both the NC and its coalition partner, the Congress, didn’t get any seat, while the BJP and the PDP won three seats each out of a total of six. These three seats roughly cover 33 assembly constituencies, boosting its “Mission 44” campaign.

On the other hand, the unprecedented floods in the state have cemented the BJP’s position, and even Congress leaders Ghulam Nabi Azad and Digvijaya Singh begrudgingly admitted the government’s promptness in rescue operation, and the relief grant of `1,000 crore to the state.

REPEALING ARTICLE 370 Winning 44 seats will further the BJP’s aim of implementing its long-cherished agenda to repeal Article 370, which gives the state special status. If the J&K assembly passes a resolution to repeal this article and it gets ratified in parliament, it can be done away with, provided it is not seen as unconstitutional by the Supreme Court. If this article goes, then, J&K will function like any other state and citizens can acquire property there. Gradually, the demography of the region will change.

It was during the 2008 assembly polls in J&K that the BJP’s rise started. It was a surprise winner as, from one MLA in the 2002 assembly elections, it secured 11 seats, making a clean sweep in Jammu and Kathua districts.

Analysis of the results showed that it benefited from the Shri Amarnath Shrine Board (SASB) controversy in July and August 2008. It started when the state government handed over some forest lands to SASB for beautification and construction of more facilities for pilgrims. When the Hurriyat objected to this, the government revoked its earlier decision. The BJP opposed this and launched a campaign.

Since Amarnath is one of the most revered of Hindu shrines, the party’s emotive campaign worked during the assembly election.

Subsequently, the party launched an agitation against the “step-motherly” treatment meted to the Jammu region at the hands of a minority chief minister who gets elected on the strength of Kashmir’s voters. This polarization politics worked and solidified BJP’s grip on Jammu region.

It waits to be seen if these strategies will work during the coming polls. IL

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MY SPACE/ hk dua /judicial appointments

WHEN AN INSTITUTION CROSSES THE LIMIT it was wrong on the part of the supreme court to arrogate to itself the power to appoint judges under the collegium system

I

N the constitutional scheme of things, there is a clear demarcation between various institutions窶馬amely, parliament, judiciary and executive. Whenever any organ of the state, any one of these three, exceeds its limits, people sense danger.

In the 1970s, there was talk of a committed judiciary. And later, of the supersession of judges. An eminent judge, Justice HR Khanna, resigned on a matter of principle and conscience. There was turmoil and the people were concerned because the executive, at that time, was crossing the limits prescribed for it.

CORRUPT SYSTEM In the 1993 judgment, which paved the way for the collegium system, the judiciary had crossed limits. Brother judges went on to appoint brother judges. And, you know, when brother judges appoint brother judges, nepotism creeps in, favoritism comes in, and in a collegium, there can be instances of bargaining taking place between one judge and another, with the chief justice taking the better share.

Justice JS Verma was on the 1993 bench, which set up the collegium, a novel institution, which is not prescribed in the constitution. He was for setting it up. Later on, he regretted this decision of the Supreme Court in public. I think he appeared before the parliamentary committee and also expressed this view. Also, Anil Shakya

40

September 30, 2014

Photos: Rajeev Tyagi

in public statements, and in private conversations, he went on saying that a wrong decision was taken by the bench in 1993, of which he was a member. His regret was that the Supreme Court approved of a collegium.

Nowhere in the world do judges appoint themselves. Always, it is an executive decision, but there are checks on the misuse of executive power. That aspect, I think, is taken care of by the Judicial Appointments Commission, which is being provided for.

But I would say that there has been considerable lobbying with the collegium members by judges from high courts. Those who are aspiring to be Supreme Court judges don’t leave any stone unturned to get in there. In the high courts, they retire early and since they want to be in the Supreme Court, they visit the houses of collegium members, trying to bring influences of all kinds. Stringpulling is the name of the game in Delhi.

That kind of culture, which prevails in the judiciary, leads to malpractices, and should be corrected.

JUSTICE COMPROMISED In the process, the quality of justice has declined in the country. I would like to cite two or three cases. Take the Jessica Lal case or the Priyadarshini Mattoo one. There was miscarriage of justice in both. Only after public concern and media noises, ultimately,

did the highest court intervene to provide justice. Also, I can’t understand how in the trial courts, and even at the high court level, did a BMW car become a truck, and a man who killed six people on Lodhi Road in the capital of India, got away very lightly. This is because the right kind of people are not being appointed in the highest judiciary.

The collegium neither laid down the criteria for appointment of judges nor said what kind of judges you need in high courts or in the Supreme Court. The Delhi high court has come out with judgments which spell out criteria even for admission to nursery schools.

But people do not know what criteria are there for being appointed as a judge to a high court or the Supreme Court.

I am a little worried when a recognized organ of the state exceeds its limit and when a recognized organ of the state thinks that whatever it says is always right. I get equally worried about individuals who think they are always right, worried about the institutions when they think they are always right. Take this aberration of a collegium. It was wrong on the part of the Supreme Court to arrogate to itself the power to appoint judges. That is being set right in the constitution, and that is why I support this bill. IL

NO FAIR PLAY The collegium system led to miscarriage of justice in many cases until there was public outcry. (From left to right) The Priyadarshini Mattoo, Jessica Lal and BMW cases are perfect examples of this

—The author is a former editor of Hindustan Times and a Rajya Sabha member INDIA LEGAL September 30, 2014

41

SOCIETY/ prohibition / kerala

BOTTOMS chief minister oommen chandy’s idea of a phased liquor ban may earn him brownie points among womenfolk. but will it work in a state which is the largest consumer of alcohol?

By TK Devasia

P

DRUNKEN STUPOR A sloshed man on a roadside in Kochi, a common sight in God’s Own Country

42

September 30, 2014

REETHI Nair (name changed), a housewife in Kozhikode, tried to control her husband’s drinking habit in the only way she could—she destroyed the liquor bottles he brought home. She realized the futility of it after he started coming home drunk. Preethi tried almost everything to sober him up in the last 15 years, including taking him to deaddiction treatments, but failed. So, she is naturally skeptical about the Kerala government’s move to impose prohibition.

As for drinkers, they are not unduly worried about the “partial prohibition” introduced by the Congress-led United Democratic Front (UDF) government. The policy will see all 700 bars in the state, which aren’t Five Star, being shut from September 12. It will also see 387 retail outlets of Kerala State Beverages Corporation (Bevco) and Kerala State Consumers Co-operatives Federation (Consumerfed), sole liquor distributors in the state, being shut down gradually over the next 10 years, starting from October 2.

This means that Malayalees, who consume nearly 35 million cases of Indian Made Foreign Liquor (IMFL) and beer a year, will now have to queue up before 348 retail outlets (after 10 percent have shut down) and 23 Five Star hotels from October 2 if they do not quit drinking.

SEASONED DRINKERS Drinkers who queued up at liquor outlets along the road from Kochi, the commercial

DOWN TIPPLERS’ TROUBLES Drinkers will have to take extra pains to procure liquor now, with outlets like this set to be phased out

capital of the state, to Palai, the home of Kerala’s first liquor baron, Joseph Maichel Mannarkattu (called Mannarkad Pappan), a day after the government gave its nod for partial prohibition, said they were in no mood to stop drinking. Drinkers at a Bevco outlet at Kuravilangad said they were not inordinately worried, as they could get their quota from outlets that were open.

Their methods to get their daily tipple are ingenious. “We can always form a group and depute one member to procure the quota from some other outlet if the one in our area is closed down. We will compensate him by paying him for his time,” reveals Rajesh, 30, an autorickshaw driver in Kuravilangad. He started drinking from the age of 18 and says he cannot think of quitting the bottle. He

Chandy says the state spends heavily on health and other issues triggered by liquor consumption. He stresses that prohibition would benefit the state in the long run. needs at least three pegs after a hard day’s work to get sleep.

Thomas Varghese, a software professional at Kakkanad, the IT hub in Ernakulam, doesn’t like to stand in a queue in front of retail outlets. And he needn’t, as he has a better option brewing at home—online home alcohol distillers. These equipment will give him better and cheaper liquor. Already, details of websites selling such liquor have INDIA LEGAL September 30, 2014

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SOCIETY/ prohibition / kerala

Drinkers who queued up at outlets along the road from Kochi to Palai, a day after the government’s nod for partial prohibition, said they were in no mood to stop drinking. started appearing on Facebook and other social networking sites. The price of a distiller that allows one to brew one’s favorite alcohol at home starts at `4,000.

Follow Gujarat model, says Supreme Court The Supreme Court (SC) on September 11 said that more than 700 bars in Kerala cannot be shut down before September 30. It questioned the Kerala government’s decision to allow bars only in five-star hotels and said, “If you want to ban alcohol, stop it totally, like Gujarat.”

These bars had taken the government to court as they would lose their licenses if it went ahead with its plan to impose prohibition. The SC has said that the Kerala high court must take a final call on this and deliver its verdict by the end of the month.

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September 30, 2014

LURE OF TODDY But Vivek Pillai, a former employee of Bevco, says there may be no need for drinkers to take this risk, as toddy shops and beer and wine parlours have been spared from this new liquor policy and can quench the thirst of hard drinkers. “When arrack (country liquor) was banned in 1996, toddy shops sold it. Those who cannot afford IMFL can flock to these toddy shops even now for the required kick,” says Pillai. “It is not difficult to turn spirit into whiskey, brandy or rum.

IMFL manufacturers have been producing all varieties of drinks for Malayalees by mixing coloring agents and additives with molasses,” he says.

Interestingly, the Kerala high court had several times brought to the notice of the government the mismatch between toddy production and sale. At one point, the court had also suggested the closure of toddy shops, numbering over 4,000.

Adoor Gopalakrishnan, noted film director, says that this misconceived prohibition will have a catastrophic outcome, as it will lead to the free flow of spurious liquor.

“Arrack ban produced a hooch baron called

Watering hole Kerala’s drinking outlets as on September 13, 2014

IMFL retail outlets: 387 Five star bars: 23 Toddy outlets : 4,122 Beer and wine parlours: 111

Manichan. Total prohibition will produce a chain of bigger hooch barons and trigger massive human tragedies,” he says. Prohibition, he adds, is not practical in a state like Kerala, where consumption of liquor is the highest in the country. It is not easy for people who queue up before bars and Bevco outlets in the morning to quit drinking.

POLITICAL MOVE Most drinkers share his view and feel that the UDF move will fail, as the decision is a strange concoction of politics and religion.

Roy Abraham, a Gulf returnee living in Palai, believes that the new liquor policy has been triggered by a change in political equations in the Congress, following the appointment of VM Sudheeran as party chief and pressure mounted on the government by Muslim and Christian organizations.

The UDF government, which did not take any major initiative to implement its policy of phased prohibition after the ban on arrack 18 years ago, had no intention of taking the

next step when it decided not to renew the licenses of 418 bars on the eve of the Lok Sabha elections. The government’s plan was to renew them after elections, but Sudheeran made the going tough by taking an adamant stand against reopening these bars. Abraham believes that Chief Minister Oommen Chandy had proposed the recent prohibition to cut Sudheeran to size. If Chandy had succumbed to his pressure and agreed to permanently shut down these bars, the party chief would have emerged a hero.

Chandy made a sudden shift in his stand, much to the surprise of the prohibitionists, after he saw support swelling for Sudheeran.

The party chief had rejected all compromise formulas, including one which envisaged renewal of licenses of all bars with three-star facilities and granting time to the rest to upgrade their facilities.

Though Chandy has scored a point against his rival by proposing closure of all the bars and 10 per cent of retail liquor outlets every year, he is not ready to forgive

Noted film director Adoor Gopalakrishnan says that this misconceived prohibition will have a catastrophic outcome, as it will lead to the free flow of spurious liquor.

Sudheeran, a chief ministerial contender, for putting him in a tight corner. Chandy has already taken his grievance to the Congress Working Committee member AK Antony.

PATIENT WAIT A common sight at a liquor outlet in Kerala

HUGE REVENUE LOSS Chandy, apparently, pushed for this drastic measure without discussing its implication or taking stakeholders into confidence. It resulted in many stakeholders, including several ministers, coming out against the measure. While finance minister KM Mani is worried about the loss of revenue to the tune of `7,500 crore annually, tourism and IT ministers fear it will affect the growth of these two sectors, which are the major revenue earners in the industrially backward state.

INDIA LEGAL September 30, 2014

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SOCIETY/ prohibition / kerala

‘Social costs of alcoholism higher than economic costs’ Kerala has the dubious distinction of having the highest per capita consumption of liquor—8.3 liters—as compared to the national one of four liters. It is, therefore, a moot question how prohibition will be enforced. But Chief Minister Oommen Chandy is optimistic that the ban will be a success. Excerpts from an interview with Shobha John Why was prohibition imposed and rushed through without any consultation?

The scourge of alcohol was fast eroding Kerala’s society and the state had attained a rather dubious distinction of having the highest number of alcoholics. It was not a decision taken in haste. In fact, society at large has been in favor of banning liquor for quite some time. Recently, the demand reached an all-time high and the political fraternity in Kerala also felt that the time had come to take a bold move to uproot this evil. The matter was finally taken up by my government and the political will and consensus that emerged, resulted in a decision for phased ban of alcohol.

Prohibition has failed in various states. Don’t you think people will now go to bootleggers or take spurious liquor, leading to hooch tragedies?

It failed in many states because most of them implemented it unscientifically.

We are doing it in a phased manner and along with that, are educating people on the need for such a move. We are now closing down all bars, except those in Five Star hotels. Kerala State Beverages Corporation (Bevco) outlets will continue, with 10 percent of them winding up every year. It will take 10 years to reach a liquor-free Kerala. This is our preparatory period and we will continue to focus on educating people.

We will also be vigilant against spuri-

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September 30, 2014

ous liquor. The police and the excise personnel have been directed to confront this challenge in the days to come. We are also strengthening our campaigns against the usage of intoxicants and the present drive, “Clean Campus, Safe Campus”, of the home department will be intensified.

The liquor industry contributes over `8,000 crore to the state exchequer.

How will you make up for it?

I agree that the revenue loss is bound to create a dent in our economy. But, how can one overlook the burgeoning trend of alcohol consumption in Kerala, which has led to increase in crime rates, disintegration of families, road accidents, health problems and divorces? In fact, the social cost is much higher than the economic cost.

Won’t this hit tourism, one of the main sectors in Kerala?

We still have the option of beer and wine parlors, so it is not fair to say that the tourism sector will be affected badly. It is also a false notion that liquor of strong grade is an inevitable component of Kerala’s tourism sector.

A good majority of foreign tourists do not prefer IMFL. This issue has also taken on religious connotations with some Hindu outfits seeking a ban on wine served in churches. Your comments.

It has nothing to do with our new abkari (liquor) policy. Wine is used in

churches as part of the religious practice of Christians.

What is the rehabilitation package being worked out for those rendered jobless due to the closure of bars?

We have introduced two new schemes, viz., Punarjani 2030 and Kerala Alcohol Education Research, Rehabilitation and Compensation Fund (KAERCF) for rehabilitating employees of bars that will be closed down (other than those attached to hotels). The fund for this will come from the 5 percent cess levied from the sale of liquor through Bevco outlets.

Apart from this, the excise department will also have its own assistance program to rehabilitate the staff of BEVCP outlets, who will lose their jobs with the closure of some outlets on a yearly basis. The fund for KAERCF will be generated from voluntary donation of a day’s salary by Keralites residing inside and outside the state. KAERCF will be mainly utilized for various awareness campaigns against the evils of alcohol consumption.

Critics say the move is a political one to checkmate chief ministerial rival, KPCC president VM Sudheeran?

The new abkari policy has been arrived at after having sufficient discussions among KPCC, coalition partners in the UDF and after taking into account the increasing demand for alcohol ban from society itself. Everyone has wholeheartedly welcomed the decision.

Excise minister K Babu lamented the lack of machinery to ensure effective implementation of this decision. He said there would not be enough excise staff to deal with the flow of hooch and spread of drugs as a result of the phased prohibition. He is already grappling with a sharp rise in narcotic and abkari (activities related to manufacture and sale of alcoholic drinks) cases.

According to Babu, since 2011, 1,769 persons were arrested in connection with 1,618 narcotic cases. About 2,690 kilograms of ganja, 6.12 kilograms of heroin, 7.41 kilograms of hashish, 5,448 narcotic ampules, 65 grams of charas, 2.34 kilograms of brown sugar and 1.355 grams of opium were seized during the period. Babu says prohibition would confound the situation as drinkers may switch to ganja, heroine and other dangerous substances.

Home Minister Ramesh Chennithala has already warned of an attempt by an international racket to lure the young generation to drugs. He feels that prohibition will help the gang which is now active around campuses to spread its tentacles. “It will not be easy for the excise department to check the menace as drug abuse is not easily detectable,” he added.

SPIKE IN CRIMES The excise department now anticipates a sharp rise in cases of illicit brewing and smuggling of spirits and liquor from other states. Out of the 14 districts in Kerala, 10 border Karnataka and Tamil Nadu, where there is no restriction on liquor sale.

Moreover, Mahe, part of the Union territory of Puducherry, where liquor is 40 percent cheaper than Kerala, is within the state’s territory, surrounded as it is by the northern districts of Kozhikode and Kannur.

The numbers say it all. Cases reported under the Abkari Act have witnessed a quantum jump in recent years. They relate to illicit brewing and smuggling and went up from just 1,975 in 2008 to a stupendous 48,828 in 2013. Till May this year, 20,120 such cases were registered.

To curb these rising crimes, Babu will need the help of the police, but the home minister has pleaded his helplessness, saying his men are already overburdened. Plus, the

Officially banned Manipur: The state was declared a dry state on April 1, 1991. The state loses `300 crore every year due to the ban.

Liquor is still sold illegally.

Mizoram: A bill on liquor prohibition and control was cleared by the assembly in July, which has replaced an old act. `300 crore is lost in revenue every year. Liquor travels into the state through smuggling.

Nagaland: Prohibition since 1989.

Estimated loss `50-60 crore. Liquor can be arranged from Assam and Myanmar.

Gujarat: Prohibition imposed right since its formation in 1960. The state loses `5,000 crore per year. Liquor comes in illegally from Rajasthan and Gujarat and is carried into the state by bootleggers.

Special permission can be had on medical grounds for consuming limited quantity.

creation of new posts may not be possible until the state overcomes the financial crisis caused by prohibition.

Finding alternate sources of funding to meet the deficit is not easy in a state where industry and agriculture are almost stagnant.

Liquor has contributed nearly 25 percent of the state’s revenue receipts for the past several decades.

Chandy is, however, not worried as he says the state was spending more on health and other issues triggered by liquor consumption. He stresses that prohibition would benefit the state in the long run. He has also dismissed concerns about the success of prohibition. “I am aware prohibition has failed wherever it was implemented. Ours is not total prohibition that others have tried, but a march towards prohibition through promotion of abstinence. We will carry out a sustained campaign during the next 10 years against alcohol. I am sure this will help drinkers realize the hazards of drinking and make them quit the habit,” he adds. While Chandy may describe his government’s liquor policy as a revolution, others feel it will bring in social anarchy. It waits to be seen how different this prohibition will be. IL INDIA LEGAL September 30, 2014

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SOCIETY/ sex workers

RAW DEAL Sex workers in India had more rights before Independence than what they have now Amarjeet Singh

GREEN LIGHT FOR activists feel that legalizing prostitution will lower crimes against women. but no one wants to bell the cat

By Divya A 48

September 30, 2014

T

HE year was 1993. Freedom fighter Kharaiti Ram Bhola had won another battle after waging it for seven long years. The Supreme Court (SC) had finally ruled in his favor, giving children of sex workers the right to go to school. The court had issued a notification to all schools to allow either the father’s or the mother’s name in the admission form, as opposed to the earlier practice of having only the father’s.

The ruling came into effect in Delhi but was subsequently applied countrywide. Not only that, its ambit was widened in 1996 to allow the mother’s name to be incorporated in all government and non-government forms in the country.

That was a watershed moment in the history of social justice in India. Though children of sex workers were mostly

brought up by mothers, schools didn’t recognize just their name during enrolment and insisted on the father’s name too. Due to this, these children were refused the fundamental right to education. In the wake of the judgment, as many as four crore “fatherless” children got admission in schools, out of which 33 lakh were offsprings of sex workers, according to surveys.

FULFILLING CRUSADE Bhola, now 86, lives in Delhi’s Patel Nagar and runs an NGO for destitute women, called Bharatiya Patita Udhar Sabha (BPUS), which runs five schools in the red light areas of Mumbai, Delhi, Varanasi, Ahmedabad and Surat. It has 600 children on its rolls. Even though BPUS was founded in 1984, the turning point of Bhola’s crusade came with the 1993 SC directive. “I consider this a landmark decision towards establishing the rights of sex workers in India. Without a father’s name, sex workers’ children were not taken into schools. That’s 24 lakh sex workers and their 54 lakh children,” he says, sitting in his office on Najafgarh Road in West Delhi.

Bhola has now taken his fight to the next level—requesting the government to legalize prostitution. He says: “This is the world’s old-

What the law says...

RECENTLY, a national award-winning actress was arrested along with her pimp for practicing prostitution and has been sent to a rescue home run by the women and child welfare department.

However, the Immoral Traffic (Prevention) Act, 1956 defines prostitution as the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression “prostitute” shall be construed accordingly.

Therefore, it is clear that the practice of selling one’s own sexual service voluntarily or the sexual activity in exchange for a fee, between two consenting adults in private is not a crime.

What is illegal is pimping, keeping and operating a brothel or a third party benefitting from the prostitution activity. Therefore, the charges against the actress are highly debatable.

Once prostitution is legalised, sex workers can use their earnings to educate and bring up their children, says Kharaiti Ram Bhola who runs an NGO for destitute women.

RED LIGHT AREAS est profession and no one has been able to stop it.” During the East India Company’s rule in India, the British set up “comfort zones” for their troops. Women were brought from Europe and Japan to service British soldiers and local Indian men. Bhola says that before Independence, prostitution was a recognized profession in India; sex workers were given licenses to practice their trade.

SAD PLIGHT But now, the biggest sufferers are children of these sex workers. “Since the profession of their mothers is not recognized, they not only

face social stigma and ostracization but are also bereft of the benefits of governmental schemes and other entitlements,” says Bhola.

“A huge amount of the money these women earn, goes to touts, brothel owners and policemen. If the profession is regularized, sex workers can use their earnings to educate and bring up their children,” he states.

In India, unlike other professions, which are protected by labor laws, sex workers aren’t. According to researches carried out globally, it is estimated that as many as 10 million children are engaged in prostitution, with many of them being the children of INDIA LEGAL September 30, 2014

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SOCIETY/ sex workers

sex workers. They are forced to live in ghettos along with their mothers and have limited options as they grow up. By legalizing prostitution, these minors can be weaned away.

Bhola, who is a member of the Central Advisory Committee, Ministry of Woman and Child Development, maintains that legalizing prostitution doesn’t imply, by default, that we are encouraging it. In the aftermath of the December 2012 Nirbhaya gang rape incident in Delhi, he even wrote to Justice JS Verma, who was heading the committee constituted to review anti-rape laws, and asked for prostitution to be legalized.

His letter said: “Due to the non-legalization of sex trade in India, anyone wanting sex

Oldest profession

The number of female sex workers in India: Over 30 lakh Percentage of prostitutes who enter the trade before 18 years: 35.47 Number of children involved in prostitution: 12 lakh States with high concentration of prostitutes: Delhi, Uttar Pradesh, Bihar, Rajasthan, Gujarat, West Bengal, Assam, Madhya Pradesh, Karnataka, Andhra Pradesh, Orissa, Goa, Tamil Nadu Countries where prostitution, pimping and brothel-owning are legal: Netherlands, New Zealand, Venezuela, Indonesia, Greece, Germany, Ecuador, Canada, Nicaragua, and parts of the US

fears to enter the red-light areas due to the fear of police and touts....The time is ripe for the central government to legalize the profession in India, as has been done by 164 countries in the world....Till the time it is done, the government must issue licenses to sex workers to carry on their profession without any fear.”

STOPPING HEINOUS CRIMES Examples elsewhere have proved that if prostitution is legalized, people who wish to satisfy their sexual urges will go to prostitutes rather than commit heinous crimes, such as rapes. The late Khushwant Singh had remarked once: “… the necessary step (to prevent rape) is to legalize prostitution—carried out in brothels or by call-girls—provided the sex workers are adults and have not been forced into the trade. The more you try to put down prostitution, the higher will be the incidence of crime against innocent women.

You may find the idea repulsive but ponder over it and you will realize there is substance in the argument.”

So what does the law say about sex workers? The Immoral Traffic (Suppression) Act (SITA), which came into force in 1956, says that prostitutes can practice their trade privately but cannot solicit customers in public.

Clients can be punished for sexual activity in proximity to a public place, while organized prostitution (brothels, prostitution rings, pimping) is illegal. In practice, SITA is not commonly used. The Indian Penal Code, which predates SITA, is often used to charge sex workers with vague crimes such as “public indecency” or being a “public nuisance”. In 1986, SITA was amended to become The Immoral Traffic (Prevention) Act or PITA. This was intended as a means of limiting and eventually, abolishing prostitution in India by gradually criminalizing various aspects.

It’s obvious that this contentious issue needs to be handled maturely. But are we up to it? IL

—The author is Sanskriti-Prabha Dutt Fellow for the year 2013-14. She works with The Indian Express in New Delhi Saibal Das

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September 30, 2014

RIGHTS/ consumer fora

THE LONG & WINDING ROAD that sums up the plight of consumers in courts. but with the likely amendment of the consumer protection act, succor could be in sight

By Anita Katyal

Anil Shakya

I

T began with a bang of a promise, but ended with a whimper. When the Consumer Protection Act was enacted in 1986, it was hailed as a landmark legislation. Consumers had reason to celebrate, as the law had finally recognized their rights by providing them a grievance redressal mechanism while holding the seller accountable. Earlier, consumers

could do precious little when saddled with defective goods or unsatisfactory services.

Finally, the consumer was the king.

But 28 years down the line, there is a serious rethink about the efficacy of the law.

Various studies conducted by consumer organizations have revealed that the act has failed to provide speedy and simple justice. Consumers have kept away from the redressal forums INDIA LEGAL September 30, 2014

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RIGHTS/consumer fora

Consumers have kept away from the redressal forums because of long delays and knotty procedures. The compensation is not also worth the time and effort.

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September 30, 2014

because of long delays in deciding cases and knotty procedures adopted by them. Even the compensation awarded is not worth the time and effort.

ON GOVERNMENT’S AGENDA Prodded by consumer organizations, the Congress-led UPA government had amended the Consumer Protection Act, but unfortunately, the bill could not be passed during its regime. The new minister for consumer affairs in the BJP-led NDA government, Ram Vilas Paswan, has put this law on his priority list and initiated fresh consultations on it so that the bill can be passed in the winter session of parliament.

“There is no doubt that the 1986 act has become dated…there have been profound changes since then....new delivery mechanisms are now in place, while consumer expectations have also changed. So, we felt the need to modernize the law to bring it abreast with current conditions,” says G Gurucharan, additional secretary, Department of Consumer Affairs.

Gurucharan maintains that the original objectives of the law had been defeated because of poor practices and the manner in which redressal fora were functioning. “They have become court-like with their excessive emphasis on judicial processes,” he says.

However, in the process of providing “simple, affordable and speedy” justice to consumers, the state could end up inviting the wrath of the legal fraternity. There are two key amendments in the proposed bill, and these have raised the hackles of lawyers and judges.

A new provision has fixed the monetary limit of goods or services up to which advocates shall not be allowed in consumer disputes. For instance, neither party can engage a lawyer in the District Consumer Disputes Redressal Forum if the value of the goods and the compensation claimed is less than `5 lakh. The monetary limit is fixed at `50 lakh for the State Consumer Disputes Redressal Commission and `1.5 crore for the National Consumer Disputes Redressal Commission.

The second controversial provision pertains to the composition of these redressal fora. It is proposed that the present clause

stating that 50 percent of members selected for these fora should have a judicial background be deleted. This will allow the entry of experts and eminent people in place of those from the legal fraternity.

LEGALLY UNTENABLE? These two provisions have predictably put the proverbial cat among the pigeons and pitted lawyers against consumer organizations. It could even spiral into a prolonged legal battle.

Lawyers have decried the move on their ban, stating this is not legally tenable and will place the consumer at a disadvantage, as he will be deprived of the much-needed legal assistance. Consumer activists, on the other hand, maintain their studies have shown that it is possible to settle many cases quickly and that the periodic adjournments sought by lawyers lead to unnecessary delays.

“The provision keeping out lawyers needs to be treated with the contempt it deserves.

Our experience shows that lawyers are required to settle consumer disputes, as these do involve legal issues. This will be challenged in court and thrown out,” says Lalit Bhasin, a Delhi-based senior lawyer.

Endorsing Bhasin’s view, upcoming lawyer Mohit Abraham feels it is an unfair clause because it denies legal assistance to consumers who may not want to argue their own case.

“Having a counsel of one’s choice is a fundamental right of a person. It’s a different matter if a litigant wants to argue his own case, but how can an act lay down…no lawyers?” asks Abraham. He agrees with Bhasin that such a provision will not stand judicial scrutiny.

LACUNAE IN COURTS The proposed provision, he says, is based on the fallacious assumption that lawyers alone are responsible for the delay in adjudicating cases. “What this implies is that if you remove lawyers from the scene, everything will work beautifully,” he says, adding that the problem is far more deep-rooted.

The infrastructure at the district and state consumer disputes fora should be improved and they should be provided with more manpower if the cases are to be disposed off at a faster pace. Abraham says if lawyers are delaying cases by seeking periodic adjournments,

members of consumer disputes fora should be empowered to penalize them instead of doing away with them.

The overwhelming view in the legal fraternity is that the problem does not lie with lawyers alone, but also with the quality of people selected to serve as members on consumer redressal fora. Most do not show up regularly to hear cases, while virtually all consumer courts do not function for more than half-aday. As a result, cases keep piling up, leading to an average disposal time of three years.

Lawyers also disagree with the deletion of the clause stating that 50 percent members on such fora should have a judicial background.

Both Bhasin and Abraham maintain that a legal background is critical, as consumer disputes require interpretation of laws. “The issue here is not whether people have a judicial background… the important thing is to get the right kind of members,” Abraham says, adding that if the law is not interpreted correctly, it could be challenged which, in turn, would result in further delays.

Needless to say, consumer activists are not on the same page as lawyers. George Cheriyan, director of Jaipur-based Consumer Unity & Trust Society, who served on the three-member committee that drew up the amendments to the Consumer Protection Act, says their studies have shown that the intervention of lawyers and frequent adjournments sought by them led to long delays in settling disputes.

Cheriyan points out that the entry of lawyers often puts a consumer at a disadvantage, especially when he is battling a powerful corporate house as it has the funds to hire a battery of legal experts. He says the manner in which consumer dispute fora have been functioning has defeated the whole purpose of setting them up.

SPEEDY RELIEF These fora were not meant to function like regular courts but were envisaged as an alternative system to provide speedy relief to harried consumers. “That was the reason they were not referred to as courts. But over the years, these fora have been converted into regular courts,” bemoans Cheriyan.

Despite their differences, lawyers and consumer activists agree with the proposal to

introduce a chapter to the act providing for the constitution of mediation cells. These cells at the district, state and national levels are meant to encourage people to opt for settlement through mediation and will reduce the waiting period for the disposal of cases.

Bhasin says mediators are already being used, but the act has now made a provision to institutionalize the system. Abraham, however, says it should not be made compulsory and should only be explored as an option if both parties agree with it.

Eager to get the bill passed at the earliest, Gurucharan says outstanding issues would be sorted out through further consultations with the concerned stakeholders. While there may be differences on specific provisions, he says, the proposed bill has amendments which will benefit consumers.

For instance, Gurucharan says, the bill envisages the constitution of a Consumer Protection Authority on the lines of US Trade Commission to deal with unfair trade practices and class actions.

In addition, a special provision has been included for imposition of penalties in cases of product liability and misleading advertisements. In an effort to protect consumers, it has been proposed that only one appeal will be allowed against the order of a district, state or national fora. “We find that cases drag on for years because those unhappy with an order keep appealing to a higher authority. We, therefore, decided to limit the appeal to one,” Gurucharan says. It is hoped this will provide speedy justice to litigants. IL

SHOWING’EM THE DOOR

The new consumer protection rules, once passed by parliament, aims to lessen the involvement of lawyers at various consumer disputes redressal forums

INDIA LEGAL September 30, 2014

53

RIGHTS / afspa

WHAT’S THE REAL PICTURE? the media needs to ask tough questions about this act if a solution has to be found to the future of irom sharmila

By Kishalay Bhattacharjee 54

September 30, 2014

I

T may have taken a decade, but Irom Sharmila is now a household name.

The human rights crusader from Manipur, who was on hunger strike for 14 years protesting against alleged army atrocities, was released from hospital detention by a sessions court in Manipur on August 19. However, she was re-arrested two days later as the government charged her with attempted suicide.

Sharmila, who has been protesting against the Armed Forces (Special Powers) Act 1958, (AFSPA) went on hunger strike in 2000 and was force-fed by doctors through a tube going into her nose. While the media paid token attention to how she was locked up once again and every discussion on her as well as AFSPA leads to army bashing, one must know what the act is all about, how it has been misused.

An emergency ordinance, AFSPA was enacted in 1958 and has been extended over 55 years to help the army operate in “disturbed areas”. The act is draconian in nature and allows the army and paramilitary forces to kill anybody just on suspicion. There is an overwhelming majority of people who want this to go. The civilian government and its functionaries want it to be amended and made more “humane”. But the army says no.

Government-appointed commissions have rejected its validity, with the National Human Rights Commission saying it has been misused by the army. But does AFSPA serve the purpose it was meant to? It is no longer just about an enabling act for the army to operate in insurgency theaters. It has morphed into a tool for indulging in narcotics and gun-running by the army and police forces.

These facts have not been played up.

Retired generals defend AFSPA vehemently and irrationally. Others attack the army.

Family members of victims are paraded.

Human rights activists raise the pitch, while politicians manage to escape the heat. The militants don’t even figure in the discussion.

And Sharmila is just a silent picture in the background with a plastic tube attached to her nose and a dogged look in her eyes.

The media needs to ask some pressing questions on the issue. One, why is the government so scared of following court orders to let Sharmila continue with the non-violent

UNI

protest? There have been cases when people on fast were force-fed but they were never arrested and thrown into police vehicles.

Second, why don’t respective state governments withdraw the “Disturbed Areas Act” say, for example, from Tripura, Mizoram, Meghalaya or most of Assam where insurgency has been “countered”? What are the benefits of having the “Disturbed Areas” tag, which allows AFSPA to provide protection to rogues?

AFSPA is about impunity and Sharmila’s protest is against it. The security forces kill with impunity and get away with murder.

RELENTLESS FIGHT (Facing page) Irom Sharmila appearing in Patiala court in May 2014; (above) speaking to the media immediately after her release on August 20

I

t took one day for the army to take action against a Brigadier charged with sodomy in his unit in Jammu and Kashmir on August 23, 2014. But 14 years have passed since soldiers shot dead 10 people waiting at a bus shed in Malom, Manipur. Why hasn’t anybody been punished or held accountable?

It is not so much the act but the pattern of getting away with murder under the act that triggers protests. Soldiers have got away with allegations of rape, citing AFSPA, and the police, not covered under AFSPA, has used it as a protective gear to carry out staged encounters.

If various arms of the government are in favor of amending the act, how has the army prevailed over them?

Till all these questions are answered and Sharmila called for talks instead of being treated like a criminal, the stalemate over AFSPA will continue. IL INDIA LEGAL September 30, 2014

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ENVIRONMENT/ gir lions

A ROARING RUMPUS though the sc has ordered the gradual translocation of the big cats from gir forest in gujarat to kuno palpur in madhya pradesh, the wait continues

By Rakesh Dixit

girasiaticlions.org

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September 30, 2014

“Gujarat’s lions come from a very narrow genetic base... and that makes them very vulnerable. In case of an epidemic, they could even be wiped out.”

—National Board of Wildlife member Prerna Singh Bindra

T

he lion may be the king of the jungle, but the future of these animals in Gir forest are in someone else’s hands. An ambitious `79-crore plan to relocate the first batch of some 400 lions from Gujarat to Kuno Palpur in Madhya Pradesh is in doldrums, as it awaits a nod from the National Board of Wildlife headed by Prime Minister Narendra Modi. The relocation follows a Supreme Court (SC) order on April 15 last year.

Despite the deadline for implementation having lapsed almost a year ago, MP is not pushing for it, though it is eager to fund the entire plan without waiting for the center’s allocation. A senior MP minister said the central government was far from being cooperative, but MP didn’t want to press the point due to political considerations.

MP chief minister Shivraj Singh Chouhan is seen as a staunch Advani camp follower and does not want to be seen sparring with either Gujarat or the center, both BJP-ruled.

LONG WAIT The forest department of MP has already sent two reminders to the Ministry of Environment and Forests (MoEF) this year to start the relocation process, but nothing has moved. MP’s chief wildlife warden Narendra Kumar says: “I have written to the ministry’s expert committee to initiate operations for shifting the lions at the earliest.

We are ready from our side.” Incidentally, Kuno Palpur was chosen as an alternate home for Asiatic lions during a feasibility study by the Wildlife Institute of India (WII).

State forest minister Gauri Shankar Shejwar says: “Chief Minister Shivraj Singh Chouhan has already earmarked `30 crore to make Palpur-Kuno an appropriate home for lions.” Although he refuses to comment on the reasons for delay, he adds that on the direction of the monitoring committee constituted by the SC, MP has rehabilitated two villages that would get displaced when the lions come to a national park in Kuno Palpur.

The committee, headed by wildlife scientists Ravi Chellam and YV Jhala, had chalked out how these lions would be shifted. It had recommended the shifting of a single pride of five to ten Asiatic lions with 60-70 percent female population in the first set over the next two years. Every three to five years, two-three lions—mostly male— should be translocated from Gir to Kuno to maintain the inter-linkage between lion populations in the two sanctuaries, it had suggested. This would continue for 25 years.

Chellam, a well-known conservationist and former director of the Wildlife Conservation Society of India, says: “Kuno was chosen because of its size—3,000 square kilometers—and diverse prey base.

Lions need lots of space, plenty of prey and protection from people.”

Wildlife studies have shown that the prey count in Kuno was higher than in Gir. MP has already spent `14.5 crore for relocation of 1,543 families from 24 revenue villages so that an alternate habitat could be made for Gujarat’s Asiatic lions.

INDIA LEGAL September 30, 2014

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ENVIRONMENT/ gir lions ture that the Gujarat government vehemently cited in the SC to forestall the translocation of its lions.

The Gujarat government’s eight-year-long legal battle was based on two arguments. One was that man-animal affinity in and around Gir had ensured the growth of Asiatic lions from near extinction a century ago to a teeming population of 400. Two, the gun culture prevalent around the proposed home in MP poses grave danger to their survival. The wiping out of tigers from Panna National Park near Kuno Palpur was repeatedly cited in court. But the MP government reminded the court that tigers had been successfully reintroduced in Panna. If tigers can be translocated successfully, why cannot lions, it argued.

Why the long march THE SC’s verdict to shift the lions was primarily guided by wildlife experts’ concern that a single population of Asiatic lions in Gir faces the threat of epidemics, natural disasters and other anthropogenic factors.

This was precisely the gist of a study initiated by the Wildlife Institute of India (WII) in 1986.

The study found that the lions largely preyed upon wild herbivores such as sambar and chital and the size of their home range was 70 square kilometers for females and 140 square kilometres for males. It found that Gir Wildlife Sanctuary was highly overpopulated with lions.

There were numerous deaths because of ever-increasing competition between humans and animals.

Based on this study, MoEF conceived the project to safeguard these lions.

WII researchers confirmed that the Palpur-Kuno Wildlife Sanctuary was the most promising location for Asiatic lions and in 2007, certified it ready to receive its first batch of lions.

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“The translocation is about strengthening conservation prospects. At the moment, all our eggs are in one basket and that is a huge risk,” says Chellam.

During the first deliberations of the SC committee on July 29, 2013, the panel had brushed aside Gujarat’s objections to the process. MP forest department sources claimed that the committee was satisfied with the progress for translocation in Kuno Palpur.

ROYAL SIMILARITIES By a strange quirk of royal history, Gir and Kuno Palpur have something in common. By the end of the 19th century, lions had all but vanished in India. However, only the nawab of Junagarh painstakingly managed to keep a dozen of them alive in Gir forest under his state. Around this time—1904 to be precise— the then Maharaja of Gwalior had introduced some African lions in Kuno Palpur, presumably on the advice of Viceroy Lord Curzon.

Unfortunately, while the nawab’s conservation initiatives triumphed, the maharaja’s experiment failed miserably, as his lions raided livestock and some even became man-eaters and had to be shot dead. Wildlife experts attributed the decimation of the African lions to the notorious gun culture of the once dacoityinfested Chambal-Gwalior region, of which Kuno Palpur is a part. And it is this gun cul-

WHOSE PROPERTY? While setting a six-month deadline to start the translocation, a bench of Justices KS Radhakrishnan and CK Prasad ruled: “No state can claim the right over an animal merely because the animal is housed in a particular state. It does not become the property of that state, it belongs to the country.” Subsequently, a desperate Gujarat government filed a curative petition in court for review of the order, but that too was rejected on August 16 this year by a bench headed by Chief Justice RM Lodha.

Welcoming the ruling, wildlife experts pointed out that it was vital to safeguard the long-term future of these lions. “Gujarat’s lions come from a very narrow genetic base of about 25 animals at the turn of the last century, and that makes them very vulnerable,” says National Board of Wildlife member Prerna Singh Bindra. “In case of an epidemic, they could even be wiped out, and hence, it’s important that they have a second home.”

MK Ranjitsinh, Wildlife Trust of India chairman, also welcomes the court’s intervention. “I had helped set up Kuno sanctuary when I was MP’s forest secretary, so it is a dream fulfilled that lions will be introduced there,” he said.

Now, the ball is in the court of Modi, who is ex-officio chairman of the National board on wildlife. As Gujarat CM, Modi had sparred with the then environment minister Jairam Ramesh over relocation of lions from Gir. Meanwhile, MP waits for the first roar of the Asiatic lion. IL

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SPECIAL STORY/ bollywood/ legal scenes

Reel Vakils come, walk down memory lane with these court scenes, complete with drama, histrionics and suspense

By Jui Mukherjee

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September 30, 2014

O

RDER, order! Welcome to the courtroom of Bollywood, where drama and mystery are interspersed with humor. A place where the unthinkable can happen and last minute plot twists bring the story to a stunning climax.

Constantly on the lookout for fresh stories to translate on to celluloid, Hindi films have always found inspiration in a court and its tear-jerking, rage-inducing and eyebrowraising human interest stories.

Long before Boston Legal or Suits glamorized the world of lawyers, Bollywood had already done that. Right from black and white films like Awara (1951) and Kanoon (1960), Hindi cinema has, time and again, made its protagonists don the black robe. While it is heartening to see cinema acknowledge the important role played by lawyers, sometimes these legal eagles would so adroitly pull off extreme feats that the robe might as well have been replaced by the Batman’s cape.

Their histrionics would include long-winding monologues that would leave the whole crowd, including the judge, in a reflective mode. Their dramatic arguments could bring about a sudden change of heart, and were complete with arm flailing, sharp dialogues, emotional scenes and such well-crafted questions that the culprit would be trapped, willy-nilly. These vakils of Bollywood would put even the best interrogators of CIA to shame.

These filmy adalats provided not just boundless entertainment, but were educative. It is because of these scenes that even school kids learnt phrases like “mere qabil dost” (my learned friend), “ba-izzat riha” (acquittal), “tamam sabooton ko madde-nazar rakhte hue” (Keeping all the evidence in view) and “chashmadeed gawah” (eyewitness), even before they knew how to multiply. Not to forget other popular phrases like “Mi Lord”, “Your honour”, “The court is adjourned” and “Objection!”

Bollywood offers a plethora of courtroom scenes and India Legal has picked up some of the most memorable

ones. While some made viewers applaud, others made them squint in disbelief.

AWARA (1951) Directed and produced by Raj Kapoor, this film was much ahead of its time, portraying Nargis in the role of a lawyer, Rita, who defends her childhood friend and lover in the court of law in a murder case. Rita dons the black robe with pride in this flick, matching every step of her male counterpart, setting the tone for several Hindi films to come.

WAQT (1965) Directed by Yash Chopra, with an ensemble cast of Raaj Kumar, Sunil Dutt, Shashi Kapoor, Sadhana, Sharmila Tagore and Balraj Sahni, this classic explores a tricky murder trial. Although very effective in its time, today, the scene seems implausible, bordering on mockery with its overdramatic dialogues and actions. Sunil Dutt plays the defense advocate and acts his heart out, complete with long emotional gazes and melting puppy eyes in a bid to engage the conscience of witnesses. During one cross-questioning, he engages in an entire spectrum of emotions. From screaming at a witness, he moves close and almost whispers to him, urging him to place his hand on the Bhagwad Gita and reverse his earlier statement. Further, in order to prove a point about footprints at the crime scene, he actually drags a sack dripping with red liquid into the courtroom and asks the prosecutor to enact it himself.

INSAAF KA TARAZU (1980) This BR Chopra film too has a woman in the role of a lawyer. Simi Garewal plays Simi, a lawyer fighting for justice when her client, beauty queen Bharti Saxena’s (Zeenat Aman) rape case against the antagonist is challenged in court. The courtroom scenes in this film too come across as melodramatic. But the message is conveyed powerfully enough.

DOSTANA (1980) One of the highest grossing films of the 1980, Raj Khosla’s Dostana pitted Amitabh Bachchan against Shatrughan Sinha in the roles of a police officer and a lawyer respectively.

Vijay Varma (Bachchan) and Ravi Kapoor

(Sinha) are two best friends who decide to enter conflicting professions, where one catches criminals and the other, defends them in court. Differences arise when they both fall for the same woman. What follows is intense drama not only in the courtroom but also spilling over outside the court. Both lead actors deliver power-packed performances making this film a must watch.

OBJECTION, MY LORD! (Above) Nargis in Awara, a trend-setting movie; (facing page) Arshad Warsi in Jolly LLB, a true-to-life depiction of trial courts

ANDHA KANOON (1983) When it comes to unbelievable courtroom occurrences, this one could very well top the list. Directed by T Rama Rao and starring Rajnikanth, Hema Malini, Amrish Puri and Amitabh Bachchan, the film tracks the story of two siblings (Hema and Rajnikanth), who attempt to seek revenge on three men for murdering their family. The scene that takes the cake is one where Khan (Bachchan) chases Gupta (Puri) around the courtroom and murders him in full view of the public and the judge. He then goes on to give a lengthy monologue justifying his actions. One has to watch it to believe such a scene was conceived, executed and also accepted!

MERI JUNG (1985) Anil Kapoor and Amrish Puri match each other in a court in this Subhash Ghai film.

The courtroom scenes in this movie are a classic example of why Bollywood lawyers seem capable of moonlighting as caped vigilantes. In one scene, Kapoor’s character Arun Verma goes the extra mile to prove his INDIA LEGAL September 30, 2014

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SPECIAL STORY/ bollywood/ legal scenes

client’s innocence by drinking “poison” from a bottle. The whole situation seems as implausible as alien abductions, but provides unparalleled entertainment. Kapoor picks up the bottle—presented as evidence along with a chemical report of its contents in the court— with his bare hands. He then proceeds to gulp down the contents and stands to tell the tale, resulting in his client’s acquittal.

Imagine lawyers doing this in real life.

In another melodramatic scene, Verma, while arguing in a murder trial, mentions to the judge that the soul of the victim is present in court and is awaiting justice. He demands that the judge heed his supernatural claims.

EK RUKA HUA FAISLA (1986) Presenting a very different take on courtroom dramas, this Basu Chatterjee film follows the argument between 12 members of a jury who have to infer whether an accused in a murder case is guilty or not based on circumstantial evidence. Annu Kapoor, Pankaj Kapur and Deepak Kejriwal, among other actors star in the film, which is based on the Hollywood film, 12 Angry Men. Questioning the efficiency of a judicial system that can be easily manipulated unless upstanding citizens and professionals take notice, this film still continues to be a cult movie.

DAMINI (1993) Who can forget Sunny Deol screaming “tareekh pe tareekh” in this popular Rajkumar Santoshi film? The dialogue has come to epitomize what ails our judicial system today, with one adjournment after another. Fighting a high-profile gang rape case against a top-notch lawyer, Deol, in his role as Govind, has all the machismo of a quintessential Bollywood hero, but with a black robe around him. His character starts off as a disgruntled man, but eventually gives out a

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full-throated scream, pointing fingers at the judge as if rebuking him. At one point, he even suggests that the court’s structure be demolished and the books inside, burnt. This evokes an surprising reaction from the judge, who looks down as if hanging his head in shame, like a school boy being scolded by his teacher.

KYONKI MAIN JHOOTH NAHI BOLTA (2001) Inspired by the Jim Carrey starrer hit Liar Liar, David Dhawan presented this comedy centered around a lawyer who usually depends on lies to win his cases but is forced to speak only the truth after his son makes a wish that his father should only speak the truth. Govinda plays the lead role, lawyer Raj Malhotra. Hilarity ensues after Raj is physically unable to say anything but the truth.

The cat gets his tongue right in front of the judge and he alienates several people in the process. However, the film attempts to give a message on the importance of credibility and ethics, especially in the legal profession.

AITRAAZ (2004) This Abbas Mustan film, starring Kareena Kapoor, Akshay Kumar and Priyanka Chopra, is a milestone, as it tackles the controversial issue of sexual harassment at the workplace. It has the female lead playing a lawyer, which only a handful of Hindi films have done. The court scenes in the film were a hit with the audience, because of the thrill of watching a woman boldly fighting for her husband. The courtroom sequences and arguments may not be very realistic, what with last-minute witnesses and audio recording over a mobile set causing a complete shift in the verdict. However, it made for great viewing material.

MAINE GANDHI KO NAHI MAARA (2005) Applauded by film critics and niche audiences across the country, this Jahnu Barua film, starring Anupam Kher, Urmila Matondkar and Parvin Dabbas, follows the descent of Uttam Chaudhary (Kher) into a mental illness, which leads him to believe that he may have killed Gandhi. The film includes a courtroom sequence to prove that the toy gun that Uttam had used could not have killed anyone. It comprises stellar performances by the cast, especially Kher.

NO ONE KILLED JESSICA (2011) Directed by Raj Kumar Gupta, with Vidya Balan and Rani Mukerji in lead roles, this film was based on the controversial Jessica Lal murder case. Balan played Sabrina Lal, the deceased’s sister while Mukerji played a journalist groping for the truth. With witnesses turning hostile in the blink of an eye and outrageous claims by a few of them like “I don’t know Hindi” and “I was not in town”, the courtroom drama in this film kept viewers on the edge of their seats.

OH MY GOD (2012) Kanji Lal Mehta (Paresh Rawal) decides to fight a case in court against God himself in this popular film directed by Umesh Shukla.

When his shop collapses in an earthquake and the insurance company, with whom his shop is insured, refuses to come to his aid saying the mishap was an act of God, Rawal sues the Almighty. Godmen and lawyers of the insurance company are in for a shock as Mehta comes up with most original arguments on religion, faith and spirituality.

Courtroom scenes are especially memorable on account of Rawal’s endearing and effective portrayal of a middle class man, who is

disillusioned with the whole idea that a supernatural entity watches over us. The cross-questioning of spiritual figures makes for high-quality comedy.

JOLLY LLB (2013) Based on the 1999 Delhi BMW hit-and-run case, this Subhash Kapoor film went on to win a National Award for its entertaining yet enlightening retelling of events. Arshad Warsi and Boman Irani play sparring advocates. The same court setting serves as a playground for several laugh-out-loud moments as well as laudable ones. From a local singer breaking into a song inside the witness box, to another witness being asked to sit like a chicken and yodel for lying in court, this film has it all. Saurabh Shukla brings alive the character of a slouch judge, but one who can’t be fooled. Memorable monologues and exciting arguments make for good entertainment.

SHAHID (2013) Directed by Hansal Mehta and based on the life of lawyer and human rights activist Shahid Azmi who was assassinated in 2010, this film is a realistic and touching recreation of courtroom drama. Raj Kumar Yadav plays the titular character, bringing earnestness and passion into his portrayal. Azmi zealously defends his client who is accused of being a terrorist. IL INDIA LEGAL September 30, 2014

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HUMAN INTEREST/ faith /uttarakhand

For Whom the Bells Toll in a temple near almora, believers present their prayers on stamped paper to golu devta

By Ramesh Menon

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September 30, 2014

W

HICH is the highest court of the land? The Supreme Court, you would say without batting an eyelid. But for thousands of petitioners, the only court they trust is Chitai Golu Devta Temple, about eight kilometers from Almora. It was built in 1638 and the folklore since is that the deity loves to deliver justice.

So, like a typical court, scores of petitions on judicial stamped paper of `50, `100 and ` 500 denominations are strung all over the temple, trying to attract the attention of Golu Devta, one of the most popular deities in the Kumaon Hills. The petitions spell out the grievances in meticulous detail, complete with figures, addresses, names and even phone numbers. They eloquently display the deep faith petitioners have in getting their grievances addressed.

When their wishes are fulfilled, they come back to the temple for thanksgiving and demonstrate their gratitude by removing the petition and stringing up a brass bell.

Thousands of bells thus tinkle away in the breeze, lending a lyrical quality to the place.

THE FINAL COURT (Facing page) The temple precincts; (above) petitions hanging from a temple wall

DESPERATE PLEAS Many of the petitions hanging around are actual petitions rejected by courts. Some are pleas urging the deity to give them quick relief and deliver justice. The pleas are varied. A lover wants to be united with his sweetheart despite opposition from parents; a girl wants to do well in an examination; a young man wants a job; someone pleads for peace at home; another wants freedom from an alcoholic husband or even a cure for a serious illness.

Pore through the petitions and you will find every imaginable request. Hold your breath, one petition had a judge praying for elevation to the Supreme Court. When it recently fructified, he went back, removed his petition and hung up a brass bell. There were numerous petitions from lawyers pleading that they get appointed as judges.

Ponty Chadha, the real estate magnate, had filed a petition asking for full mining INDIA LEGAL September 30, 2014

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HUMAN INTEREST/ faith /uttarakhand

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September 30, 2014

rights in Uttarakhand. His wish, as we all know, was granted. Then, there are film personalities like Raj Kumar Santoshi who have visited the temple with petitions.

Bhojpuri film actor and singer Manoj Tiwari hung a bell there after he became a member of parliament. A newspaper reporter too has a bell in his name after he found a job.

FAST WORK But not all are lucky. One believer filed five petitions, one after the other, as nothing would come of the land dispute he was involved in. He filed the fifth petition with the help of an advocate and was amazed when, within four hours, he got a positive response from the police about the dispute.

The petitioners come from near and far.

Many are from Maharashtra, Uttar Pradesh, Bihar and of course, Uttarakhand. There was one even from distant Kerala. Clearly, faith reigns supreme.

There are plenty of legends about the deity and the temple. According to Kumaon Ke Devalay, a book by Jagdishwari Prasad, Golu was the son of a king from Champawat, the ancient capital of Kumaon. Unknown to his father, his wicked stepmothers stealthily spirited him away as they didn’t want him to become the next king. From a young age, the

One petition had a judge praying for elevation to the Supreme Court. When it recently fructified, he went back, removed his petition and hung up a brass bell. child suffered injustice. He put up a successful fight against his tormentors and killed them by tossing them into boiling oil. After he was crowned, he was catapulted as a god who dispensed justice to all.

Another legend is that Golu was a general in the army of Baz Bahadur, the king of Chand between 1638-78, and died displaying exemplary valor during a war. So, a temple was built in his honor and those who visited it got justice.

Many also consider Golu Devta as an incarnation of Shiva, who was born to dispense justice in an unfair world. The presence of Golu Devta also extends beyond the little temple. All around it are pictures of the deity as well as small images for sale. To keep the legend alive, numerous juicy folk stories revolve around Golu Devta.

Those who have benefitted swear by the power of the God of Justice. Others are just amused by the tales. IL

MARK OF GRATITUDE (Facing page) Bells tied by devotees whose wishes were fulfilled; (above left) a petition on stamp paper; the benevolent diety himself

INDIA LEGAL September 30, 2014

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GLOBAL TRENDS/ islamic state / spreading out

UNI

METASTASIS the free run of jehadis in syria and iraq has got the world alarmed. but they have been nurtured by the united states itself and are now striking back at the superpower

By Seema Guha 68

September 30, 2014

T

HE world has suddenly woken up to the dangers of the Islamic State (formerly the Islamic State of Iraq and the Levant), a force once inadvertently funded by the US, its western allies and Arab states like Saudi Arabia, UAE and Qatar. The video tapes of the barbaric beheading of two American journalists, James Foley and Steven Sotloff, brought back memories of a similar incident, when another American journalist, Daniel Pearl of The Wall Street Journal, was beheaded in Pakistan. Then, as now, the world was shocked. The message accompanying the ghastly images was both crude and chilling, warning the US to stop the bombing of IS targets in Iraq. It said, “…as your missiles continue to strike our people, our knife will continue to strike the necks of your people.’’

Yet, much before this, Syrian soldiers battling jehadis in Syria were similarly beheaded. The world did not pay much attention then because those killed were on the wrong side, fighting for President Bashar al-Assad.

CANCEROUS FORCE Very little was known of this group, till they overran the Iraqi army and took control of large swathes of territory. In Syria, where Aleppo and other towns had fallen to the jehadis, no one had bothered much, happy that

those opposed to Damascus were gaining ground in Syria. But today, the IS is like a fast-spreading cancer, which needs to be eliminated before it takes control of more areas. The US has begun air strikes on the IS, but some believe that action should have come faster.

Speaking after Sotloff ’s killing, US President Barak Obama vowed to “degrade and destroy” the IS spread across swathes of Iraq and Syria. He conceded that this could take time, but warned that those who took American lives would not be spared. This is no empty boast. The Americans proved it when they tracked down Osama bin Laden, 10 years after the terror strikes of 9/11. The man responsible for the murder of Chris Stevens, the US envoy to Libya, has also been hunted down and taken prisoner.

Americans are now realizing the potency of the IS, which they unwittingly supported against Damascus. Michael McCaul, chairman of the US House of Representatives Homeland Security Committee, believes that the IS poses “the worst threat to the US, since 9/11.” US Secretary of State John Kerry, writing in The New York Times, called for a “world coalition against terror. What’s needed to confront the nihilistic vision and genocidal agenda is a global coalition, using political, humanitarian, economic, law enforcement and intelligence tools to support military action.’’

GLOBAL THREAT Like the US, Saudi Arabia, which spent billions of dollars to fund jehadi Sunni groups which gathered in northern Syria to oust Assad, is now waking up to the threat of funding these groups. King Abdullah earlier this month dubbed the IS as an “evil force that must be fought with wisdom and speed.”

He believes, like Kerry, that the world must come together to fight this menace. “It would, after a month, arrive in Europe and the month after that, in the US,” he warns.

His point is that it is not just West Asia, but the entire world, that would face the deadly consequences of the IS. But King Abdullah knows very well that the IS is the byproduct of fierce rivalry between Sunni and Shia sects in West Asia.

The Americans created monsters who turned against them. They poured huge amounts of weapons and money to arm the Mujahideen to take on the Russians in Afghanistan.

Promoting favorite jehadi groups for strategic advantage has been the rule among competing powers in the region for several decades. The rivalry was triggered by nervousness among Sunni powers, who feared that the Iranian revolution of 1979 would embolden Shia populations across the region to look to the Ayatollah for guidance and act as fifth columnists (any group of people who undermine a larger group such as a nation from within). Both religious and political leaders were hand-in-glove on both sides to fuel this rivalry. This has now gathered steam and come to haunt all of them.

Initially, the IS was part of the rag-tag army encouraged to fight against Assad. He is an Alawite leader and was the target of Sunni powers and hated by Israel and the US for his close ties with both Iran and

NO MERCY IN THEIR LEXICON (Facing page) Yazidi families fleeing IS brutalities in Sinjar town in Iraq; (above) Iraqi soldiers being herded to their execution ground in Salahaddin Division

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GLOBAL TRENDS/ islamic state / spreading out

GORY END (L-R) Daniel Pearl, who was killed in Pakistan in 2002; and Steven Sotloff and James Foley, American journalists beheaded by the IS

Moscow. The Syrian opposition, which both Sunni Arab countries and the West supported, were a mix of jehadi forces and had elements of the Al-Qaeda. But Abu Bakr alBaghdadi, an Iraqi jehadi leader, fell out with the Al-Qaeda and struck out on his own.

Today, the IS has outstripped the AlQaeda and metamorphosed into the most popular jehadi group, ready to change the political contours of West Asia. Its early success in Syria and Iraq swelled its ranks, and fuelled ambitions to build a modern day caliphate, stretching from the Persian Gulf to the Red Sea, where Sharia law would be scrupulously followed. And so, the change of name from ISIS to the simple Islamic State.

It is ironic that Obama and King Abdullah should now wake up to its dangers, considering they did not pause to think before encouraging the assorted groups to fight Assad. It was quite clear even at that time that the Syrian opposition fighters were a dangerous lot of jehadis.

WRONG POLICIES The Americans have a history of unwittingly creating monsters that finally turn their guns on them. The Cold War rivalry between the US and the former Soviet Union resulted in proxy wars across trouble spots worldwide.

There was massive inflow of arms and billions of dollars spent by them in arming the

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Mujahideen to take on the Russians in Afghanistan.

Foreigners joining the jehad and working to free an Islamic country from Communists were welcomed with open arms. Russia was the enemy and it did not matter who was armed to do the dirty work.

Once the Russians were forced out by the Mujahideen, former president Najibullah’s position weakened considerably, and he was finally dragged hanged for all to see. By this time, the entire region of Pakistan and Afghanistan was awash with arms generously supplied by the US. Though the Taliban was a creature of Pakistan, the situation in Afghanistan helped this force take control of it. Osama bin Laden was a Saudi contractor, who attended all American embassy parties in those heady days and got US patronage. During the first term of US president Bill Clinton, a section of the state department was even keen to get the Taliban recognized in the UN, but negotiations fell through because of the intransigence of this group.

Finally, 9/11 happened and the Taliban was ousted by US forces. Despite 10 years of US and NATO presence, Afghanistan is neither stable or peaceful. Even the recent elections results are being contested, indicating that once the US and NATO forces leave by the end of the year, Afghanistan may see the

UNI

rise of the Taliban, threatening the security and stability of both south and central Asia.

OUTRIGHT LIE Another hotspot the US jumped into was Iraq, where it invaded the country to locate and destroy Saddam Hussain’s “weapons of mass destruction.” This, as was evident, was an outright lie. The idea behind the intervention in Iraq was regime change, which was deftly done. But the result was the destruction of a once-vibrant nation. Ethnic divisions, Sunni-Shia bloodletting and the radicalization of both sects in Iraq have led to this mess. Incidentally, the US backed Saddam during the eight year Iran-Iraq war, starting from September 1980.

Randall Bennett, a US specialist who spent 25 years tracking terror in Pakistan and Afghanistan, terms the IS “specialists in terror.’’ In the early days, most of the jehadi groups he dealt with were still “learning and earning their wings.” Now, the IS is a professional terror outfit. “This means total brutality and the odds against rescuing anyone held by them are reduced,” says Bennett.

As terror outfits get smarter, the danger posed by them globally has increased proportionately. For India, this is bad news. Already, reports of disaffected youth from Maharashtra joining the IS are emerging. The actual numbers are anybody’s guess. The

The US and Saudi Arabia, who have now woken up to the danger of the IS, did not pause to think before encouraging the assorted groups to fight Assad. recent announcement of Ayman al-Zawahiri, the leader of the Al-Qaeda, that more such franchises would be opened in South Asia is disquieting. He went so far as to name Kashmir and Assam, while also mentioning Myanmar, Bangladesh and Sri Lanka.

Whether this is Zawahiri’s bid to steal some of the thunder from IS (which has outstripped it in popularity in recent months) is not known. India is particularly vulnerable.

Two dozen committed jehadists, either of the IS or the Al-Qaeda, can wreck havoc here.

Security expert, Bruce Riedel, writing in The Daily Beast, believes that the Pakistan army and its spy agency, the ISI, are targeting India and getting Al-Qaeda and other terror groups to focus on India, in an effort to hit at Prime Minister Nawaz Sharif, who is keen on improving ties with India. He thinks that Zawahiri is hiding in Pakistan. If the ISI can get the Jaish-e Mohammad, Al-Qaeda and the Lashkar-e-Taiba to work together against India, the Modi government would have a major trouble at hand. IL INDIA LEGAL September 30, 2014

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GLOBAL TRENDS/ islamic state / human rights cases

THE KILLING FIELDS OF IRAQ untold atrocities have been carried out by the islamic state against non-sunnis. how long will the international community take to act against them?

By Shashikumar Velath

T

HE Islamic State (formerly known as the Islamic State of Iraq and the Levant), an armed group, has launched a systematic campaign of ethnic cleansing in northern Iraq, carrying out war crimes, including mass summary killings and abductions, against ethnic and religious minorities.

Following the advance of IS fighters into towns and villages in northern Iraq since June 2014, hundreds of thousands of people belonging to religious and ethnic minorities have been forced to leave their homes.

Among those being targeted in northern Iraq are: Assyrian Christians, Turkmen Shia, Shabak Shia, members of the Yazidi faith, Kakai and Sabean Mandaeans. Many Arabs and Sunni Muslims, known or believed to oppose the IS, have also been targeted in apparent reprisal attacks.

SYSTEMATIC TARGETING On July 18, a mass exodus of Christian families took place in Mosul after the IS gave Photos: UNI

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them an ultimatum to convert, pay a tax, leave or be killed. Since taking control of Mosul on June 10, IS militants have also systematically destroyed and damaged places of worship of non-Sunni Muslim communities, including Shia mosques and shrines.

On August 3, the IS took over Sinjar in north-west Iraq. Since then, thousands of civilians there and its environs, mainly belonging to the Yazidi community, have fled their homes and have been seeking refuge in other areas, especially the Kurdistan region of Iraq and Syria, after having been stranded for days in the mountains with limited food and water. As part of a campaign of ethnic cleansing against religious and ethnic minorities, hundreds, possibly thousands, of Yazidi men and boys have been summarily killed by IS fighters and thousands of women and children have been abducted and are still currently being held.

While many minority groups have been forced to flee, more than a million Sunni Muslims living in Mosul and other IS-controlled areas cannot because of ongoing fighting between the IS fighters and the Iraqi central government and Kurdistan Regional

Government (KRG) forces. Some Sunni Muslims have been killed in air strikes by the Iraqi central government forces.

BRUTAL REGIME Amnesty International has published a new briefing—“Ethnic cleansing on historic scale: the Islamic State’s systematic targeting of minorities in northern Iraq”—detailing a series of hair-raising accounts from survivors of massacres. It describes how dozens of men and boys in Sinjar region were rounded up

HUMANITARIAN CRISIS (Top) Families displaced

by IS violence in Iraq receive aid; (above) A mother and a daughter take stock of the aid they have received; (facing page) Yazidi families fleeing IS violence

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GLOBAL TRENDS/ islamic state / human rights cases

“The Islamic State is carrying out despicable crimes and has transformed rural areas of Sinjar into blood-soaked killing fields in its brutal campaign to obliterate all trace of non-Arabs and non-Sunni Muslims.”

—Donatella Rovera, Amnesty International’s senior crisis response adviser

CLASH OF CIVILIZATIONS (Top) IS fighters stand guard at a checkpoint in the northern Iraq city of Mosul; (above) Displaced Iraqi Christians, who fled from IS militants in Mosul, pray at a school which was turned into a refugee camp in Erbil

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by IS fighters, bundled into pick-up trucks and taken to the village outskirts to be massacred in groups or shot individually.

“The massacres and abductions provide harrowing new evidence that a wave of ethnic cleansing against minorities is sweeping across northern Iraq,” says Donatella Rovera, Amnesty International’s senior crisis response adviser, currently in northern Iraq.

“The Islamic State is carrying out despicable crimes and has transformed rural areas of

Sinjar into blood-soaked killing fields in its brutal campaign to obliterate all trace of non-Arabs and non-Sunni Muslims.” Two of the deadliest incidents took place when IS fighters raided the villages of Qiniyeh on August 3 and Kocho on August 15, killing hundreds of people. Groups of men and boys, including children as young as 12, from both villages were seized by these militants, taken away and shot dead.

“There was no order, they (IS fighters) just filled up vehicles indiscriminately,” one survivor of the massacre in Kocho told Amnesty International.

Said, who narrowly escaped death with his brother, Khaled, was shot five times; three times in his left knee and once in the hip and shoulder. They lost seven brothers in the massacre.

GRUESOME DEATH Another survivor, Salem, who managed to survive because he hid near the massacre site for 12 days, describes the horror of hearing others who had been injured cry out in pain.

“Some could not move and could not save themselves; they lay there in agony, waiting to die. They died a horrible death. I managed

to drag myself away and was saved by a Muslim neighbor; he risked his life to save me; he is more than a brother to me. For 12 days, he brought me food and water every night. I could not walk and had no hope of getting away and it was becoming increasingly dangerous for him to continue to keep me there,� he says.

Salem was later able to escape to the mountains and then on into the areas controlled by the KRG. The mass killings and abductions have succeeded in terrorizing the entire population in northern Iraq, leading thousands to flee in fear.

The fate of most of the Yazidis abducted by the IS remains unknown. Many have been threatened with rape, sexual assault or pressured to convert to Islam. In some cases, entire families have been abducted.

Meanwhile, the US has initiated military action in Iraq against the IS, which includes

Groups of men and boys from Qiniyeh and Kocho villages, including children as young as 12, were seized by these militants, taken away and shot dead. air strikes. Other countries have announced military support to Iraq and KRG for their operations against the IS. It is essential that the international community, the Iraqi government and KRG take assistance and concerted action to meet the needs of displaced persons. Humanitarian aid started arriving after mid-July, and it has reached some in need. But new attacks on civilians continue to be reported, displacing more people every day. IL

AWAY FROM HOME AND HEARTH (Above) Displaced Yazidi people prepare tea for breakfast at Bajed Kadal refugee camp

The writer is Deputy CEO of Amnesty International in India.

INDIA LEGAL September 30, 2014

75

GLOBAL TRENDS/ united states / legal settlements

Amitava Sen

NO COMPENSATION GOOD ENOUGH Why settlements don’t fix wrongful convictions, given the number of years lost

By Nicole Collins Bronzan

I

t may seem to some a happy ending: A Brooklyn man wrongly convicted in a 1994 murder is at last cleared— after serving 16 years in prison—and then reaches a $10 million settlement with the city in the case.

Perhaps, says Senior Editor Joe Sexton, but it’s far from justice. “He will get his millions, but he won’t get his life back, and

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neither will his children or his family,” Sexton says, joining Managing Editor Robin Fields in the Storage Closet Studio to talk about the settlement.

While Collins’s family now has some measure of financial security, and the city has admitted wrongdoing, Sexton says: “There isn’t any real remedy that is committed to.

The remedies that many people think are required really can only be brought about by legislation that would, you know, create a better, more effective way for making sure that prosecutors, in doing their vital jobs for society, don’t abuse their authority.”

Collins’s case, which was resolved more quickly than many wrongful convictions, illuminates so many of the problems that plague the system, Sexton says. He fought for years just to get the information to make his case, and many of the judges he appealed to seemed disinclined to even hear him out.

Indeed, Fields says, there have been many cases in the news recently dating back to the tenure of longtime Brooklyn District Attorney Charles Hynes’s tenure—and in particular, one of his top prosecutors, Michael Vecchione. Vecchione, who handled Collins’s case, has been accused of a variety of misconduct in the case, including suborning perjury and lying about it for years. Those accusations, which ProPublica has investigated as part of its Out of Order series, have resulted in no sanctions.

“At this point, Hynes has been voted out, which was an unusual outcome in and of itself, and Mr Vecchione has retired,” Fields, says. “Is that enough to essentially clean up the problems in Brooklyn, or in the system at large?” And if not, is there a way to quantify the amount of misconduct perpetrated by prosecutors?

Sadly, Sexton says, ProPublica’s reporting has revealed the answer to both questions to be “a resounding ‘no.’ ” “Part of it is that so much of what prosecutors do in today’s justice system goes on outside of the courtroom,” he says, including plea bargains and prosecutors’ investigations themselves. As long as that’s the case, Sexton says, there will be work to do. IL

Courtesy: ProPublica

INTERNATIONAL BRIEFS

Immigrants kick off security frenzy THE surge in illegal immigrants has sparked off a frenzy among multiple law enforcement agencies manning the city of Rio Grande in Texas. Once the lone territory of the Border Patrol personnel, today, the place is teeming with state troopers, national guardsmen and civilian militia members, with limited communication among them. The Border Patrol wants control of law and order back in its hands. Even locals aren’t happy with the increased security. Texas reportedly spends $1.3 million a week on state troopers and about $12 million a month on the guardsmen.

Israel’s plastic bag law A law designed to reduce the use of plastic bags in Israel recently saw Economics Minister Naftali Bennett and Environment Minister Amir Peretz reaching a compromise on how much consumers have to pay for plastic grocery bags at supermarkets. While the bill concerning its usage originally called for payment of 60 agorot for each bag purchased, the compromise brings down the cost significantly. Now, consumers will have to pay 30 agorot for the first year and 10 agorot within four years of the bill’s passage.

Wedding Woes for Muslims MUSLIMS in the UK are increasingly entering into marriages which are legally not recognized by British law.

The reason for this is that these couples conduct their Islamic wedding, nikah, without a civil ceremony. This is required for the marriage to be recognized under the law.

A civil ceremony basically means registering the marriage, which backs up as an essential identity document. This often lands young Muslim girls in trouble. By not registering, a lot of men are free to commit polygamy. To add to their woes, only a few mosques in the UK have registered themselves.

Arrested over lack of documentation THE Army Intelligence of Lebanon has arrested 10 Syrian refugees for not possessing identification papers during a raid in northern Lebanon’s Zghorta area.

The raid was part of the country’s new security measure aimed at tightening control on refugees by legalizing their presence and keeping track of their population and whereabouts. The arrested refugees did not have legal residence papers and identification cards. Lebanon hosts the largest number of refugees, with about 1.3 million from Syria alone.

No bar on sports betting in New Jersey NEW Jersey Governor Chris Christie has issued a directive making sports betting legal in casinos and race tracks across the state. The directive informed authorities that casinos and tracks would not be held liable under state law if they operate sports pools, as long as wagering does not occur during events taking place in New Jersey or involve any New Jersey team. Christie’s move comes after three major Atlantic City casinos closed down this year, while two more announced that they were losing out on business. Sports wagering is a key source of revenue for the people of New Jersey. Previously sports betting was allowed under the state’s Sports Betting Wagering Act that was passed by the legislature in 2012.

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77

CONSUMER WATCH

How can buyers enforce their rights and seek remedial measures Understanding immunity CAN foreign entities escape prosecution under the garb of sovereign immunity or are there exceptions to the case?

Ganesh Narain Saboo had booked a consignment of Reactive Dyes with Ethiopian Airlines to be delivered on September 30, 1992. However, the consignment delivery got delayed which deteriorated the goods. Ganesh’s complaint to the Maharashtra State Consumer Dispute Redressal Commission was subsequently rejected. The National Consumer Disputes Redressal Commission, however, asked the state commission to decide the case afresh.

In their appeal to the Supreme Court (SC), the airline defended its action, saying it can’t be prosecuted since it is a foreign entity and entitled to sovereign immunity. The SC held that Ethiopian Airlines was not entitled to sovereign immunity with respect to commercial transactions and directed the state commission to dispose off the dispute accordingly.

Illustrations: Udayshankar

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Insurance claims INSURANCE agents often pester people to take up new policies for meeting their sales targets. And some of these policies do not even meet the stipulated terms and conditions.

Kamboj Ultra Sound & Diagnostic had insured their diagnostic equipment with the Electric Equipment Insurance (EEI) policy of New India Assurance Company Limited. The terms of the policy clearly stated that the coverage of the claim was based on replacement basis. When their scanner stopped working, Kamboj lodged a claim under the policy which got rejected on the grounds that the scanning tube had undergone 100 percent depreciation and its value was nil.

When the matter reached the Delhi State Consumer Disputes Redressal Commission, the insurance company contested it, saying that since the tube had already completed 42,470 exposures at the time of taking the policy, the claim was not valid. It said claims could be made on tubes that had completed less than 40,000 exposures. The Delhi forum passed its judgment in favor of Kamboj. The insurance company then approached the National Consumer Disputes Redressal Commission. The commission observed that the insurance company was aware of the extent of the tube usage at the time of issuing the policy, yet they chose to cover it. Therefore, the insurance company was directed to reimburse the replacement cost of the tube along with 12 percent interest and `50,000 as compensation to Kamboj.

Medical negligence IT is essential to employ only qualified and trained doctors in hospitals. Otherwise, any medical negligence can hold both the hospital and the doctor liable, just as Tura Christian Hospital was.

The Meghalaya State Consumer Dispute Redressal Commission observed that Chandrika Sarkar was administered anesthesia at the time of a caesarean operation by an unqualified pediatrician.

This amounted to professional misconduct. The overdose of anesthesia resulted in her death after the baby was delivered. Reprimanding the hospital for medical negligence, the commission directed it to pay `8 lakh as compensation, along with six percent interest, for the mental agony suffered by the husband and depriving a child of his mother’s love.

Red tape rescue THERE is good news for all the consumers out there. The Consumer Affairs Department has proposed amendments in the Consumer Protection Act to allow consumers to file complaints against entities, such as builders, companies and service providers with the consumer forums in the district they reside. The proposal elaborates that complaints have to be admitted within 24 days in the district forums. At present, a consumer can file a case in district forums where the defaulting entity has its main or branch office. This move will reduce inconvenience and harassment of consumers to a large extent.

RTI grievances not consumer complaints THE Additional Mumbai Suburban District Consumer Disputes Redressal Forum recently held that when there is an alternative remedy available, a consumer complaint is not maintainable. Manohar Desai had complained to the consumer forum after he failed to receive a reply to a query under the Right to Information Act (RTI). The information pertained to the Municipal Corporation of Greater Mumbai’s failure to issue a copy of conveyance deed to Desai even after he had paid for it. The RTI Act clearly says that the applicant has the right of appeal available to him; therefore, a complaint under a consumer forum does not lie.

Hooligan banks USE of musclemen to get even with people is a routine sequence in films, but when such incidents happen in real life, it is a harrowing experience for people.

Balwinder Singh had filed a consumer complaint against HDFC Bank and its recovery agent for using goons to forcibly re-possess his hypothecated vehicle and selling it to a third party, which entailed physical harassment and mental agony.

The National Consumer Disputes Redressal Forum observed that the statement about the customer voluntarily handing over possession of the vehicle was untrue and that the bank failed to serve a prior notice regarding the possession and its sale.

It upheld the previous judgment of the district and state consumer forum, which ordered HDFC Bank to pay a compensation of `4 lakh to the complainant.

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79

IS THAT LEGAL?

Illustrations: Aruna

Consumer’s fault Is it mandatory to fill the complete questionnaire at the time of purchasing an insurance policy?

Yes it is. Giving a wrong answer will be a suppression of facts by the consumer and he stands to lose the insurance claim. This was held on January 13, 2014, by the National Consumer Disputes Redressal Commission New Delhi, in the matter of Shnyni Valsan

Not a quid pro quo Is a litigant a “consumer” under the Consumer Protection Act if he has filed a suit or any other proceeding in a court after payment of court fee?

No. A court exercises sovereign judicial power of the state while dealing with a case and it is not rendering a “service” in pursuance of a contract between the litigant and the court. Adjudication of cases and dispensation of justice is done by the court not as a quid pro quo for the court fee. Court fees paid by the litigants go to the consolidated fund of the state and hence, it cannot be said that the payment of court fee by way of “consideration” for the “hiring” or “availing of ” a service from the

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Pombally vs State Bank of India and Anr. At the time of purchasing the policy it was asked whether the insured had been treated for, or told that he was suffering from diabetes, and whether he had been treated for, or told that he had any liver disease. All the questions were answered in the negative. Later, he died due to “hepatic encephalopathy, hepatorenal syndrome, spontaneous bacterial peritonitis with alcoholic liver disease”. The insurance company rejected the claim on the ground of suppression of facts.

The family of the deceased filed a complaint on grounds of deficiency of services.

The forum said that “having suppressed the said facts while answering the questionnaire, we are of the opinion that the insurance company was within its rights to repudiate the claim of the complainant”.

The court further observed that these were “material facts” and were only in the knowledge of the insured. Therefore, he was obliged to disclose the facts correctly in the questionnaire issued to him for the purpose of obtaining the policy in question. In view of the matter, there was no question of any deficiency of service on their part.

Cost of drugs

court. Therefore, a litigant is not a consumer under the Consumer Protection Act. This was held by the National Consumer Disputes Redressal Commission, New Delhi, in the matter of Akhil Bhartiya Grahak Panchayat vs The State of Gujarat.

Can a company sell medicines below the MRP or is it an unfair trade practice?

This question arose in the matter of Novartis India Limited vs J Anto and Anr (decided on August 4, 2014).

It was held that “by no stretch of imagination, it is said to be an unfair trade practice. There lies no impediment in giving a medicine below the MRP. There also lies no rub if the company or chemist gives the medicine free of cost.

Nobody can charge more than the MRP, but it can be sold at a lower rate than the MRP.”

W

1. What’s “Davy Jones’s locker”?

A: Jail B: Sea bottom C: Big treasure D: skeleton 2. Ashok calls his wife names but WON’T call her ... .

A: headquarters B: slavedriver C: apron D: bimbette 3. Plural of “mongoose”.

A: Mongeese B: Mongoose C: Mongice D: Mongooses 4. Which spelling is correct?

A: Entrepreneur B: Enterpreneur C: Entreprenuer D: Enterprenuer 5. When Ram says “I’m easy”, he means ... .

A: I am free B: It’s easy for me C: I don’t mind D: I am a bachelor 6. What’s the meaning of “pick-me-up”?

A: Reviving drink B: Toddler C: Fork D: Fatso 7. You are “taken to the cleaners”. It means you’ve lost ... .

A: clothes B: money

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

By Mahesh Trivedi

C: reputation D: temper 8. There’s no time like the ... .

A: present B: youth C: picnic D: love 9. A Greek gift is ... .

A: very expensive B: one harming the recipient C: very cheap D: an empty box 10. Luv is quantitatively challenged. He is ... .

A: thin B: obese C: poor D: miserly 11. Euphemism for bribe.

A: Groceries B: Number nine C: Negative cash D: Sugar 12. French term “Nouveau riche” means… .

A: Newly-rich person B: riches-to-rags story C: New neighbor D: Never seen 13. Our peon Ravi knows how to use ‘OPM’.

A: Office people’s money B: Other people’s money C: Office printing machine D: Overtime per minute

14. A small plane.

A: Four-by-four B: Rattletrap C: Microlight D: T-bird 15. Interjection “Ho-hum” signals ... .

A: surprise B: boredom C: anger D: pain 16. The meaning of “languid”.

A: listless B: colorless C: odorless D: hopeless 17. Posit is a ... .

A: noun B: adjective C: verb D: slang 18. Nyctophobia is fear of ... .

A. insects B. darkness C. relatives D. noise 19. Obsession with power is … .

A: Megalomania B: Monomania C: Egomania D: Plutomania 20. It’s “as tough as ... .”

A: rock B: leather C: ice D: brass

ANSWERS

1. Sea bottom 2. bimbette 3. Mongooses 4. Entrepreneur 5. I don’t mind 6. Reviving drink 7. money 8. present 9. one harming recipient 10. obese 11. Sugar 12. Newly-rich person 13. Other people’s money 14. Microlight 15. boredom 16. listless 17. verb 18. darkness 19. Megalomania 20. leather

Y L D R WO ISE

SCORES

0 to 7 correct—You need to do this more often.

8 to 12 correct—Good, get the scrabble board out.

Above 12—Bravo!

Keep it up! textdoctor2@gmail.com

INDIA LEGAL September 30, 2014

81

PEOPLE / kashmir’s tragedy

Photos: UNI

BRIDGING THE GAP Jammu and Kashmir Chief Minister Omar Abdullah surveys a flood ravaged area in the state

THE CHOPPER AND CHOPPY WATERS Indian Air Force MI-17 helicopter ferries rescued people from Hamirpur Kona in Rajouri district to relief camps.

SAILING IN THE SAME BOAT Rescue teams evacuates flood victims and their livestock in Pantha Chowk.

BALANCING ACT Police personnel rescues flood victims at Pantha Chowk on the outskirts of Srinagar.

UNITED IN TRAGEDY Flood- affected people share a meal at Sidhra area about 20 Km from Jammu city.

.