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August 15, 2014

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EVERY FORTNIGHT VIEWS ON NEWS WILL BRING YOU TELL-ALL NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE MINDS IN THE NATION Views On News (VON) is India’s premier fortnightly magazine that covers the wide spectrum of modern communication loosely known as “the media”. Its racy, news and analysis oriented story-telling encompasses current global and Indian developments, trends, future projections encompassing policy and business drifts, the latest from inside the print and electronic newsrooms, the exciting developments in ever-expanding digital space, trending matters in the social media, advertising, entertainment and books. INTERVIEW

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LETTER FROM THE EDITOR

INDERJIT BADHWAR

YOUR LORDSHIP, SIR, AT STAKE IS DIGNITY OF THE COURT

NE of the most fascinating—and enlightening—debates on judicial reform, currently one of the hottest topics on the public’s griddle, happened in the Rajya Sabha in midJuly. The chief protagonist was my friend and former associate, HK Dua, an eminent former editor and now a nominated member of the upper house of India’s parliament. It went largely unnoticed, as most matters of import do, because the press, as usual, was out chasing some Bollywood item, and Arnab Goswami was busy stalking some soft target for his daily McCarthyite witchhunt. The discussion was on a bill introduced by Dua dealing with what he perfectly described as a matter of high importance of public policy with a bearing on the credibility and independence of the highest court of the land. He had proposed a constitutional amendment to give teeth to Article 124, clause 7 of the Indian constitution. It is a proscription, reading: “No person who has held office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.” It is unambiguous. But notwithstanding its clarity, the injunction has been violated with impunity. Out of a sense of propriety, Dua chose to withhold the names of the violators. “It is a well settled principle of law that anything which is forbidden to be done directly cannot be done indirectly,” he observed. “(But) the judges of the Supreme Court and some of the former chief justices are doing what is forbidden.” He proposed to remedy the infraction by amending clause 7 to read: “No person who has held office as a judge of the Supreme Court shall plead or act or express written opinion or engage in arbitration in any court or before any authority within the territory of India and outside India provided that he may do so upon a request made by the President or

the Prime Minister of India or the Governor or the Chief Minister of a State in a matter of national importance.” He sought to strike a balance. There are often compelling situations, as Dua noted, in which the services of a retired Supreme Court judge is imperative, as in an inquiry commission, or an appointment to the Human Rights Commission. Those kinds of assignments, Dua avers, “are valid, but doing private chamber practice or arbitrations is forbidden and should not be taken up by the judges.” In 2004, former Attorney General Soli Sorabjee “expressed grave concern at a former chief justice of India filing affidavits on behalf of private litigants in a US court…. There are several other instances impinging upon the credibility of the institution on which lies the greatest responsibility for preserving the Constitution.” In 2005, former Chief Justice JS Verma wrote to the prime minister: “There is public disquiet voiced often in private about some post-retirement engagements of the Supreme Court judges and Chief Justices. Chamber practice in the form of written opinions, under signature, given for use in any court, tribunal or authority and paid arbitration work done while heading a commission, availing the benefits and perquisites or salary of sitting judges are some of the disturbing trends. It is a serious issue relating to judicial accountability requiring clarification without further delay. It is time that Article 124(7) is made more specific to remove any ambiguities or grey areas amenable to different individual interpretations in respect of prohibited activities after retirement from the Supreme Court.” Dua recounts how, after his retirement, Chief Justice Verma never gave an opinion or accepted any arbitration assignment. Before the 1980s, Justice MN Venkatachaliah, and several other distinguished INDIA LEGAL August 15, 2014

LETTER FROM THE EDITOR

Illustrations: Udayshankar

judges on no account gave private opinions. Today, the practice is de rigeur. Why judges engage in this forbidden practice is understandable. Like any other retired professional, they need money. The obvious conflicts-of-interest involved—the reason the constitution forbade this activity—is equally obvious. The practical via media is to compensate the judges for this post-retirement loss of income. One way, as Dua suggests, is to introduce legislation to enhance their retirement age from 65 to 70. Let them spend more time on the bench rather than outside it in dispensing justice. The subject of judicial reforms embraces a whole gamut of issues. But starting with tackling clause 7, albeit a small step, will signal the government’s readiness to engage with the people on a subject they find extremely irksome. Public disillusionment with

August 15, 2014

the functioning of the judiciary is soaring. The performance of the lower courts is abysmal. Says Dua: “The High Courts, during the last few years, are coming up for adverse comments. Arrears are piling up by the day. Justice is being delayed and denied. The quality of justice is suffering and the redress is not available. The last hope for the people is the kachehri—the Supreme Court of India.” Dua’s bill, however, chose to focus on one aspect of the Supreme Court’s functioning—not on the wider reforms such as appointments of judges, judicial accountability and the functioning of the collegium system. I will quote Dua extensively here: “Why are they ignoring it? Once upon a time, they were very eminent lawyers who became High Court judges and then came to the Supreme Court…. The highest honor, which the country can give to a judge, is to make him a member of the Supreme Court bench. Should that

kind of dignified status in the country’s constitutional scheme of things be allowed to go down in public esteem by the judges doing legal practice for earning money, the kind of money which, apparently, they would not get while serving on the Bench? By choosing to dole out opinions in arbitration cases, where both the companies have to give the fee, their incomes go up and they earn much more than what they would have got through their salaries or retirement benefits while in service. Not only is the spirit of clause 7 of Article 124 being violated, but essentially what is forbidden by law is amply being practiced openly. “So, we give them five years extra, and the hard work they are doing in dispensing justice in their chambers after retirement should be done for the country, and the Supreme Court itself. The Supreme Court will continue to have the benefit of their background, prestige and experience in the dispensation of justice. Let them have five years more. If the Law minister brings forward a bill for this purpose—I have not included the superannuation clause in my amendment—I am sure, this House and the Parliament, the other House also, will support it. That will be a much better way. Also, their post-retirement perks can be improved so that there should not be any temptation to go in for any extracurricular practice. Their families should not suffer either because of the loss of income.”

couple of years ago, Dua had moved an amendment to prevent the misuse of resignation sent to the president by a high court judge as a device to escape his removal by a motion in the upper house. The particular case involved the unanimous impeachment of Judge Soumitra Sen. After the upper house’s unanimous vote went to the Lok Sabha, the judge preemptively aborted his removal by sending in his resignation. The entire process of a judge’s removal, as envisaged in the constitution, was “frustrated by a slip of paper called ‘resignation’.” Under the constitution the president does not have to formally accept the resignation. An enraged Dua moved the amendment, prescribing that so long as a judge is sought to be removed, and removal proceedings are on in parliament, including any inquiry instituted by parliament, his resignation should be formally approved by the president before he is relieved. “No President will let an errant Judge run away from the process of justice.” Current law minister Ravi Shankar Prasad, who was then in the opposition, applauded Dua’s initia-

tive, promising to support it. And in the recent debate on clause 7, Prasad welcomed Dua’s concerns and suggestions but promised to include them in a wider framework of sweeping judicial reforms, including accountability, judges’ appointments, and filling of vacancies after extensive consultations with all stakeholders within and outside the judiciary. Because Dua had reason to believe in Prasad’s credibility, he has for the time being withdrawn his latest amendment—not because he does not believe in it or the principles it enshrines but because he agrees that problem-solving should be within a larger process in which the judiciary does not feel it is being subjected to legislative diktats without consultation. There are many ways to skin a legislative cat: one of them is the method of proposing meaningful constitutional amendments, which will catalyze the government as a whole to act on the strengths of its merits and extent of its support.

editor@indialegalonline.com INDIA LEGAL August 15, 2014

AUGUST 15, 2014 VOLUME. VII

ISSUE. 23

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

Fearful of the law enforcers

For the first time a police report admits that Muslims do not trust the force because it has repeatedly failed them. NEERAJ MAHAJAN delves into the psyche of the country’s largest minority community

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When the police builds bridges A police station’s attempt at involving the Muslim community through a library and coaching center in Delhi’s Jamia Nagar. A report by SHADAB NAZMI

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August 15, 2014

Look within for Muslim angst The reports of Indians queuing up to join ISIL or Shias in Iraq are exaggerated. What the Indian establishment needs to worry about is the community’s concerns at home, writes SEEMA GUHA

SUPREME COURT

What’s life without controversies? Why did Markandey Katju question the appointment of a judge, who is no more, at this juncture? RAMESH MENON probes the real motive

24 11

THE NATION

The mark of Modi

He has done it in Gujarat. Now, Modi is leaving an imprint of his way of working at the center, centralizing power and making ministerial berths largely irrelevant, writes NEERAJ MAHAJAN

PROBE

Amway or scamway

ALSO

The company which sold a dream of good living and easy money to millions is now facing the heat for its dubious financial model. SHANTANU GUHA RAY reports MY SPACE

No succor in sight

JAVED AMEER recounts the horrors of Somalian women, who are trapped in unhappy marriages, beaten up mercilessly and have no recourse to law

A follow-up on the Badaun rape-murder case..........46 The risks of designer drugs from India............49 A Chennai judge’s wish for “an eye for an eye.....56 Of the club dress code and dhoti........................58

POLITICS

A generational shift

Swimming pools’ criminal wastage of ground water..................60 A movie that teaches you the art of living in the face of death .................80

VISHWAS KUMAR analyzes how dissimilar are the equations between the Modi-Amit Shah combine, as compared to the Vajpayee-Advani team of NDA-I

The empire strikes back

Following the IB report casting doubts on the funding and activities of NGOs, the Modi government comes down heavily on them. SHANTANU GUHA RAY writes about the bleak future that NGOs face

REGULARS

RIGHTS

Letter from the Editor …............ .........................................................3 Letters…..............................................................................................8 Quote-Unquote ...............… ................................................................9 Ringside ..........................… ..............................................................10 Supreme Court..................................................................................14 Consumer Corner..............................................................................75 Briefs .................................................................................................77 Is That Legal?....................................................................................78 Wordly-wise .......................................................................................81 People ...............................................................................................82 Cover Design: ANTHONY LAWRENCE Cover Photograph: ANIL SHAKYA INDIA LEGAL August 15,

LETTERS On the right track I congratulate India Legal on an excellent issue (July 31, 2014). I felt the legal side of the magazine was giving way to the political side but it’s back to normal. The mix of stories was great and I was enriched. However, the feature on National Herald (Bizarre Maths) did not gladden my heart. A one-sided polemic can be positioned as an external column but if you run an article, discretion and balance may be a superior approach. Ranjeev C Dubey, Gurgaon

Clarification With reference to the story, When Green Turns Red Rag, July 15, 2014, Nature Conservation Foundation (NCF) did not prepare any wildlife management plan in the Parsa East and Kante-Basan coal blocks for the miners, nor were we approached in this connection. TR Shankar Raman, Senior Scientist, NCF NCF’s name was mentioned, along with three other institutions, in the National Green Tribunal order on the coal blocks. —Editor

The art of packaging Even though any budget story is a bedspread of figures, data and other statistical stuff, I was impressed by the way India Legal treated the story, Post-budget ruminations, in the form of a diary. It was an interesting read. Anirban Sen, Delhi

Article of faith The editorial, Article 370 and All That, should be circulated in the social media. It should clear half-truths and preconceived ideas about what Article 370 is all about. The editor hits the nail by saying that scrapping the article tantamounts to accepting that Jammu and Kashmir is no longer a part of India. Raj Shekhar, Delhi

Modi deconstructed Going through the excerpts of the book, Modi Demystified, makes me wonder about the content of the book. Modi is a lesson for those who are yet to learn the art of selling lies and wrong facts. Very few people in the country really know about the inside-out of a politician who remote controlled the Gujarat riots in 2002. Arun Swaroop, Delhi

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August 15, 2014

The figures given in the graphic on annual FDI inflows in the story, Post-budget ruminations, (July 31, 2014), were erroneously confused with monthly inflows. The error is regretted. —Editor

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

“Muslims will be treated as common citizens—nothing more, nothing less. And they must learn to respect Hindu sentiments. If they keep opposing Hindus, how long can they survive?” —Senior RSS leader Ashok Singhal on how Muslims should behave during the Modi regime

“I don’t think women can have it all. The biological clock and the career clock are in total conflict with each other.” —PepsiCo CEO Indra Nooyi on problems facing career women

“This is the beginning of our journey, not the end. Abhi hum jitna kar sakte the, humne utna kiya hai. And, all the decisions are not taken on day one.” —Finance Minister Arun Jaitley on his first budget

“I think all these wickets are not for me. It is for the captain. He told me ‘you are tall enough, you have to bowl the bouncer’, that’s what I did and it worked for me.” —Ishant Sharma, on his match-winning 7-74 at the Lord’s Test against England

“We are the single largest party. We have got a pre-poll alliance. Hence, we are entitled to leader of opposition’s post.” —Sonia Gandhi, on why Congress is entitled to the post in Lok Sabha

“If we are going to make a `200 crore statue, I think, it should be one of a giant, sexy woman so men can stare at her instead of at us.” —Actor Kalki Koechlin, on the budget allocation for Sardar Patel’s statue on an island in River Narmada in Gujarat

“I was told to wine and dine the general practitioners… as everyone got patients referred to them through the GP system. That informal system has been transformed into the cut system with the corporatization of health.” —Dr Samiran Nundy, Sir Ganga Ram Hospital, on corruption in the medical profession INDIA LEGAL August 15, 2014

Aruna

VERDICT “Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonor and shame. No matter how young you are or how old you have got. Not for kudos and not for cash: your picture in the paper nor money in the back either. Just refuse to bear them.”

— William Faulkner, Intruder in the Dust

August 15, 2014

CONTROVERSY/ judicial appointments

the real story behind justice markandey katju’s raking up an old case questioning the promotion and extension of a judge By Ramesh Menon

HEADLINE HUNTER

ONTROVERSY is virtually a shadow of Justice Markandey Katju, chairman of the Press Council of India (PCI). Before one tapers off, another takes root. The latest missive was fired through his blog on July 20. Katju claimed that Justice Ashok Kumar was given extension and promotion in the Madras High Court by the UPA government because of pressure from a Tamil Nadu ally. The reference was to the DMK, which armtwisted the then Dr Manmohan Singh-led government to extend his tenure as an additional judge and later confirm him as a permanent judge. Three chief justices of India, he said, had given in to the UPA government’s pressure, despite a an adverse Intelligence Bureau report against Kumar. Obviously, it raised a hornet’s nest in parliament, with the BJP MPs screaming that the independence of the judiciary had been smothered by the executive during the previous government. It made for good headlines. Katju, due to retire as chairman of PCI in October 4 this year, was back in the news. Though the previous government had appointed him, the present one was backing him. Sources say that Katju’s sudden appointment as the PCI chairman raised eyebrows on October 5, 2011 as just one day before Justice VS Sirpurkar was officially informed that he would be taking over that post. But because of the intervention of Manmohan Singh and UPA chairperson, Sonia Gandhi, Katju’s name was

CONTROVERSY/ judicial appointments

TRIAL AFTER DEATH? The late Justice Ashok Kumar is at the center of a new controversy

announced. Sirpurkar was surprised to see Katju’s name in the newspapers. Investigations by India Legal revealed that there was more to Kumar’s story than what Katju made it out to be. Kumar was an additional district judge in Tamil Nadu from 1988 to 2002. He had an excellent track record and all his annual confidential reports were outstanding. In his career, Kumar believed that judicial pronouncements should be severe when it came to protecting rights in a civil society. “Time may change, people may change, but law should not change.” But things changed dramatically when the then J Jayalalithaa-led AIADMK government arrested the 78-year-old DMK leader M Karunanidhi late in the night of June 30, 2001, virtually dragging out an ailing and screaming former chief minister. He was produced before Kumar at 4.30 am who sent him to judicial custody but told the police to first get him medically examined, as he was sick. But the police did not heed the direction. Kumar later reprimanded the police with strong remarks. After this, allegations were hurled against him, saying he had acquaintances with the DMK.

In the mid-90s, Katju did raise objections against Kumar continuing as high court judge, but never in writing, despite request from the then Chief Justice RC Lahoti. Another incident that gains significance, with the Katju controversy stalling even parliament proceedings, dates back to the midnineties when Kumar was the principal district judge in Dindigul. AIADMK henchmen had suddenly occupied the Kodaikanal International School in the middle of the night, evicting all the resident students from the hostel. The judge restored the school back to the authorities, angering the AIADMK government which then transferred him to Thiruvannamalai. Sources pointed out that a vehicle belonging to the AIADMK-run Jaya TV had once rammed into Kumar’s car. After that he was given police protection. George Fernandes, the then defense minister, had said that Kumar’s life was in danger.

August 15, 2014

A probe by India Legal showed that Katju, as chief justice of the Madras High Court from November 2004 to October 2005, had raised objections against Kumar continuing as a high court judge, but all of them were oral in nature. In fact, when the then Chief Justice RC Lahoti asked for it in writing, it was not given. However, Katju insists he wrote a letter to Lahoti. But according to Lahoti, he instituted an inquiry against Kumar on the basis of an anonymous complaint but all he got was oral information that suggested that some DMK politicians may be known to Kumar. Interestingly, according to intelligence reports, there were numerous calls from the chief minister of Tamil Nadu to the chief justice of the Madras High Court (Katju) both before and after Lahoti was informed about the complaints against Kumar. When the office of the chief justice of India called Katju and requested him to send a written complaint so that action against Kumar may be taken, Katju said that he would not give any written communication, as the judges and advocates in Chennai would not allow him to continue there and would make his life miserable. In the absence of a written complaint and a formal inquiry report, it was not legally possible to take action, said sources in the Supreme Court. When Katju was transferred from Chennai to Delhi as a Supreme Court judge, he was again requested to send a written complaint on his experiences with Kumar but Katju rejected it, saying that he was no more the chief justice of the Madras High Court. Therefore, the law ministry asked the chief justice of India to give reasons why Kumar’s name was not confirmed as a regular judge of the Madras High Court. It was only then that he was confirmed as a permanent judge. Former Chief Justice of India, KG Balakrishnan wondered why Katju was raising the issue after so many years, and that too when the concerned judge was no more. He said the judge was given extension strictly following the laid-down procedure and it was not done under pressure from any quarters. Both the BJP and AIADMK have asked the former prime minister Singh to explain if he had pressured the collegium in June 2005 to confer permanent status on the judge Katju is

referring to. Singh refused to comment on the controversy, only saying the issue had been clarified by former law minister, HR Bhardwaj who had said that no undue favours were given. When Katju was a Supreme Court judge, there were 689 complaints against him during the tenures of Chief Justices Balakrishnan and SH Kapadia. Many of them related to the fact that he was favoring a senior advocate from Allahabad. This was one of the reasons why that advocate could not become the Supreme Court judge as it was rejected by the collegium because of the allegations. The complaints included the ones pertaining to the fact that Katju used to meet politicians at his residence, like former union minister Salim Sherwani. Katju has been embroiled in numerous controversies before. “The law does not permit us to do it, but otherwise we would prefer to hang the corrupt,” he had said when dealing with a corruption case in May 2007. In 2009, Katju in a judgment said that Muslim students could not insist on sporting beards, as it would lead to Talibanization of the country. This drew a lot of flak from Muslim organizations and religious leaders. The case pertained to Mohammad Saleem, a Xth standard student of Nirmala Convent High School in Vidisha, Madhya Pradesh, who was removed as he refused to shave his beard. Katju told the petitioner, BA Khan, who appeared for the student, that Muslims had no fundamental right or religious duty to sport a beard. As it became a hot issue, a delegation comprising Maulana Muhammad Wali Rahmani, secretary, All India Muslim Personal Law Board; Mufti Arshad, an Islamic scholar; Mahesh Bhatt, filmmaker; and Mahmood Pracha, an advocate met the then prime minister Singh to protest against Katju’s remarks. Singh was reportedly upset and surprised that something like this had been said when India was a secular country. Katju threw protocol to the winds when he entertained the petitioners and complainants at his residence on 4, Akbar Road, New Delhi, before he apologized for what he had said and also sent it to another bench to review the judgment which was then reversed.

UNI

Articles 124(2) and 217(1) ensure that the executive, through the president, has primacy in the appointment of judges. In 1993, a constitution bench of the Supreme Court held that the chief justice of India would have primacy in appointments. In 1998, through another constitution bench judgment, the apex court cut the executive out of the picture by putting in place a CJI-headed collegium system. As the collegium system for appointment of judges is now clouded with numerous controversies, the government wants to amend the above two articles. Justice AP Shah, who heads the Law Commission as chairman, said that the collegium’s conduct has been opaque and appointments to the higher judiciary lacked transparency while talking to a television channel. Reacting to Katju’s remarks, he wondered about its timing. “The collegium system has completely failed, judges are appointed on unknown criteria. It has failed as favorites get appointed and the rest are left out,” Shah pointed out. Clearly, we still have not heard the end of the controversy. IL

VESTED INTEREST Markandey Katju alleged that the UPA government favoured Justice Kumar under pressure from its Tamil Nadu ally DMK

INDIA LEGAL August 15, 2014

SUPREME COURT

Right to die

an a terminally-ill person, with no chances of survival, will his own death in India? Can his wish that he be taken off life support systems for ending life be granted legally? The judiciary has been evading a verdict on active and passive euthanasia, considering wide ramifications. However, a five-judge constitution bench, taking up a PIL filed by NGO Common Cause, referred the matter to states and union territories for suggestions within eight weeks and asked for a nationwide debate on euthanasia. The PIL had argued that the right to die with honor was a fundamental right and there should be a legal provision for a person to make a will that if and when he passes into a vegetative state, with no chance of recovery, doctors must facilitate a dignified death. It also pointed out that nothing had come out in decades through debates on the issue, and the legislature was yet to take any action. It appealed to the judiciary for a clear-cut judgment on euthanasia.

Lodha’s lament

enseless filing of appeals and petitions in the Supreme Court has not only led to more work for judges but scaled down its ambit from a court that should explain laws, deal with constitutional matters and adjudicate on public-interest issues to merely a court of appeal. This was the plaintive cry from none other than Chief Justice RM Lodha, who lamented that there seemed to be no way out to lessen the amount of work the court was saddled with. He sought advice from Attorney General Mukul Rohatgi, Solicitor General Ranjit Kumar, senior advocate KK Venugopal and other senior judges to deal with the flood of petitions. Lodha said the problem lay in the apex court allowing excessive appeals to come up before it, and this overzealous approach of offer-

August 15, 2014

ing justice to all was costing it dear. He also pointed out that the number of cases handled by India’s apex court in a day far exceeded the yearly figures of most of the highest courts in other countries.

Pinky Anand becomes ASG

inky Anand recently took over as additional solicitor general in the apex court. The senior advocate is the second woman to get the post after Indira Jaising, who was appointed in 2009. A graduate of Harvard Law School, Anand is an authority on constitutional law. With a career spanning 25 years, she had served as additional advocate general, Uttarakhand.

For fair justice

n a significant order that will enhance people’s faith in the judiciary, a three-judge bench, headed by Chief Justice RM Lodha, served a notice to a judge who already had served in the apex court. Taking heed to a plea by a law intern— who had accused Justice Swatanter Kumar of sexually harassing her in May 2011—that the hearing of the defamation case against her be shifted from the Delhi High Court, the bench asked Kumar, now chairman of the National Green Tribunal, to respond within four weeks. Kumar had filed a defamation suit against the intern and certain media houses in the high court for what he considered false charges. The intern’s lawyer, Indira Jaising, pointed out that she may not get justice in Delhi due to Kumar’s clout in the high court, where he served as a judge. The bench felt that “not only must justice be done, it must also be seen to be done”.

The last word

t was yet another case of confrontation between the executive and the judiciary over judges’ appointment after the Gopal Subramanium standoff, but this time the apex court stood firm. The center had an issue over the selection of Karnataka High Court judge KL Manjunath as the chief justice of the Punjab and Haryana High Court by the Supreme Court collegium, led by Chief Justice RM Lodha. The proposed name was sent back by the law ministry for a re-think, as there were certain complaints against Manjunath from a senior judge of the Supreme Court. The court went into the allegations and found them baseless. Therefore, it refused to toe the center’s line, which was left with no option but to go by the apex court’s decision.

Another first for apex court

n a landmark instance, the Supreme Court imposed a fine of `10 lakh on a petitioner for filing documents which were incorrect, incomplete, and with typing errors. A three-judge bench headed by Justice HL Dattu passed the order while dealing with a case related to bunglings in housing societies of Delhi. The matter was to be listed after payment of the fine.

Illustrations: Aruna

Less leave, more work

he Chief Justice of India RM Lodha’s insistence that the number of working days in the apex court be increased was finally reflected in the Supreme Court Rules 2013, that replaced the 1966 notification. The summer vacation for judges was reduced from the earlier ten weeks to a maximum of seven weeks, although the number of court holidays remained the same (103) in a year. The new rules will come into effect from August 19, 2014.

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he Supreme Court dismissed any need for electoral reforms, saying elections in India were an example to the world for scale, precision and speed. While hearing a PIL that wanted the apex court to ask the election commission to put in place a UK-like system, where voters had a clear brief on all past developments of a candidate before they went out to vote, the apex court stated that Indian laws and values were different from other countries. The court further pointed out that the use of electronic voting machines throughout India was unprecedented in the world and other countries were simply bowled over by the entire process. INDIA LEGAL August 15, 2014

LEAD/ indian muslims/police hostility

GROWING THE ANGST Members of Muslim community in Jamia Nagar area of Delhi seethe with anger at the Batla House encounter in 2008

August 15, 2014

DISTRUST

for the first time, the police admits its inaction to save muslims during riots, and legal action to arrest and detain them has alienated the largest minority community By Neeraj Mahajan

T was probably the first-ever admission of police biases against Muslims. In a startlingly candid statement, a report by three DGPs (directors general of police)—Sanjeev Dayal of Maharashtra, Deoraj Nagar of Uttar Pradesh and K Ramanujam of Tamil Nadu—along with an Intelligence Bureau representative, admitted that there was a trust deficit between the Muslim community and the police. The report, “Strategy for Making Police Forces More Sensitive towards Minority Sections”, said: “Poor representation of the minorities in the police forces has contributed to this distrust and suspicion. It has to be admitted that the conduct of some members of the police forces in various states during communal riots had only served to strengthen and heighten these suspicions and distrust in the minority communities.” Presented at the 2013 DGs’ conference in New Delhi, the report called for urgent correction, as it impacted the internal security of the country. It awaits action from the central government.

Rajeev Tyagi

ROTTING EDIFICE This distrust of the police, despite Muslims forming 13.4 percent of India’s 1.21 billion population, is a sad commentary on the state of our police system. A report of a fact-finding team in one of the worst communal strifes in Muzaffarnagar in 2013 said: “There was a plan to end decades of coexistence and cleanse certain villages of the Muslim presence.… The police response has been too little and too late…. Mobile patrols and static pickets have been absent INDIA LEGAL August 15, 2014

LEAD/ indian muslims/police hostility

AT THE RECEIVING END (Above) The ramshackle Gulbarga Society, which witnessed large-scale violence during the Gujarat riots in 2002, despite its residents pleading for police protection

where they may have been most required…. And even if a number of complaints and FIRs have been registered, there seems to have been no attempt to arrest the perpetrators of the killing and violent expulsion of Muslims…. The outcome is a complete loss of faith in the agencies of the state, with the police now castigated as an accessory of caste and communal violence.” SHAMEFUL PARTISANSHIP In the Mumbai riots of 1992–1993, the Justice BN Srikrishna Commission came down on the police, saying: “The response of police to appeals from desperate victims, particularly Muslims, was cynical and utterly indifferent. On occasions, the response was that they were unable to leave the appointed post; on others, the attitude was that one Muslim killed was one Muslim less.... The treatment given (to Muslims) was harsh and brutal and, on occasions, bordering on the inhuman....”

August 15, 2014

This scathing indictment of the police has had dangerous consequences. A common refrain among Muslims is that the police simply vanish during riots or fail to protect minorities. They arrive late and even when they do, often arrest the victims for inciting violence. A report by the Chennai-based Hindu Center for Politics and Public Policy (HCPPP) stated: “When the police remain passive in a communal riot, more people die.” It based its observation on the reports of three commissions of inquiry—anti-Sikh riots (1984), and Mumbai and post-Godhra Gujarat (2002) riots—where police inaction and passivity contributed to a worsening of the communal situation and led to a higher death count. Titled “Passive Police-Institutional Learning through Inquiry Commissions”, the report was handled by Vasundhara Sirnate, HCPPP’s chief coordinator of research. She laments: “I find that there is a striking similarity in police response in all three cases and it is

apparent that lessons were not learnt.” She adds: “The police have biases and are politicized, and hence take sides and lose any sense of perceived impartiality which leads to a spiral of violence.” To make matters worse, the loyalty of Muslims is suspect. This prejudice and the belief that they are sympathetic towards Pakistan, translates into mistrust and excessive use of force against them during communal riots. In India, some 40 major communal riots have taken place after 1990. Among the most shameful examples of paramilitary partisanship were during the Meerut-Maliana riots (1987), those in Mumbai following the demolition of the Babri Masjid (1992), and Gujarat (2002). On May 20, 1987, after the killing of 53 people in week-long rioting in Meerut, curfew was imposed and Meerut City handed over to the Provincial Armed Constabulary (PAC), which was given powers to shoot at sight. This resulted in 117 extra-judicial killings of Muslims, despite a fairly high number of their brethren being in the PAC. They were reportedly ordered to surrender their weapons and remain absent from duty. Similarly in Gujarat, on February 27, 2002, the Sabarmati Express was attacked and set on fire by a Muslim mob at the Godhra station. As retaliatory attacks on Muslims began, curfew was imposed in 27 cities. Thousands of troops were reportedly ready to move in from neighboring Rajasthan, but were not provided any transport. Security forces watched, as mobs tore through Muslim areas, with some even encouraging the rioters. The police commissioner of Ahmedabad had urgently asked for more troops for the state, but orders for their deployment were deliberately delayed by the state government. When the army did finally arrive in Gujarat, there was no one to guide them in unfamiliar cities there. This delay could have been avoided and several lives could have been saved. Unlike the police, the army’s presence often restores order. In Muzaffarnagar, calm was restored by its presence and violence abated. Women and children trapped in their homes told a fact-finding team from the Center for Policy Analysis that they were rescued by the army from the burning villages.

Various inquiry commissions found that police’s action during riots is too little, too late. Its response to pleas of Muslims is cynical and utterly indifferent. Biases against Muslims are seen even in commissions of inquiries. The Liberhan Commission to investigate the Babri Masjid fiasco originally had to submit its report within three months, but after 48 extensions and an expenditure of `700 million, took 17 years to do so. COMMISSION OR OMISSION? In contrast, the Srikrishna Commission formed to probe the Mumbai riots, took only five years. The Maharashtra government rejected its report on the plea that it was only a commission, not a court of law and as such, its findings were not binding on it. Till date, the recommendations of the commission have neither been accepted nor implemented. Many indicted policemen have been promoted by the government, while tainted politicians continue to hold high offices. After the Godhra train carnage, the Gujarat government initially wanted a onemember commission headed by Justice KG Shah, a retired Gujarat High Court judge, supposedly close to then Chief Minister Narendra Modi, to look into the events. However, on May 21, 2002, retired Supreme Court (SC) judge, Justice GT Nanavati, was made chairman of the Nanavati-Shah Commission to look into these riots. Its fairness was suspect when, in a Tehelka tape, Arvind Pandya, Gujarat government’s counsel, said that Hindu leaders need not bother about the findings of the commission as Shah was “their man” and Nanavati could be bribed. Though the initial term of the commission appointed on March 6, 2002, was three months, even after examining 40,000 documents, 1,000 witnesses and 21 extensions, the final report has not seen the light of day. The biggest blow to the commission’s credibility was that out of the 94 accused named by it in interim reports, 63 were acquitted by a special fast track court. Only 31 were found guilty; all of them Muslims. The whitewash INDIA LEGAL August 15, 2014

LEAD/ indian muslims/police hostility

job of the commission became evident when Justice Nanavati wanted to come up with an interim report stating: “There is absolutely no evidence to show that either the chief minister or any of the ministers in his council or police officers played any role in the Godhra incident.” Later, this was proved wrong. SUCCOR FROM COURTS The biased attitude of the police is also evident when courts release innocent Muslims, who have been unfairly charged. In the 1993 Surat bomb blast case, where a woman was killed and several injured, 11 were arrested. A twojudge SC bench acquitted all of them. The SC also reversed a TADA court verdict which had sentenced them to 10-20 years in jail. In 2000, three Muslims were charged with sedition for making and planting a bomb at Sahkarita Bhawan in Lucknow and spent several years behind bars. Almost a decade later, they were acquitted, as no evidence was found against them. The police had also accused them of being associated with the Students Islamic Movement of India and the Pakistanbased Hizbul Mujahideen. In yet another landmark case in May 2014, the SC acquitted all six accused, including

Common complaints “The working of the Special Investigation Squad is a study in communal discrimination. The officers of the squad systematically set about implicating as many Muslims and exculpating as many Hindus as possible, irrespective of whether they were innocent or guilty.” Justice DP Madon Commission on Bhiwandi, Jalgaon and Mahad riots in 1970

August 15, 2014

“The riots occurred broadly on account of the total passivity, callousness and indifference of the police… police personnel were found marching behind or mingled in the crowd. The commission was shocked to find that… the police wanted clear and definite allegations against the anti-social elements in different localities to be dropped out while recording FIRs.” Justice Ranganath Misra Commission on anti–Sikh riots in Delhi 1984

three who had been sentenced to death by the Gujarat High Court, in the Akshardham case. Justice came after 10 years of imprisonment. Sadly, the bias against Muslims is seen even in prison statistics. A National Crimes Record Bureau (NCRB) report, “Prison Statics India-2012”, shows that 28.02 percent of detainees, 21 percent of undertrials and 17.8 percent of convicts in India are Muslims. More than half—53.5 percent—of convicted Muslims were lodged in Madhya Pradesh, Maharashtra, Uttar Pradesh and West Bengal. The percentages are higher than Muslims’ share of total population. JAILED FOR WHAT? Many Muslims remain in jail without facing trial for a long time. For instance, 7,330 people from minority communities were found languishing in different correctional homes in Murshidabad; in neighboring Malda, 3,682 Muslims were in jail for over five years, awaiting trial. There are cases where they have been incarcerated for 10-14 years and finally acquitted. But even then, life is hard for them, as they don’t get jobs. And so, they continue to struggle through life. In the Batla House encounter in Jamia

“So far as the minorities are concerned, it is the feeling among them that they are not getting justice, that they are discriminated against in the matter of appointments in the Public Services, that they do not get equal protection of the law and that their religion is in danger, that prompts them to rally around religious organizations of their own…. There is much truth in saying that if you want peace you must work justice.” Justice Joseph Vithyathil Commission on the Tellicherry riots, 1971

Courtesy Indian Muslims

Nagar in Delhi, the police had a weak case against those they suspected to be Indian Mujahideen terrorists. In it, two suspected terrorists, Atif Ameen and Mohammad Sajid, were killed, while two others, Shahzad Ahmad and Junaid tried to escape, but were later arrested and charged with killing inspector MC Sharma of Special Cell of the Delhi police on September 19, 2008. But the police version had many inconsistencies. Blunt injuries on the two dead indicated that they were probably caught alive but killed later. The bullets found in the Sharma’s body did not match those of the gun retrieved from Shahzad. The biases start from the top echelons of the police force. In December 2007, Hyderabad Joint Commissioner of Police (Administration) Harish Gupta wrote to the CBI, annexing the confessions of 25 accused in connection with the Mecca masjid blasts. These included 19 local Muslims and six Bangladeshi nationals. Gupta alleged they were followers of the Ahle Hadees sect and Lashkar-e-Taiba, and had been trained in Pakistani terror camps. However, when the CBI interrogated the suspects, it found the confessions bogus. Though some of the accused were radicals,

they were not behind the blasts, CBI officials wrote in their report. As a result, in all the three cases registered by the Hyderabad Police, the accused were acquitted. SCATHING INDICTMENT And in August 2008, when a panel comprising Justices SN Bhargava and Sardar Ali Khan examined cases of police excesses and torture in Maharashtra, Gujarat, Madhya Pradesh, Andhra Pradesh and Rajasthan, it indicted the police. Their report said: “In most cases, the persons picked up are not shown to be arrested by the police until many days after their arrest in gross violations of the law. Their families are also not informed. In many cases, they have been tortured in police custody and made to ‘confess’ and sign blank papers.” The panel came down heavily on courts too. “In most of these cases, the courts are routinely allowing police remand and not granting bail. They do not examine whether there is any evidence against the accused.” No wonder Colin Gonsalves, a well-known human rights lawyer, alleges: “The Indian police is a body of organized crime. You cannot re-train a force which is trained in criminal activities.” IL

FOREVER SUSPECTED (Above) In the aftermath of the Malegaon blasts (2006), it was Muslims who were rounded up by the police; it emerged only later that other right-wing organizations were involved

INDIA LEGAL August 15, 2014

LEAD/ dgpsâ&#x20AC;&#x2122; report /police reforms

Reaching out with dreams The Jamia Nagar police station in Delhi is trying to earn the trust of the community by offering a free library, coaching and job training By Shadab Nazmi WIN BY KINDNESS (Below): Police personnel interacting with candidates at the coaching program

August 15, 2014

OUR years after it earned public ire through the infamous Batla House encounter of 2008, the Jamia Nagar police station started an ambitious program to bridge the huge gap that exists between itself and the Muslim community. It was a step towards opening direct communication lines, and the medium was a free public library founded on February 22, 2012, under the supervision of Ajay Chaudhary, additional police commissioner, South East District; P Kamraj, joint commissioner of Police; and Safdar Hussain Khan, former chairman, Delhi Minorities Commission. Two years down the line that library has been able to address the deep misunderstanding within the Muslim community of Jamia Nagar, not only providing them a place to acquire knowledge but also offering them coaching schemes that fetch jobs. The mist of suspicion is slowly lifting and a sunny future is visible. Take the case of Mehrin Aslam, a 25-year-old mother from Neb Sarai, Delhi. Separated from her husband after two years of marriage, she now lives with her sevenyear-old daughter. Every day, she wakes up early, sends her daughter to school and then reaches Jamia Nagar police station, having changed buses en route. There, she sits down to study. She hopes to get admission to the much sought-after Bachelors program in Education (BEd) of

Jamia Millia Islamia this year. “Pehle mujhe police station se bahut dar lagta tha, ab mai aadha din yahin guzarti hoon aur aadha din dukan par baithti hoon (I used to be scared of police stations earlier. Now I spend half-a-day here, and the rest running my shop),” Mehrin says. She has pegged her hopes high, and the free coaching classes at the police public library aid her dream of teaching at some renowned government school one day. Mehrin is not alone. Several BEd and Union Public Service Commission aspirants receive free coaching at the library. The initiative is in collaboration with Shikhar Organization for Social Development, actively working in the sector of education and health for the past three years. Says Chaudhary: “This initiative isn’t just to bridge the prejudice between the police and the people, but also to produce people with a better insight into the educational opportunities.” The centrally air-conditioned library is located adjacent to the record room. It is open five days a week, between 9am and 5pm. It has over 1,200 books in marketing and management, child development and fiction, besides other non-fiction books and competition series magazines. It also offers daily newspapers like Dainik Bhaskar, The Hindu, The Times of India, Inquilab and National Duniya. There is no membership fee—one just needs to fill a simple form, submit the copy of an identification card and a residential proof document.

oaching apart, there is another facet of the library: it provides job-oriented training to those who have passed classes X and XII. This practical approach has helped many of them move into jobs commensurate with their abilities. Assistant librarian Soniya Singh loves what she does there. “I love my job,” she says. “I come here to read as well—there were just fairy tales books in my Noor Nagar Government School library.” But suspicions still run deep. Sahil Ahmad, a IVth year student of law, thinks it’s just a show. “Ye sab dikhawa hai. Library toh bas logo ko lubhane ke liye hai ki police kitni acchi hai (This is just a show. The library is just to

Photos: Shadab Nazmi

broadcast to the people how good the police is),” he says. However, positivity shows up too. Nadeem Akhtar, managing director of Shikhar, talks of the good side: “Since last year, there have been over 4,300 visitors to this library. And as for success, 49 out of 80 participants got selected for BEd program and there are already 118 registrations for Industrial Training Institutes’ (ITIs’) training program this year. You can’t overlook the achievements of this library.” So what has changed at the police station itself? Sub Inspector Manjit Singh says: “We are trying to present a model, and we are getting mature.” Constable Rishi Sharma has another take: “We could serve as an inspiration for the students—if we work in a disciplined way, they will learn from us.” Sharma says most of the criminal cases in the region are due to property disputes. Every time there was an arrest, people used to assemble at the station in groups, creating a ruckus. When the library opened, the people stayed out of the station, because they know their children are reading inside. This possibly follows the lead provided by Pune, where, in 2008, the rural police set up libraries in 31 police stations to inculcate reading habits among its own men. Money from the police welfare fund was used to buy selected books from Rasik Sahitya Private Limited at Appa Balwant Chowk in Pune. That was just a lead, though, because in Delhi, this police station offers its books for free to all in the area. That is a big difference. IL

MISSION CAREER Student Murtaza Saeed, who cracked the Delhi State Service Commission examination due to the police initiative, being interviewed by mediapersons

INDIA LEGAL August 15, 2014

LEAD/ indian muslims/isil jehad

ecent reports of Indian Muslims queuing up to go to Iraqâ&#x20AC;&#x201D;Sunnis to join the new jehadi army of the Islamic state of Iraq and the Levant (ISIL) and Shias to halt the triumphant march of the ISIL to the holy cities of Karbala and Najafâ&#x20AC;&#x201D;has sent alarm bells ringing through the security establishment in New Delhi. Will Muslims of India now become a part of the global jehad, which has sent scores of young people from Europe, Africa and the US flocking to Afghanistan (in the early days) and now to Syria and Iraq? If people go in sufficiently large numbers and return home to indoctrinate others, it could well pose a major future threat to India. The scepter of mass suicide bombers in this country is a danger too horrible to contemplate. Suicide bombings,

reports about indian muslims joining the wars in middle east are exaggerated. they are more angered by domestic trends By Seema Guha

LOOK WITHIN FOR MUSLIM ANGST August 15, 2014

Photos: Anil Shakya

once the copyright of the Liberation Tigers of Tamil Eelam, are now being widely used by Islamic terror groups. The news that four young men from Maharashtra may have joined the ISIL, came to light when the parents of one of the boys reported it to the authorities. The four had left for Iraq on May 23, as part of a 22-member group of pilgrims. On May 25, they hired a taxi to Fallujah and disappeared. The parents of Arif Fayyaz Majeed, one of the boys, allege that they have joined the ISIL. The concerned parents later travelled from Kalyan (Maharashtra) to Delhi earlier this month and met home minister Rajnath Singh. They want the government’s help to get back their son and want action against those responsible for radicalizing the young men. The names of the others of the group are Fahad Tanvir Sheikh, Aman Naim Tandel

and Shaheen Farouqi Tanki. All three are from Thane (Maharashtra). “If there is concrete evidence of Indian Muslims getting involved in the global jehad, it is a matter of grave concern,” says Talmiz Ahmad, India’s former ambassador to Saudi Arabia and Oman. He is now based in Dubai and closely follows developments in the Arabian Peninsula. Ahmad is not certain that there is enough evidence to back the newspaper reports. Much of what is being said is from accounts given by the parents of Majeed. The reports so far are “vague”. One of the reasons that the parents believe the boy could be with the ISIL, is because of a reference in a letter to “Allah’s land”. But for a young man growing up in a Sunni household, Allah’s land would not be ISIL, but the holy city of Mecca. There could be the other interpretation that

HOLDING PEACE DEARER While four Muslim youth (above) Arif Majeed, Aman Tandel, Fahad Sheikh and Shaheen Tanki might have enlisted themselves with the ISIL, a majority of Indian Muslims are against militancy, as is evident from this protest (left) INDIA LEGAL August 15, 2014

LEAD/ indian muslims/isil jehad

Muslim youth in India have been radicalized not so much by the ideology of global jehad in Iraq, but the injustice they have experienced domestically. because the ISIL is now in control of large swathes of territory, the liberated region is considered as Allah’s land. Nothing is really clear if these four boys are really with the ISIL, or if there are more Indians who have made their way to the area. Chances are that it would be difficult for anyone to travel to the area at the moment. However a visiting Syrian dignitary, an aide of President Bashar al-Assad, told Indian journalists two years ago that Indians were fighting on the side of the Al Qaeda and other militant Islamic groups, on a mission to overthrow President Bashar Assad. “This is a lie,” Ahmad declares. There has also been the disquieting report of a terror group Ansar ul Tawhid-ul Hind, claiming that one of their men Anwer Bhaktal has been martyred while fighting in Afghanistan. Bhaktal was based in Dubai and is said to be a relative of the Indian Mujahideen founder Riyaz Bhatkal. He has been helping IM from Dubai since 2008. SHIA CONCERNS Apart from the radicalization of a handful of Sunni youth, there is also large-scale concern among Shias in India about the advance of the ISIL forces in Iraq. They fear the Shia shrines in Najaf and Karbala would be destroyed if the ISIL hordes overrun the Iraqi army. Najaf has the shrine of Imam Ali, the son-in law of the Prophet revered by Shias, while Karbala is revered because it has the mosque devoted to Imam Hussein, the Prophet’s grandson. Both these towns are places of pilgrimage for Shia Muslims worldwide. In Lucknow, which has among the largest Shia populations in India, one of the influential clerics, Kalbe Jawad, patron of Anjuman-e-Haideri, made waves when he declared that he would be going to Iraq with volunteers to protect the holy shrines. While

August 15, 2014

the concern is genuine, the rest is bluster. The government of India has already announced a travel ban to Iraq following the security situation there. The cleric also changed his views while speaking to India Legal: “No, no we are not going there to fight. We want to be there to help the people affected by the fighting.’’ Jawad however adds that when a notice was issued for volunteers to go and protect the holy shrines, nearly a lakh of people sent in their names. “Let us see how many of them will finally turn up. As of now no one can travel to Iraq,” the cleric says. Talmiz Ahmad says that the Iraqis have enough volunteers of their own, as well as sympathisers from Iran, to make up the numbers. While it is natural for Indian security agencies to be aware of the dangers posed by radicalization of Muslim youth, it is also necessary to view things in perceptive. Of the roughly over 168 million Indian Muslims,

just a handful have so far tried to be part of the global jehadi movement. The figures of course could be a little more, because it is difficult to track down every person. Most ISIL foreign fighters are Chechens and Arabs from the Gulf Cooperation Council countries. REALITY CHECK As a rule Muslims of this country have been largely insulated from the massive upheavals that have shaken the Islamic world. During the jehad in Afghanistan, first against the Russians and then the Americans, though nearly 100,000 Muslim volunteers from all over the world rushed there, Indian Muslims kept aloof. Whether it was the Taliban or the Al Qaeda, Indians were not really part of the movement. The Arab spring too did not have much of an impact on Indian Muslims, though like everybody else the educated Muslim community too keenly followed the events unfolding in Tunis, Egypt, Bahrain

and the rest of the Muslim world. Professor Mushirul Hasan, historian and former vice chancellor of Jamia Millia Islamia, warns against over-reaction to a handful of Indian Sunnis and Shias heading to Iraq. “For some it will be a stick to beat the community. But we must be aware that Indian Muslims have not ever expressed strong feelings over either Iraq, IsraelPalestine or any other such issues which concern the rest of the Islamic world. In fact, Indian Muslims hardly ever speak out even about fellow Muslims in Kashmir…. We have to be careful.” However, the Sunni-Shia conflict across the Muslim world may also have a ripple effect in the subcontinent. Sunnis in Pakistan are constantly targeted by the Pakistan Taliban. Indian Sunnis and Shias have long had a testy relation. There are often clashes during the Muharram procession in Lucknow. Politically too, this time around

MAINSTREAM ASPIRATIONS What Indian Muslims need is better education and more employment opportunities

INDIA LEGAL August 15, 2014

LEAD/ iraq crisis/ indian muslims

FRAGILE PEACE? Despite such proclamations, Shias and Sunnis have often clashed with each other in India

August 15, 2014

in UP, many Sunni Muslims said that the Shias were possibly the only Muslims ready to vote for the Narendra Modi-led BJP. The emergence of hardline Wahabi Islam in the last few decades across India and Pakistan has much to do with Saudi funding of mosques and madrasas in the subcontinent. Flushed with oil wealth, the Saudis, who profess a severe interpretation of Islam, are making sure that poor Muslims in South Asia are fully indoctrinated. It is time for governments in the region to monitor the madrasas and keep an eye on what is taught in these schools meant exclusively for poor Muslims. Long-time politician Arif Mohammad Khan blames India’s political parties for much of the problems faced by the community. He believes that in their effort to woo the Muslim electorate, the politicians have encouraged the traditional backward leaders of the community. “I am surprised that just a handful of Indian Muslims have so far joined the jehadist forces. Considering the kind of

education they receive in madrasas, the kind of retrograde elements who represent the Indian Muslim community in it could have been much worse.” Muslim youth in India have been radicalized not so much by the ideology of global jehad, but the injustice they have experienced domestically. The Mumbai riots that followed the Babri Masjid demolition (December 1992-January 1993) and the Gujarat riots of 2002 have succeeded in alienating a large number of young Muslims. Considering that the Srikrishna Commission Report that went into the causes of Mumbai riots has gathered dust also perturbs the thinking Muslim. Even more, the knee jerk reaction of India’s investigative agencies in blaming Muslim youth for everything and often putting them behind bars on false charges, does not bode well for the future. Unless Indian Muslims are given their rights and not just wooed as vote banks, the chances of more young people being radicalized is real. IL

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THE NATION/ pmo

The Hunt with power concentrated in the pmo, ministers are sometimes the last ones to know what’s happening in their departments By Neeraj Mahajan

he Prime Minister of India’s Office (PMO) under Narendra Modi is developing as a supercabinet and epicenter of extra-constitutional and alternate authority—a control room for relaying and repeating the signals received in his master’s voice. It’s a

August 15, 2014

command post for C5-I2 (conceptualization, command, control, communications, coordination, intelligence and implementation) operations. As the new headmaster of the school of ministers, Modi is changing established rules of governance. All the ministries are now glorified front desks— administered and mentored by the PMO. The PMO has the last word—especially when it comes to economic ministries like petroleum, power, transport, and commerce. Soon it will be operating as a de facto planning commission. Even the Performance Management Division (PMD), currently under the Cabinet Secretariat, is expected to merge into it under the pretext of better assessment of bureaucratic work. A big

DOUBTING THEIR CREDENTIALS? A cabinet meeting soon after the NDA government took over Photos: PIB

erwallah overhaul is expected of the Performance Management Evaluation System (PMES) that was set up by former Prime Minister Manmohan Singh in January 2009. The 20-room PMO, flanked by the Cabinet Secretariat, Ministries of External Affairs and Defense, and Rashtrapati Bhawan is the new hot seat of power and a place where all important decisions are taken on behalf of Modi. A haven for serving, re-employed or rehabilitated bureaucrats and clerks, who are reliable, efficient, trustworthy and loyal to Modi, the PMO, faced with a space crunch, is trying to elbow out other departments from South Block to accommodate its staff. The big question is, whether the PMO

As the new head master of the school of ministers, Modi is changing the rules of governance. All the ministries are now glorified front desks, mentored by the PMO. should be a center for alternate and unaccountable government authority or a refuge for power-brokers? A government with absolute unaccountable authority can always use it as a brute force. Indira Gandhi used to marshal ordinances when parliament was not in session and later convert them into bills without any discussion in parliament. With hardly any political opposition, INDIA LEGAL August 15, 2014

THE NATION/ pmo/centralization of power

Modi held a meeting of 77 secretaries, and told them they could come to him directly with their ideas. This will allow them to overrule their ministers. the toughest challenge before Modi is not how to make politicians behave but how to make the sluggish 18 million strong bureaucracy work and deliver results. Apparently, Prime Minister Atal Bihari Vajpayee too reportedly realized this, but since the bureaucracy was not in a mood to change—he decided to change himself. Paradoxically, although Cabinet Secretary Ajit Seth (1974 batch) is supposed to be the seniormost bureaucrat in India, Nripendra Mishra (1967 batch), the principal secretary in the PMO, has wider powers because of his proximity to the PM. There are many overlapping and unresolved issues between the Cabinet Secretariat and PM’s Secretariat. But no one bothers about it, as the heads of both retired from the Uttar Pradesh cadre of IAS and are not accountable to anyone or any authority except Modi. Seth was given a oneyear extension by the UPA in 2013 and was

Double dipper The NDA government ensured that Nripendra Misra, former chief of Telecom Regulatory Authority of India (TRAI) was appointed as the principal secretary to Narendra Modi. The government introduced TRAI (Amendment) Bill that allows a former chief of TRAI to take up a government job after retirement, whereas earlier he could take up only private jobs. Misra, a 1967-batch IAS officer, had retired as TRAI chairman in 2009. The bill was cleared in the Lok Sabha and Rajya Sabha, with the support of Trinamool Congress, Samajwadi Party, Bahujan Samajwadi Party and the Biju Janata Dal, with only the Congress opposing it.

August 15, 2014

due to retire on June 13. But thanks to a second extension of six months, many 1976-1977 batch IAS officers might lose their chance to become cabinet secretary. Mishra, who too retired long ago, has much to thank Modi for. According to sources close to the new prime minister, Modi’s idea behind an assertive PMO is to have one man in command, one aim, one speed and one direction—forward. The one in the driver’s seat alone decides when to speed up the pace or apply the brakes. Modi’s style of handling the bureaucracy is more or less similar to that of Rajiv Gandhi in the early days of his prime ministership, when he called a meeting of 600 district collectors. Modi wants performers in his team. The crux of the problem is not the intention but the way he is going about finding a solution.

ilution of powers of the cabinet secretary and home ministry started during Indira Gandhi’s time. In between 1969 and 1977 and after 1980, many intelligence and subordinate offices, originally under the home ministry, were taken over by the PM secretariat. These were the days of Indira Gandhi’s powerful “kitchen cabinets”. The real cabinet was stripped of its powers. Indira Gandhi did not want cabinet ministers to be powerful. Anyone who refused to toe the line was removed or disgraced. Outspokenness was not tolerated. The PMO issued direct orders—demanding all ministerial statements to be cleared by it. Mohan Dharia, who defied the order, was dismissed from the cabinet. Years later, VP Singh too was shifted when he tried to do things without consulting the PM. Even now, the manner in which the PMO is usurping powers and making the other ministries and departments play second fiddle is alarming. Intentionally or otherwise— Modi is playing with fire—he is activating a dormant but potentially volatile political and bureaucratic volcano. The Government of India’s Transaction of Business Rules, 1961, says that the president allocates the business to the ministers by assigning one or more department to the minister on the advice of the prime minister. Thereafter, the minister is supposed to be

in-charge of disposal of business of that department. But three developments have a different story to tell. One of the first things Modi did after becoming the prime minister was to chair a two-and-a-half hour meeting of 77 secretaries to the government of India, including Cabinet Secretary Seth; finance, Mayaram; home, Anil Goswami; defense, Radha Krishna Mathur; foreign, Sujatha Singh; commerce, Rajeev Kher; personnel, SK Sarkar; power, PK Sinha; agriculture, Ashish Bahuguna; and heavy industries, Sutanu Behuria. This form of direct one-to-one communication was a marked departure from Manmohan Singh’s days. But surprisingly all the cabinet ministers were left out. Aren’t ministers equally responsible for running the government and need to know what is being discussed about their ministry? Modi reportedly told the secretaries and senior bureaucrats that he was going to be “accessible to all of them” and they could walk in anytime to discuss ideas directly with him. Here are the implications: under the

Manmohan delegated power, not responsibility; as a result he got the blame whenever anything went wrong. Modi delegates responsibility, but not power. present system, secretaries to the government of India do not have a system of appraisal like annual confidential reports (ACRs) and are indirectly covered by the PMES. This means secretaries don’t need to please their bosses for good ACRs like lower ranks. Given an opportunity they would be only too happy to bypass their ministers and get them over-ruled. Why does Modi need to talk directly to officers behind his own ministers’ back? All the secretaries were asked to prepare a 10-minute presentation for the prime minister, listing each ministry’s goals and scope for improvement. This was to be first vetted by the PMO before the ministers were brought into the picture. Why should the ministers

DIAL M DIRECTLY Prime Minister Narendra Modi at the meeting with secretaries, in which ministers were not invited

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THE NATION/ pmo/centralization of power

Tourism minister Shripad Naik was not allowed to visit China to attend the festival of India. Others could not select their private secretaries.

NOT IN HIS FOOTSTEPS Modi, the mascot of centralized power, bows to the Mahatma, who stood for decentralization

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be the last to know what’s happening in their ministries? If the ministers are immature or incapable, why did he appoint them? Curiously, even the constitution of India does not recognize or provide for an authority—with or without the name of PMO—to assume, dilute or usurp the powers of the council of ministers, who are accountable to the parliament and people. There is no mention of any extra-constitutional authority, with any such superior or overriding powers. The prime minister himself is supposed to be “primus inter pares” or first among equals. As

per Article 74 of the constitution, the prime minister and all his ministers are appointed by the president to “aid and advise the President”, but there is no provision in any statute book for the prime minister or his PMO to ride roughshod over the collective responsibility of the cabinet. In any conventional system, the minister’s job is to formulate the policy and the bureaucrat’s job is to implement it. But by changing this equation Modi seems to be conveying the impression that he wants things done, even if it means changing the rules. No bureaucrat would mind direct access to the prime minister, but it is for the prime minister to ensure that the authority of the ministers is not bypassed and secretaries do not make it a routine to do it or poison the prime minister’s ears behind a minister’s back. “The real danger is not what is happening inside the PMO but the manner in which it is

transforming everything into Modi ki pathshala or finishing school for ministers,” quips a political observer. Most of Modi’s ministers heading various ministries or departments are totally clueless about what is happening. Union tourism and culture minister Shripad Naik was denied permission to visit China to attend the festival of India. Naik was shocked not by the denial of permission but the manner in which it was conveyed to him. Even other ministers are not expected to have a mind of their own. Most ministers can’t even decide about whom to induct in their personal staff. The PMO turned down the requests of Home Minister Rajnath Singh, Minister of State for Home Kiren Rijiju, Minister of State for External Affairs Gen (Retd) VK Singh and Minister of State for Rural Development Upendra Kushwaha for their preferred private secretaries. There is no scope for imagination and innovation and all that is left for the ministers is to say: “Yes Prime Minister”. Sadly, the information and broadcasting (I&B) ministry’s priority task today is to send fourhourly reports to the PMO on all that is catching public attention on the social media—Facebook and Twitter. Nothing else moves without the PMO’s instructions. Even the manner in which good boys (loyalists) have been rewarded and bad boys have been moved out has raised eyebrows. For instance, R Ramanujam, secretary, PMO, and 1979-batch MP cadre IAS officer, was recently given three months’ extension “in the public interest”. Varesh Sinha, Gujarat Chief Secretary under Modi and a 1977-batch IAS officer, received a three-month extension. Sinha had already got his first extension in April and will now serve till October. Another Modi favorite, Rajesh Kishore, a 1980-batch IAS officer, has been moved to Delhi as secretary general of the National Human Rights Commission (NHRC). At the other end of the spectrum, 80year-old MK Narayanan, the Congressappointed governor of Bengal, was one of the first to be made to step down after being questioned by the CBI for his role in the purchase of VVIP helicopters. The days of Sheila

Rajeev Tyagi

Dixit, the controversial governor of Kerala, are numbered. Rajiv Nayan Choubey, a 1981-batch Tamil Nadu cadre officer, was also unlucky. He had almost packed his bags after the appointments committee approved his transfer from power to PMO as additional secretary on June 12. But soon he received another order, cancelling the earlier one. Choubey was to replace Shatrughan Singh, a 1983-batch Uttarakhand cadre IAS officer, whose name figured in the multi-crore coal-block scam. The government is also planning to announce stricter rules for cushy post-retirement jobs for civil servants, particularly during the cooling off period. A basic difference between Modi and Manmohan Singh is that the former would delegate power, not responsibility; as a result he would get the blame if anything went wrong. Modi distributes work; he delegates responsibility; but not power. He is a slave driver who wants others to do things his way. But the question that needs to be answered is, whether the PMO should be allowed to develop as an independent and parallel legislative authority, outside the immediate control of parliament. IL

POWER POINT The South Block, housing the PMO, is now the center of political and administrative control

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POLITICS/ bjp president

GOOD COP BAD COP the sangh parivar is more comfortable with the namo-amit shah combine compared to the tension-filled vajpayee-advani reign By Vishwas Kumar

T is the beginning of a new era in the NDA-BJP-RSS triumvirate. The dawning of this fresh age was beautifully captured during the recent anointment of Amit Shah, Narendra Modi’s right hand man, who is out on bail on charges of “encounter killings” in Gujarat, as the BJP’s new president. Most viewers saw the image of a desolate, sidelined and embittered Lal Krishna Advani, the man who could never be king. His head was down; he didn’t look at Shah. It was the image of a politician who had been vanquished. The earlier epoch (1990-2004), lorded over by the Atal Bihari Vajpayee-Advani old-guard combine, officially ended on that day, although their decline had started with NDA’s humiliating electoral loss in 2004. Ten years later, the senior pair is out, the younger Modi-Shah partnership is in. There are many similarities and differences between the two pairs. It is not only about the individuals involved, but the relationships between the government and party, party and RSS, and RSS and government. And, all the four politicians are closely aligned with the RSS. During the NDA’s previous rules, Vajpayee focused more on governance, or government,

August 15, 2014

while Advani was involved in rejuvenating and energizing the party. Thus, there was an attempt to balance the demands of the government, BJP and RSS. Similar is the situation in case of Modi and Shah, wherein Shah will focus on the party, and become the main bridge between the BJP and RSS. The recent induction of Ram Madhav, the RSS pracharak-turned-Modi loyalist, into the BJP, most possibly as a general secretary, signals that he will be another crucial link between Modi (government), Shah (BJP) and the RSS. However, the similarities end there. Modi and Shah share an amazing personal and political relationship. They met during their RSS days in the 1980s; this led to a 12-year partnership in Gujarat between 2002 and 2014. While Modi was the state’s chief minis-

ter, Shah was his most important loyalist as the home minister, comfortable to remain in his leader’s shadow. Modi had the charisma and vision in Shah’s scheme of things. Shah’s job was to translate the chief minister’s dreams into reality; he was the organizer and implementer, who achieved Modi’s objectives without questioning the motives. The success of the “Gujarat model” can be traced to both Modi and Shah. The chief minister envisioned it; his home minister enforced it. Shah created the “right” environment to ensure that the model worked and yielded results. The same will happen at the center. Modi will set the agenda for a new India—a 2020 blueprint—and Shah will make it happen. The Vajpayee-Advani jugalbandhi was

The BJP era under the Vajpayee-Advani combine ended the day Amit Shah became the BJP president; the duo’s decline had started with NDA’s electoral loss in 2004. similar, but not the same. Before the BJP-led NDA came to power for the first time—for 13 days in 1996—the duo was in perfect sync. Vajpayee was the political leader, Advani was the political organizer. Vajpayee was the astute schemer, Advani was the intellectual. Vajpayee was the liberal face, Advani was moulded in the Hindutva image. Therefore, it wasn’t surprising that Advani mooted Vajpayee’s name as the prime minister. (The RSS was unhappy with the move, as its

HIS MASTER’S VOICE Amit Shah seeking the blessings of Prime Minister Narendra Modi; old guard Advani looks desolate

INDIA LEGAL August 15, 2014

POLITICS/ bjp president

The RSS was discontented with Vajpayee’s liberal face. It had issues with Advani for his failure to stand up to Vajpayee. It has no such qualms about either Modi or Shah. candidate was Advani.) Equations between the two leaders, however, changed dramatically for the worse once the NDA came to power for 13 months in 1998, and for a full term in 1999.

Plan of action Modi will set the blueprint for a new India, a 2020 blueprint, while Shah will implement it The PM will focus on governance while Shah will be the crucial link between the BJP and RSS The duo should please vast sections of voters, the BJP and RSS Shah needs to win the upcoming assembly elections for his boss, so that the BJP can increase its numbers in the Rajya Sabha Modi and Shah should have no issues with the RSS as they will involve it in all major government decisions The Modi-Shah team needs to execute at least a part of RSS agenda

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lthough Advani wanted Vajpayee to be the prime minister, he felt that their stature was the same. One wasn’t more equal than the other, merely because of the post. Therefore, egos came into play, unlike Modi-Shah combine, where Shah will always remain the number two. Second, Vajpayee bent backwards in a bid to prove that he was a liberal who could work with various political and ideological groups. Vajpayee had regular altercations with Advani and the RSS. While the RSS respected the prime minister, it could not depend on him to deliver on Hindutva objectives, like the Ram Mandir in Ayodhya. Finally, Advani continued to harbor a dream to become the prime minister and remained wary and jealous of Vajpayee. Two events in the last NDA tenure highlighted these varying and layered tensions. In the 2000s, Vajpayee was reluctant, and had to be forced, to defend his three ministers, including Advani, whose names had cropped up in the Babri Masjid demolition case. After the NDA’s 2004 loss, Advani and the RSS were shocked when Vajpayee said that the 2002 Gujarat riots was one of the factors responsible for the electoral debacle. Given these nuanced, but critical, differences, the Modi-Shah combine is likely to work in a more conducive manner than the Vajpayee-Advani one. The former is likely to yield more political and governance dividends to the NDA (government), BJP and RSS. However, it will depend on several factors. One of the determinants will be how quickly Modi can evolve as the “good cop”, even as Shah remains the “bad cop”. This is crucial to

appease vast sections of the voters, BJP as well as RSS. If Modi can emerge as a global leader, who provides good governance, futuristic policies, efficient development and corruption-free regime, his stock among voters and investors will shoot up further. This has begun to happen, as was evident from Modi’s electoral campaign and his first two months as the prime minister. During his canvassing, as he wooed voters, one didn’t witness the now familiar strident, belligerent body language and harsh words against the minorities and anti-Pakistan rhetoric. After he became the prime minister, Modi appeared to be gentle and polite; he didn’t aggressively go after his political adversaries, including Sonia Gandhi and Rahul Gandhi. His initiatives to push the bureaucracy to deliver results made him the talking point among urban Indians. His foreign policy moves—focussing on SAARC, BRICS and powerful nations, such as Japan, China and the US—sent the right signals. Budget 2014 fell quite short of expectations, but gladdened the hearts of investors.

n contrast, Shah’s image has remained controversial—from his Gujarat days to becoming the BJP president. He has emerged as a near-perfect Hindutva hardliner. After the 2002 Gujarat riots, when he was appointed the home minister, Shah was asked to pursue a two-pronged socio-politico-religious strategy. Shah had to ensure there were no other riots in Gujarat, for that would have certainly finished Modi’s political career. But he also had to simultaneously and covertly continue with Modi’s majoritarianism. The solution, some critical analysts opine, lay in a series of “encounters”, which were allegedly aimed against the Muslims. The state has vigorously opposed this allegation, maintaining that these were “real” pre-emptive operations based on solid intelligence against militants conspiring to kill Modi. The fact remains that Shah, who has steadfastly maintained that the encounter bogey was a political conspiracy against him, was arrested in one of the cases, and given bail. Despite criticism from NGOs and

human rights activists, the strategy worked. Modi romped home with two assembly wins, in 2007 and 2012, with huge majorities. Shah was accused of playing a “polarizing” role in the 2014 general elections, especially in Uttar Pradesh. The party used the Muzaffarnagar riots in the state to consolidate Hindu votes; Shah was banned from campaigning, and then allowed to do so, by the Election Commission. One of his speeches urged voters to reject Muslim candidates, as Muslims in the area had raped, killed and humiliated Hindus. Samajwadi Party leader Azam Khan dubbed him “Gunda Number 1”. Yet again, the plan worked; BJP won 73 of the 80 seats in Uttar Pradesh. Party insiders admit that the so-called polarization energized workers, made the RSS happy, and united the Hindus to support the BJP. As the party president now, Shah has to achieve the same results in the forthcoming assembly elections. The reason: while the BJP has an absolute majority—and the NDA has near-two thirds—in the Lok Sabha, it is nowhere in the picture in the Rajya Sabha. At present, the NDA has 65 of the 245 seats in the Upper House. Victories in the coming assembly elections will enable the BJP (and the NDA) to increase its numbers in the Rajya Sabha over the next two to three years. This will also help the BJP to pursue its social, economic and political agenda by pushing through important legislation in parliament. Most importantly, this is the best way to appease the hardline factions within the RSS. Already, the induction of Ram Madhav, a senior RSS pracharak, in the BJP is being seen as the move in the right direction.

he RSS was discontented with Vajpayee’s liberal face. It had issues with Advani for his failure to stand up to Vajpayee; it never forgave Advani for failing it repeatedly. It has no such qualms about either Modi or Shah, as they have decided to involve the ideological wing in all crucial decisions of the government. According to news reports, RSS has also adopted a practical and pragmatic approach towards both the party and government. Modi welcomed and encouraged the RSS to present its version of

the country’s vision. But the PM has the final say. RSS is happy if 5 out of its 10 recommendations are implemented. As a close and longstanding BJP watcher says: “RSS has now entered the party and government.” The working of the NDA-BJP-RSS triumvirate has excited individuals within the BJP and the RSS. After Shah's appointment as president, Dr Harsh Vardhan, central health minister with strong RSS links, tweeted: “Lets ring in a new India. With Modiji on Raisina Hill and Amitji Shah in Ashoka Road (party’s headquarters) BJP will be irrepressible. Greatest combine in politics.” Tarun Vijay, current Rajya Sabha MP, tweeted that Shah was “a man of the organization. Inspired with Sangh values. His dynamism & straightforwardness won us UP. Great times ahead for BJP.” But do “achche din” for BJP translate into good days for India too? IL

COUNTDOWN BEGINS Shah has his task cut out as the party head. Ensuring electoral victories for BJP in the coming assembly elections is a major challenge for him

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RIGHTS/ ngos/fcra regime

round the time when the 82 page note compiled by the Intelligence Bureau (IB) against NGOs or non-governmental organizations receiving foreign funds made headlines, another tome was in circulation in the capital. In a city where documents are routinely sourced at a cost by lobbyists and lawyers for their clients, this one made interesting reading. The note, offered in spiral bound, was a compilation of court records, confidential documents and e-mail exchanges that mentioned countless charges against Teesta

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Setalvad, the Mumbai-based civil rights activist. Compiled by Manjula Gupta, a Supreme Court advocate, it offered evidence against Setalvad, whose NGO, Citizens for Justice and Peace (CJP), is a co-petitioner seeking criminal trial of Narendra Modi, the former chief minister of Gujarat and Indiaâ&#x20AC;&#x2122;s current prime minister, along with 62 other politicians and government officials, for complicity in the pogrom that wreaked havoc in Gujarat in 2002. Titled, â&#x20AC;&#x153;Teesta Setalvad: The Queen of Perjury, Lies and Deceit,â&#x20AC;? the report revolved around a host of issues, important ones being how Setalvad allegedly pushed for false affidavits to be filed in the Naroda case in

The Empire Strikes Back like the upa, the nda turns the heat on ngos, charging them with financial irregularities, and fomenting social and political unrest By Shantanu Guha Ray Gujarat, paid cash to riot witnesses to file false statements, illegally dug up graves of riot victims, violated Foreign Contribution (Regulation) Act (FCRA) and Companies Act to receive global grants and used the cash meant for rehabilitating riot victims and their families for personal benefits that included dining at glitzy hotels, hair treatment at expensive spas, purchasing hi-end dress material from top-end stores, and buying liquor and jewelery. The document, it is reliably learnt, found its way to the home ministry, whose officers are in the process of checking the antecedents of Setalvadâ&#x20AC;&#x2122;s organization along with records, backgrounds and operations of near-

ly 30,000 NGOs in India. Setalvad has said she is not worried and would answer queries when posed by the ministry. As for liquors, she quipped she was in Maharashtra and not in a prohibition state like Gujarat. THE HEAT IS ON The home ministry exercise, claim insiders, is being conducted to decide if NGOs can continue to receive grants under FCRA, 2010. On paper, this is the result of changes the UPA government brought to the 1976 law in 2010, requiring all NGOs to renew their clearances every five years. After the renewed clearances in 2011-12, NGOs required a INDIA LEGAL August 15, 2014

RIGHTS/ ngos/fcra regime

PROTECTING FARMERS INTEREST NGOs have played a vital role in organizing protests against GM food in India

In 2011-12, NGOs got `11,546 crore. Of the total foreign grants, 20297 were below `1 crore. Politically unstable nations like Rwanda, Angola and Latvia were involved. fresh one in 2015 or 2016. But now, it is coming in handy for the BJP-led NDA government, which wants to keep a tab on the NGOs. “The home ministry survey will happen when all NGOs, or at least majority of them, are under fire from the government because of their international funding,” points out Praful Bidwai, a columnist and anti-nuclear activist. But those in the government are shielding themselves with the guidebook. The rules are clear; they say once an NGO applies, the ministry will complete verification within 90 days. Bidwai says the NGOs are preparing for worse, a total chaos in 2016. After all, in the last spring cleaning in 2011-12, the ministry had carried out 132 inspections. And many had then faced severe difficulties. Under the NDA regime, the inspections may be more intense. On the flip side, there are ample chances

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that the ministry’s work will be reduced; it may take less time then the previous survey. For the record, 43,000 NGOs are officially registered but no one knows how many are operational. On paper, NGOs got the clearances right after the 1976 law was passed, a year after the emergency. But there are others whose clearances are on hold. Worse, there is no provision for an NGO to surrender a clearance even if it has stopped working. “As a result, many NGOs are holding on to their clearances for years despite closing shop,” says Harsh Jaitli who heads the Voluntary Action Network India (VANI). INSUFFICIENT DATA The NGO business is a peculiar one, ostensibly because the government just cannot find out how many NGOs are working and how many are dead. Consider the case of an estimated 4,000 NGOs, which drew flak for not filing returns on time. Even those who did, found their records missing because the ministry has an archaic method of maintaining records. And each time a division shifts office, the first things that go missing are the records. It was after two big cases of records missing from the foreigner division office in 2010-11

that officials started shifting to an online process. Not just the NGOs, even the home ministry is under a judicial heat. Recently, the Delhi High Court gave the ministry six months to probe foreign funding of two NGOs for getting funds from Vedanta Resources, a UK-based company, allegedly in violation of the law. The ministry, the court noted with regret, had failed to take action against the two NGOs. As per the government records, NGOs in India had received `11,546 crore from various international organizations in 2011-12, the majority coming from the United States. Of these, 20,297 grants were below `1 crore and 148 above `10 crore. Interestingly, some of the funds came from countries like Rwanda, Latvia, Angola, Tonga, Malawi and Suriname—all in troubled political state. NOT ALL LETHAL “The BJP government is pushing a lethal agenda to silence the work these NGOs are doing because of sheer corporate pressures,” says Brinda Karat, MP and senior Politburo member of the CPM. Karat says it is unfortunate that in India, the government defines the FCRA as a national security legislation piece but it does not define public interest. “Actually, the term is used by various governments to suspend or cancel a clearance. Do not forget that when the UPA government suspended Indian Social Action Forum’s clearance in the public interest, the decision was dismissed by a court,” says Karat. Ministry officials counter her argument, saying suspension of FCRA permission followed by cancellations is a long process. “We normally avoid it because it is difficult to defend such decisions in court. Under this law, punishment starts before investigation. The first action is freezing of the FCRA account. Now, the probe takes years but law requires a decision in six months,” says an official requesting anonymity. Officials also say there is no doubt some of the NGOs have a distinct anti-government agenda but it would be wrong to paint all with the same brush. The ministry, till date, has not accused a single NGO of using the FCRA process to launder money.

Medha Patkar's Narmada Bachao Andolan, which has been fighting for the rights of the people affected by projects in the Narmada Valley, is mentioned in the IB report.

Teesta Setalvad’s NGO, Citizens for Justice and Peace, has been accused of misusing foreign grants for rehabilitating riot victims and their families in Gujarat. She remains unfazed.

Columnist and anti-nuclear activist Praful Bidwai feels that the home ministry’s scrutiny against NGOs will only happen if they come under fire from the government over foreign funding.

Anti-nuclear activist and AAP party MP SP Udaya Kumar says the center is targetting him for protests against the Kundankulam nuclear plant and feels threatened after the IB report. INDIA LEGAL August 15, 2014

RIGHTS/ ngos/fcra regime

NOTHING ANTI-NATIONAL (Above) A group of anti-nuclear activists at a sit-in dharna against Kudankulam Nuclear Power Plant

August 15, 2014

“Some of the donors, like bilateral aid agencies from developed nations, also have an agenda. There are cases where brokers have worked with NGOs to get clearances for the right prices. But it would be ridiculous to claim that you can dent a nation’s GDP by spending, say `10 crore a year, in a public campaign,” says an official. The FCRA is a contentious law. It came in 1976, at the height of the Emergency imposed by Indira Gandhi, prohibiting political parties and “organizations of political nature”, civil servants and judges, as also correspondents, columnists and editors/owners of registered newspapers and news broadcasting organizations—and even cartoonists—from receiving foreign contributions. Interestingly, when this FCRA was debated in the Rajya Sabha on March 9, 1976, old timers recall that the term “CIA” (Central Intelligence Agency) was mentioned at least 30 times by different legislators, while “Lockheed Martin” (a military aerospace corporation) came up at least six times in the context of alleged instances of Americans pumping dollars into governments worldwide to buy influence during the Cold War. Khurshid Alam Khan, father of former

minister for external affairs Salman Khurshid, told a stunned house: “The CIA’s doings all over the world have very clearly indicated as to what could be done by foreign money and foreign interference.” And in 2010, an altogether different parliament, consisting of opposition members who had not been imprisoned like those in 1976, unanimously voted to update the law through amendments. A parliamentary standing committee that examined the bill was headed by the BJP’s leader of the opposition in the Lok Sabha, Sushma Swaraj—she is now the current external affairs minister— and had no major objections to it. Except, the concern was focused on what many felt was an increasing influence of NGOs as institutions of civil society in India. Almost like the term CIA, the term NGO found at least 40 mentions during the Rajya Sabha debate on the 2010 bill. Now, New Delhi wants to react. Acting on the IB report, which pointed out that a few NGOs were involved in political activities that were not allowed under FCRA, it wants all funding and activities to be transparent. The NGOs are distinctly uncomfortable. Hit by the charges made by intelligence

agencies, some allege pro-Hindu NGOs of receiving donations from abroad and using the same for “communal agenda”. Once the IB report made headlines, leftleaning groups talked of funds garnered by RSS and Ekal Vidyalaya Foundation of India (EVFI), an affiliate of BJP. The EVFI receives `20 crore annually from abroad to run single-teacher schools patronized by the RSS. Some say the schools have a communal agenda but others have backed these for exemplary work in the countryside. On the other hand, sympathizers of the RSS point to larger global funding from Christian organizations for schools, healthcare, political activities and even news organizations in India. By all standards, there remains a huge, grey area in NGOs and their operations across various sectors in India. The slugfest is likely to continue. BELLIGERENT GOVERNMENT Anti-nuclear activist and Aam Aadmi Party’s Lok Sabha candidate from Kanyakumari, SP Udaya Kumar says the charge that he was working at the behest of foreign powers to subvert India’s development was baseless because the IB offered no evidence to support these claims. “I and my family feel threatened after the IB report was made public,” he said in a telephonic interview. The IB report claimed Udaya Kumar, active in protests against the Kudankulam nuclear plant, had “deep and growing connections with US and German entities.” It goes on to say that the activist received an “unsolicited contract” from an Ohio State University institute, through which he got thousands of dollars from the US for filing fortnightly reports. Udaya Kumar says his work had nothing to do with nuclear energy. “The government wants to discredit my research that goes against the government,” he further said. But New Delhi is in no mood to relent. Ever since the prime minister went public with his discomfort about the foreign funding of NGOs in issues sensitive to India’s economic growth, bank accounts of four NGOs in Tamil Nadu had been frozen, with the home ministry accusing them of diverting

FOR SOCIAL UPLIFTMENT The NGO Akshar is doing yeoman service for children in poverty

The NGOs are distinctly uncomfortable. Hit by the IB charge, some are taking the battle to a different level by charging pro-Hindu NGOs of receiving donations from abroad. funds to fuel the agitation. Big Brother is on the prowl, all NGOs agree. The new regulatory mechanisms include the stringent FCRA, 2010, which came into effect as of May 1, 2011, to regulate funding of NGOs from abroad. Worse, a list of 77 international NGOs working in India has been circulated to Indian missions abroad for “appropriate action”. The list, mostly from the US and Europe, was issued last year on two grounds—financial irregularities and the kind of work the NGOs were doing to create social unrest. In short, there will be a distinct change in the climate for international funders and NGOs operating in India, especially when it comes to get foreign funding. Interestingly, the new FCRA regime has not gone unnoticed by the international community. UN Special Rapporteur Margaret Seggakya has already expressed her concerns to the United Nations Human Rights Council in Geneva, arguing how some of the provisions of the new law “may lead to abuse by the authorities when reviewing applications of organizations, which are critical of authorities.” IL INDIA LEGAL August 15, 2014

CRIME/ badaun rape

A GRAVE CRISIS

did the cbi investigate the case with preconceived ideas and motivated intent? social experts and women activists allege so By Shobha John

SEEKING RETRIBUTION Protests against Badaun rapes

UNI

August 15, 2014

ndia has the dubious distinction of being the rape capital of the world. Yet, the alleged gang rape and murder of two teenage dalit cousins, aged 14 and 15 years, in Katra village of Badaun district in Uttar Pradesh (UP) on May 27 was unparalleled and evoked national outrage. Questions have been raised about whether they were actually raped. Further, caste and property issues have muddied the waters, with hints of a cover-up by the state police under pressure from higher castes. After the Central Bureau of Investigation (CBI) got the nod to exhume the bodies from the graves on the banks of a rising Ganga, questions are being raised about the processes being followed by the premier investigation agency. The graves are already under water and exhumation has been aborted. It all began on the night of May 27, when the two girls went out into the fields to answer natureâ&#x20AC;&#x2122;s call and did not return home. The police, the parents claimed, refused to lodge an FIR. The girls were finally found hanging from a tree the next morning. A post-mortem examination by a team of three doctors on May 29 confirmed that the girls had been brutally raped and died from strangulation. However, on June 12, UP Director General of Police AL Banerjee cast doubts about whether one of the girls

was raped, and said the death may be related to property issues within the family. This led to uproar among women activists, who said he was creating confusion and trying to divert media attention from the case. Later, five accused—brothers Pappu Yadav, Awadhesh Yadav and Urvesh Yadav and constables Chhatrapal Yadav and Sarvesh Yadav—were arrested in this case. BUREAU UNDER SCRUTINY Seeing the snowballing effect of this ghastly rape and the deteriorating law and order situation in UP, where crimes against women have increased, a special investigation team (SIT) of the CBI was set up to probe the incident. On June 12, the CBI began investigations and decided to exhume the bodies for a second round of post-mortems. However, CBI’s subsequent actions were flailed by activists and experts. The Association for Advocacy and Legal Initiatives (AALI), a women’s rights organization in Lucknow, which has been providing socio-legal support to the victims’ family, released a press release recently, raising uncomfortable questions: The CBI’s decision to exhume the bodies was questioned, as under the law, it can be done only with the valid consent of the victims’ family. But this hasn’t been the case. The family, claims AALI, is “grief-stricken, helpless and bewildered and has expressed discomfort and unease with the proposed exhumation.” BLAMING IT ON PROCEDURES The CBI says the autopsy was bungled as it was done late at night and is a violation of the procedure prescribed for autopsies. However, AALI says that the Mumbai-based Center for Enquiry into Health and Allied Themes has opined that there is no legal bar on conducting autopsies at night. The only requirement is that there should be adequate light. The video recording of these autopsies shows that there was adequate light. The CBI further states that a single doctor with no prior experience conducted the original autopsy, and now a panel of doctors would conduct it after exhumation. But AALI says the first post-mortem report states that it was conducted by a panel of three doctors: Dr Ranju Kumar Gupta (physician), Dr Avdhesh

PROMOTING INJUSTICE The police headquarters in Badaun

Kumar (surgeon), both from District Hospital, Badaun, and Dr Pushpa Pant Tripathi (gynaecologist and obstetrician, District Female Hospital, Badaun). Therefore, the CBI’s claim does not hold. CBI says that the autopsy report was only suggestive of rape, and did not conclusively prove it. AALI quotes Vrinda Grover, a Supreme Court lawyer, on this: “Doctors cannot give a medical opinion whether rape has occurred or not because ‘rape’ is a legal term. The post-mortem report of both girls records injury around the vaginal orifice and abrasions and injury on the hymen. It would have been more appropriate for the doctors to say that there are signs of use of force, suggestive of sexual violence. Moreover, final opinion can only be given after receiving reports from the Central Forensic Science Laboratory of the vaginal smears and clothes sent to it.” These factors, says AALI, show that the post-mortem reports have little or no flaws in the procedure or finding, leaving no valid reason for CBI to seek exhumation. TIME FACTOR Dr Jagdeesh Reddy, a Bangalore-based forensic doctor, was quoted by AALI as saying that since so much time had lapsed since the death of the girls, much of the evidence would have vanished. “With advanced stages of decomposition of the bodies, it would be difficult to comment about skin and mucosal injuries with 100 percent accuracy,” he said. Will

What media said For the record, the report of narco test may be helpful in probe, but it is not admissible in any court and cannot be presented as evidence to prove the charges. India Today, June 24 The slippers (of the elder sister) were allegedly retrieved (by the CBI) from the residence of the victim’s family, which has sharpened CBI’s doubts about the family. Hindustan Times, July 17 Even after the hue and cry raised over this incident, the police have not improved their working and are still trying to save Yadav goons. BSP MLA from Dataganj, Sinod Sakya, under whose constituency the villages fall, being quoted in The Times of India, July 14 INDIA LEGAL August 15, 2014

CRIME/ badaun rape

HAPLESS VICTIMS The women in Badaun are being made targets in caste wars

UP’s dismal record June 2, 2014: A 22-year-old girl was allegedly gangraped, forced to drink acid and strangulated in the Bareilly district June 2, 2014: A 7-year-old girl was sodomized at Rampur Kalan in Sitapur district June 2, 2104: A 5-year-old girl was abducted and sexually assaulted by a minor boy in Maholi July 17, 2014: A woman was gangraped and tortured before being murdered 8 km from Jabrauli

August 15, 2014

this make it easier for the CBI to rule out the suggestion of rape? The CBI’s handling of the case and treatment of the family, says AALI, is “puzzling, if not worrying.” The fathers and two uncles of the murdered girls were subjected to lie detector tests, even though such tests have no value before a court, it said. A Supreme Court (SC) judgement in the Selvi and Ors vs State of Karnataka judgment was quoted as an example: “Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual, and amounts to ‘cruel, inhuman or degrading treatment.’ Even when the subject has given consent to undergo any of these tests, the results cannot be admitted as evidence because the subject does not exercise

conscious control over the responses during the administration of the test.” So why did the CBI whisk away the victims’ kin for more than 72 hours and keep them in an undisclosed place, AALI asks. Is there a move to manoeuvre the investigation and divert it away from the accused persons? The media too is in a tizzy and is taking sides (see box). There have been suggestions that the CBI has an agenda to shift the blame onto the family and pursue this not as a rape/murder case but as one of honor killing. The family has claimed it is being threatened by the police and upper castes. Hema Bhadwar Mehra, a writer and social activist who has worked in these areas, says: “One can imagine the trauma and fear the family of the victims is undergoing.” The fact that this incident happened in the badlands of UP is not surprising. An independent report on crimes against women in UP by Mehra and Shefali Misra found that UP’s Gender Development Index is the second lowest in India. Records from the National Crime Records Bureau indicate that the maximum number of dowry deaths, murders and kidnappings occur in this state (2012 figures). The report says: “So shocking is the state of affairs, that crime even occurs under the nose of the districts’ highest ranking judicial officer.... Often, the police and administrative officers ignored the law related to crimes against women and took a biased view at the very onset and acted as the judge and the jury rolled into one.... “We were told that a combination of local equations and norms such as caste, class, tradition and patriarchy increased the prevalence of violence against women. We were also informed by locals that strong caste dynamics existed as a backdrop to all these incidents. Most attackers were from the Yadav community against dalit/OBC (muraon).” While it will take years for these caste wars to be obliterated and education to uplift people, the CBI must get to the bottom of these gruesome murders and deliver justice to the victims and their families irrespective of class or caste considerations. It owes it to the women of India. IL —With inputs from Akshat Agarwal

TRENDING/ designer drugs

Bath Salt for that high india has become the hub for making legal drugs, which are used as hallucinogens, both domestically and abroad. these are the new “designer” drugs By Ajith Pillai

T is known internationally as “legal highs” or designer drugs. Synthetic substances which are manufactured as medications but which are substitutes for traditional hallucinogens, uppers and downers. And India and China are the manufacturing hubs for these drugs, which are being introduced in the international market at a pace that is outwitting drug enforcement agencies in UK, Europe and the Far East. In fact, earlier this year England’s home office minister, Norman Baker, sounded the alarm bell after it was established that 58 deaths in the UK last year were linked to the abuse of new synthetic drugs that were being sold on the streets and in the party circuit. Baker was quoted in the media as saying: “We’re in a race against the chemists of new substances being produced almost on a weekly basis in places like China and India. They come in here and are inaccurately and unhelpfully called legal highs—they are actually illegal and unsafe.” One of these popular drugs (banned in Britain) is sold in innocuous packaging as bath salts but it actually contains Methylenedioxypyrovalerone (MDPV) a psychoactive stimulant containing mephedrone, a narcotic which acts like amphetamines. There are several street names for it—Meow-Meow, MCAT, Drone, Bubbles, Cloud 9 etc. Then there is Methylone, the alternative to MDMA or ecstasy, and Ketamine, an anaesthetic used largely in veterinary and to a lesser extent in human medicines. All

Illustrations: Amitava Sen

INDIA LEGAL August 15, 2014

TRENDING/ designer drugs

these drugs are bulk manufactured in India. There are hundreds of Indian manufacturers who are listed on Indiamart.com, one of India’s “largest B2B market place,” as bulk manufacturers of mephedrone. These companies are spread across the country in Kerala, Gujarat, Maharashtra, West Bengal and Bihar. One Mumbai-based supplier’s hard sell is rather telling: “Psychological manifestations vary in severity between pleasant dream-like state, vivid imaginary hallucinations and emergence delirium.” Another company based in Port Blair is more conventional: “What can be better than taking a wonderful bath filled with this magical salt after a stressful day at work? As a result you get a miraculous relaxation!” Meow-Meow is snorted, injected or is heated and its fumes inhaled. If India has bulk manufacturers of mephedrone then some amount of the drug is bound to find its way into the local market. Dr Yusuf Merchant, president of the Mumbaibased Drug Abuse Information Rehabilitation and Research Center, who has been treating drug addicts for the last thirty years, says that things had changed drastically in the last decade. “Earlier we had heroin, its cheaper crude form, brown sugar, and cannabis. Cocaine was also around but has always been

August 15, 2014

priced prohibitively high for the average party animal. But we now have these relatively cheap legal highs which come in several forms and which are very dangerous because these formulations work on the mind. Physical addiction like heroin abuse can be treated through detoxification and rehabilitation but getting a disturbed mind back on keel is tricky business,” he says. Among his current patients are school kids and teenagers, who are in a mentally disturbed condition—thanks to using party drugs. They require sensitive care to be brought back to normalcy. “I would go so far as to say that these new drugs, when it comes to treatment of those abusing them, are deceptively more dangerous than heroin. They can also psychologically scar an abuser,” says Dr Merchant. Methylone, the new alternative to MDMA or ecstasy, is also bulk manufactured in India. It came into focus after it began to be sold as a “room odourizer” in Europe a few years ago with this direction on the label: “Do not ingest. Keep away from children. Never use more than one bottle.” In the party circuit it came to be known as “Explosion” and consuming it orally was said to give the same buzz as ecstasy. Indian pharma companies openly offer methylone on the internet. Their primary target is the exports market, where the profit margins are huge—over 300 percent— although innovative packaging is essential to evade drug authorities abroad. But getting it out of India is easy since it can be packaged as innocuous medication and is not detected by sniffer dogs as are conventional drugs like heroin, cocaine or hashish. The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, has over 200 drugs which are banned or come under the category of controlled substances. In the latter grouping are several formulations, which have medicinal uses and are therefore manufactured legally. This is where the illegal production comes in and crosses permissible limits. Ketamine is an anaesthetic that is used as an emergency pain killer and to treat bronchospasm in asthma patients. But it is also being abused as a party drug. When consumed in lesser doses than when it triggers a condition seen during general anaesthesia, it produces a “floating feeling” of being detached

from the physical body. Those injecting, snorting or taking the drug with drinks also speak of experiencing the “K-hole” when they have visual and auditory hallucinations similar to the one produced by LSD. There have been several seizures of illegal export consignments of Ketamine, following complaints from countries like Thailand which consider the drug as a narcotic. Incidentally Chennai is the hub through which Ketamine is routed abroad. According to Narcotics Control Bureau (NCB) officials, a kilogram of the drug, which costs `35,000 or thereabouts in India, fetches over `3 lakh in the international market. Domestically, the illegal market is very miniscule, since the drug is consumed among a select young urban crowd at rave parties or clubs. Typically, friends get together and organize the drug for a few hundred rupees to “trip out.” Since designer drugs are not being pushed in an organized manner like cocaine and heroin, the enforcement agencies do not focus much attention on them. There is also no societal or governmental pressure to check the misuse of legal highs. Dr Merchant points out that it is not seen as a problem yet. Parents are quite unaware that their children are abusing these drugs. Unlike heroin or brown sugar, where there are telling physical signs, the only manifestation in the legal highs are unusual behavior—paranoia, depression or a sense of elation —which may not immediately be traced to any drug use. In such a situation, the victim might be treated for behavioral disorders which are a part of growing up in modern society.

he problem with cracking down on designer drugs is that they surface in new avatars every now and then. Given this, NCB sources say it is difficult to keep track of the emergence of a new party drug unless close tabs are kept, which is not possible, since much of its efforts are directed at cracking down on the syndicates that deal in harder drugs like cocaine and heroin. They point out that the NDPS Act frequently updates the list of banned substances but there is no guarantee that it will cover every formulation that contains a mind altering substance.

Bath Salt, Meow-Meow and Ketamine are the new legal-illegal drugs that are consumed by the youth to experience dream-like state and hallucinations. As it is, the NDPS Act is seen as being rather stringent, so giving it even more teeth may not be the solution. Perhaps the drug control authorities, who monitor pharmaceutical companies, should work in tandem with the NCB to report unusually high production of a particular drug which falls into the category of controlled substances. For example, a few years ago a pharma company came under the scanner when drug inspectors noted that it was producing and despatching huge volumes of cough syrup containing codeine, an opiate, to the North East. The quantum released in the region was way beyond the normal demand. Investigations revealed that it was meant to tap the market among drug addicts. But there are several loopholes in our pharma laws that can be exploited. In the 1980s, a Mumbai-based company promoted by the brother of a prominent Bollywood star, got media attention in England when it was identified as the supplier of steroids being illegally sold in health clubs in that country. When confronted by the media, the management of the firm said that it was doing nothing illegal and that manufacturing and exporting steroids was perfectly legal in India and that it was not responsible for its abuse abroad. At present, any crackdown on those manufacturing legal highs is because of alerts and tip offs from countries abroad. Britain has been voicing its concern. Clearly a system has to be evolved to ensure that we do not allow such drugs to be exported out of the country. That will also ensure that domestic availability is contained. Remember, heroin was considered a rich man’s problem till brown sugar came in and began to be abused by the man on the street. The health authorities also need to go to elite schools and make the young aware of the dangers of the so-called legal highs. At present there are enough websites and blogs which claim these drugs are safe and debunk those who advocate against their abuse. IL INDIA LEGAL August 15, 2014

PROBE/ direct selling / amway

amway sold a dream luring people with promises of earning lakhs of rupees a month. but critics say it violated laws and cheated its customers By Shantanu Guha Ray

OR over two months, Amway India CEO and MD William Scott Pinckney spent most of his time either reading newspapers, novels and cartoon strips, or taking walks amidst the mango orchards at Cherlapally Central Jail, a 120-acre correctional facility located 28 kilometers from Hyderabad. Whenever his mind got distracted or idle, he thought about his release. He got bail a few days ago. Whenever he met his lawyers, Pinckney, the 65-year-old regional head of one of the world’s largest multi-level marketing (MLM) or direct selling firms, maintained that Amway had “not done anything wrong”. It was because of this conviction that Pinckney continued to monitor the firm’s operations, including its earlier lobbying to get him out of jail and push for changes in the laws, especially the Prize Chits and Money Circulation Schemes (Banning) Act (PCMCSA), 1978. The Kurnool Superintendent of Police, Raghurami Reddy, whose colleagues arrested Pinckney in May this year, says the focus of the Amway probe revolves around alleged violations of PCMCSA. The police acted after several criminal complaints were filed against the company in Hyderabad, Guntur, Vijayawada and Prakasam in Andhra Pradesh, as well as

Khammam, Warangal and Medak in Telangana. The Amway India CEO was earlier arrested in Kerala. The Andhra Pradesh High Court rejected Amway’s plea that its marketing scheme did not fall under the act’s provisions. The court declared it as an illegal “money circulation scheme”. Worse, Amway and Pinckney got no relief from the Supreme Court either. Why did the US-headquartered firm find itself in trouble in India? Almost two decades ago, Amway was seen more like a pyramid or MLM scheme. Over time, it evolved more like a direct-selling marketing scheme. Amway dropped the “joining fee” for distributors and removed the clause of mandatory enrolment of new distributors. According to its website: “The core of the… opportunity is the sale of quality Amway products to retail customers…. The Amway Sales and Marketing Plan does not compensate anybody for simply recruiting others as Amway Business Owners (read: distributors).” Under the new Amway scheme, distributors can buy discounted products and re-sell them at the printed retail price to earn profits. They can earn 6-21 percent “bonus” based on the “volume of distributor’s individual purchases… during the month”, and commissions on sales by the “sales group” recruited by the distributor. Globally, direct selling is a $83 billion industry, with 30 million sales people. Since its birth in 1959, Amway has emerged as a multibillion company, with 3 million distributors, 12,000 employees, and presence in 80 nations. It was the brainchild of two founders, Rich DeVos and Jay Van Andel. Individuals, NGOs, government officials and investigators have dubbed it as a clear-cut Ponzi scheme. They contend that Amway’s business is to fool people with exaggerated

SCAMWAY? 52

August 15, 2014

promises and cheat them. Most individuals, who become its agents, lose money.

ays Hyderabad-based DIG of Police, VC Sajjanar, whose investigations nailed Amway: “It is trying to skirt the issue. PCMCSA prohibits any entity from conducting a money circulation scheme and enrolling members for it, or from receiving or remitting money in pursuance of such a scheme. But it went ahead with its operations.” Sajjanar has acted against other global MLM firms, such as Japan Life and Gold Quest. In July 2007, the Andhra Pradesh High Court ruled that Amway’s scheme fulfilled two ingredients of Section 2 of PCMCSA. The first was that it helped distributors to make quick or easy money. This was implicit in Amway’s 6-4-3 arrangement. According to SK Mastan Vali, an advocate who filed a case against the company, the distributor at the top of

Anthony Lawrence

The Andhra Pradesh High Court held that Amway’s marketing plan was an illegal money circulation scheme and violated PCMCSA.

INDIA LEGAL August 15, 2014

PROBE/ direct selling / amway

the 24 members at the third level sell their products, X gets an extra `1,14,480. And if the 72 persons at the fourth level achieve this target, he receives another `6,83,300.

PLEADING NOT GUILTY Despite his arrest, Amway India CEO and MD William Scott Pinckney claims that the company has not done anything wrong. He recently got bail.

August 15, 2014

the mini-pyramid has to enroll six people, each of whom have to recruit four people each. The 24 individuals in the third layer—6 x 4— have to then enroll 3 persons each, or a total of 72. Thus, there are 103 (72 + 24 + 6 + 1) people in the chain. The order said that “the money which the member at the top of the line gets depends upon the members he enrolls or the members enrolled by him enroll”. As an example, the two judges, Justices GS Singhvi and CV Nagarjuna Reddy, observed that if the top member, say X, sells products given to him, he earns `12,420. If the six people he sponsors do the same, he earns an additional `23,760. If

n addition, the company made easy or quick money. Amway had 4,50,000 members at the time of the high court order. Each member had to sell products worth `2,000 in a month to qualify for commissions. Logically, “Amway would automatically get a business of the quantum of `1,080 crore (4,50,000 x `2,000 x 12 (months)) per annum which would yield astronomical profits….” The judgment said that this was akin to quick or easy money, although the company may “conveniently” refer to it as “turnover by sale of products”. Amway sells the dream to potentially earn lakhs of rupees every month; every member has to initially pay `4,400, of which `1,800 is for subscription fee, license fee, business kit, etc. The latter payment, said the High Court, was “a consideration for promise (of future earnings)… at the time of his enrollment”. Thus, it offered a “chance or opportunity of making quick or easy money, depending on an event or contingency relative to his enrollment”. It fulfilled the second ingredient of Section 2 of PCMCSA. Even Amway realizes that its scheme is a borderline case, which may explain its intensive lobbying to amend the PCMCSA. In a note, the company said that it “must be amended to clarify that it does not cover sales of real products and services”. The Indian Direct Selling Association (IDSA) wants a change in the act so that it defines pyramid marketing schemes, identifies product-based money circulation schemes and differentiates them from direct selling and its incentive structure. What has irked Amway is the FIR culture that led to Pinckney’s arrest. Amway India’s CEO told his lawyers that FIRs were “abused” by law-enforcing authorities in Andhra Pradesh. "Finally, the FIR system that has resulted in this gross miscarriage of justice and deprivation of Mr. Pinckney's human rights must be reviewed and reformed…,” Amway said in its note. The note added that the act “allows the

investigating officers powers to seize, seal and arrest, based on complaints filed by persons who cannot even be said to have been personally affected. We remain deeply concerned about his continued incarceration and the ongoing opposition to his release.” Amway global President Doug DeVos sought the intervention of the Narendra Modi government. “We understand that the new Union government in New Delhi played no role in this police action and hope they will help in the immediate release of Bill (Pinckney) so he can quickly and safely return to his family,” DeVos said in a video message. PCMCSA was promulgated in 1978 after large-scale loot by dubious companies and an extensive report by the James Raj Committee (1974). The committee called for a ban on chit funds and money circulation schemes, and argued that they were prejudicial to public interest. Despite the act, MLM companies flourished across India.

awyer Mastan Vali, in a powerpoint presentation, listed 40 MLM firms, which operate or operated in India, and against whom FIRs were filed for cheating individuals of sums ranging from `10 crore to `5,000 crore. He claimed that MLM firms like Amway contravene, apart from PCMCSA, clauses of other acts, such as Sale of Goods Act, 1930, Contract Act, 1872, and SEBI Act, 1992. Reddy says that “there are big holes in what Amway claims and what it practices”. There are other problems with Amway India. The Enforcement Directorate issued a showcause notice, alleging that the firm repatriated `8,000 crore to the US, a violation under the Foreign Exchange Management Act. Reddy claims there is a probe on a few products sold by Amway without permission from the Food and Drug Authority. A senior official in the Prime Minister’s Office feels that Andhra Pradesh police has a water-tight case against the company for selling “nutraceuticals” recommended by doctors, whose wives and relatives were Amway agents. The central government may introduce provisions in its foreign direct investment policy to curb the mushrooming of global MLM firms. As of now, the Foreign Investment Promotion Board (FIPB) does not approve

Multi-level marketing firms like Amway are also said to have flouted clauses of other acts, such as Sale of Goods Act, 1930, Contract Act, 1872, and SEBI Act, 1992. proposals by MLM, direct selling and network marketing companies. EAS Sarma, former secretary in the government, warned Arvind Mayaram, secretary for economic affairs: “I apprehend that the FIPB route will be sought to be misused to obtain cover for these MLM companies, which are nothing but a way to swindle the public to raise illegal funds to enrich unethical and antisocial persons.” Amway, however, contends that its business is legitimate. It says if the PCMCSA continues to be “misused”, it will impact its investments in India, including the `500 crore manufacturing facility in Tamil Nadu that will be operational later this year. The company, like the controversial Sahara India Pariwar, carried a series of half-page advertisements in mainline English and regional dailies to clarify its business model. However, the onus lies on the central and state governments to clarify whether MLM, direct selling and ponzi schemes are the same. They also need to make it clear whether these are illegal. There is absolutely no need to strengthen PCMCSA. IL

UNDER A CLOUD Amway is facing legal action for making easy and quick money through its marketing scheme

INDIA LEGAL August 15, 2014

CONTROVERSY/ punishment for forgery

When Fiction Becomes Truth chennai judge’s remark that forgers should have their fingers chopped off sparks off a debate on retributive justice and usage of forged documents By Neeraj Mahajan In an interesting legal battle, a Chandigarh court ruled that the will of Maharaja Harinder Singh Brar, the princely ruler of Faridkot, was forged more than 30 years ago. The maharaja was allegedly suffering from depression after the death of his only son in a road accident, when the so-called will was fabricated by his lawyers and servants. None of his family members was a direct beneficiary in the forged will. Magistrate Rajnish Kumar ruled that the maharaja’s legal heirs were entitled to the 200-billion-rupee estate. One of the richest royals, the maharaja owned several forts, palaces and prime property in Delhi and Faridkot, including a nine-hectare private aerodrome, cash and jewellery. After youngest daughter Maheepinder Kaur’s death in 2001, the elder daughters Amrit and Deepinder, who managed the Meharwal Khewaji Trust, set up under the forged will, were his legal heirs. It took 21 years for Amrit to win the case and get the will quashed. Ramesh Kumar Manni, who had just completed class X, was an expert in creating fake documents like vehicle registration certificates, voter cards, school and college mark sheets and so on. He serviced clients in Delhi, Uttar Pradesh, Himachal Pradesh, Punjab and Jammu and Kashmir, charging `5,000-15,000.

August 15, 2014

ELCOME to the world of cheating, fraud, forgery, counterfeiting, identity theft and impersonation. Everything is possible, so expect the unexpected. Those involved may be strangers or people known to you. With erosion of values and morality, documents and seals are not the only fakes around. From fake and bogus university degrees to counterfeit currency, spurious medicines, false product labels, and even phony relationships, you just wonder if anything is original. Can frauds, forgeries and such financial crimes be prevented or brought to a standstill? What should be the role of courts in deciding fraud or forgery cases? Are the Indian laws related to cheating, fraud or forgery exceptionally weak? Would India like to follow the Sharia pattern of law, based on the principle of “an eye for an eye”, and start amputating thieves, cheats and forgers? Justice S Vaidyanathan of Chennai High Court sparked off a bitter controversy in one of

Amitava Sen

his recent judgments, wherein he said that persons forging property documents deserve to have their fingers chopped off. This invited sharp criticism from several quarters. “Are we living in medieval times where people’s hands and feet were chopped off for minor offense? The state should be reformist not retributive,” said Tilak Raj Kakkar, former Delhi Police Commissioner.

he matter arose when petitioner PM Elavarasan approached the high court, seeking a direction to Saidapet district registrar and Virugambakkam sub-registrar to release the sale deed presented by him on April 17, 2013, upon assigning a registration number. Elavarasan’s contention was that the registering authorities did not have the power to probe ownership and title of the property and that they were obliged to return registered documents. The judge reportedly questioned the audacity of the petitioner in filing a writ petition in the high court after the registering

authority had withheld the document. Does this imply that the petitioner, who is innocent unless proved guilty, has no right to file a writ petition if he has reasons to feel aggrieved? The defendant, VVV Nachiappan, claimed that the land in Kumaran Colony belonged to him and its papers been forged by Elavarasan. Upholding the defense argument the judge expressed shock at the manner in which forged documents were allowed to be created with the connivance of officials in the sub-registrar’s office. He remarked that if the laws were rigid and deterrent, the criminals would not dare to indulge in illegal activities. “The court could not remain a silent spectator,” the judge observed and expressed hope that courts concerned initiate criminal proceedings and award maximum sentence after a speedy trial in such cases. He felt that such persons needed to be severely dealt with. The action of the petitioner is highly deplorable and warrants heavy costs, the judge said imposing a cost of `1 lakh on the petitioner. IL INDIA LEGAL August 15, 2014

RIGHTS/ dress code/clubs

Illustrations: Udayshankar

DHOTI’S dressing down are we within our legal rights to form elite clubs with sartorial diktats, howsoever absurd or archaic? By Jagdish Sagar

ECENTLY three luminaries of the Madras High Court—that splendid Indo-Saracenic monument of the Raj, with its rigid dress code (above the belt, anyway) and learned judges who are addressed as “milord” as they administer English common law—were denied admission to the Tamil Nadu Cricket Association for being dressed in veshtis, or dhotis, rather than the customary

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trousers and collared shirt. The great chip-on-the-shoulder brigade has declared war. One blog entitled “End the Sartorial Apartheid” defends the dhoti in these terms: “…dhoti was the only approved apparel for men to enter the sanctum sanctorum of most temples in Kerala and select temples in Tamil Nadu from time immemorial.” (So sartorial apartheid is okay in temples, but not in clubs.) The chief minister has promised legis-

lation to force clubs to let in people wearing native costume. Meanwhile, the High Court itself didn’t intervene: no one’s constitutional rights had been infringed, it held, though one of the three who had been denied entry to the club was one of its own judges. The veshti is, no doubt, more elegant and better suited to the climate of Chennai than the ill-made trousers that are now the male norm on the streets of our towns. Indians actually do look better in native costume (if only because it lends some dignity to that ubiquitous pot-belly) but it’s on the way out— which, again, gives it a new cachet: it’s actually becoming elitist. Native costume was also, until recently, de rigeur for politicians but that’s going out too: now, to represent the “aam aadmi” you may need to dress more like Arvind Kejriwal (and some people will do anything for political office.) Women’s right to dress non-traditionally, for comfort and charm rather than “modesty”, without being leered at, or being blamed for being leered at, is a live and perfectly valid feminist issue. We’ll never take to top hats and tailcoats like the Japanese, but surely in another generation or two international clothing (“western” is now a misnomer) will be the default form of dress in most of India. It’s already the aspirational uniform of millions looking for a toehold into the middle class. So the Tamil Nadu Cricket Association’s dress code wasn’t an onerous requirement for the three gentlemen who wanted in, nor indeed any great departure from what people like them normally wear. But leave that aside. The real question is whether Indian citizens have a right to form clubs with strict dress codes, howsoever absurd or archaic, and to exclude from their premises those, whether guests or members, who refuse to conform. Should someone in a dhoti be entitled, in the name of Indian culture, to wander about inside a nudist club? (There actually is one in India.) Is it okay for a club to deny entry to someone as distinctly Indian as a naga sadhu? Would someone in shirt and trousers have the right to walk into a fancy dress party at a club (though I can’t say how the management would regard a veshti in that particular situation)? In the limited vocabulary of Indian journalism (“reels under” for power shortages;

Should someone in a dhoti be entitled, in the name of Indian culture, to wander about inside a nudist club? Is it okay for a club to deny entry to someone as distinctly Indian as a naga sadhu? “lashes out at” for any criticism, “nabbed” for arrested) “relic of the Raj” is the phrase of choice for anything over seventy years old that the writer disapproves of, or that doesn’t grant privileged admission to journalists. But are our old clubs really so very British nowadays? The Delhi Gymkhana Club—I’m not a member—actually seems quite Punjabi: and why not? It’s still a pleasant watering hole for its members (and occasional guests like me who obey its dress code). It’s most unlikely that these places resemble authentic Brit clubs any more than the Lok Sabha resembles the House of Commons. Article 19(1)(c) of the Constitution gives Indian citizens the right to form associations, and a law can abridge that right only if the restrictions it imposes on that right are “reasonable” and “in the interests of the sovereignty and integrity of India or public order or morality”. Obviously the right to form an association includes the right to keep people out of that association: the Supreme Court held as much in the Hindi Sahitya Sammelan case where the Government tried to stuff a private association with its nominees; now if the Government can’t force members on a club, how can it force guests on it? It beats me how Jayalalitha’s team of babus are going to draft a reasonable law requiring clubs to let in people wearing veshtis in order to uphold the sovereignty and integrity of India or public order or morality. IL INDIA LEGAL August 15, 2014

ENVIRONMENT/ swimming pools

AGAINST THE TIDE Many pools in plush housing societies do not have the facility to save water. (All photographs are representational)

August 15, 2014

ndia stands at the threshold of hydrological poverty, but that hasnâ&#x20AC;&#x2122;t stopped millions of liters of ground water being flushed into drains by thousands of swimming pools in the country. As there is no law on how water must be filtered and reused, pools have taken the soft option of simply emptying it once the water turns dirty, and then filling it up again. What should ideally be done is to pass the water through a filtration plant and recycle it. A swimming pool should not be emptied until it needs repairs. This, incidentally, is the practice the world over. The water is filtered

round-the-clock to keep it clean. In fact, this water quality is better than the raw water that comes in through pipes. It is monitored every day to ensure that swimmers are safe. SHALLOW KNOWLEDGE Vivek Mishra, managing director, Premium Pools, who has built nearly 300 pools in India, points out: â&#x20AC;&#x153;In Europe, it is illegal to empty pools once they are filled. Even private pools in residences cannot do it. There is regular monitoring to ensure that water is not wasted and cleanliness requirements are adhered to. Awareness about the need to conserve water is high abroad, while here,

Don’t throw the bath water! instead, recycle it. a new law to regulate swimming pools for filtration facilities will help save millions of gallons of this precious resource By Ramesh Menon water is wasted as if there is plenty around. No wonder, the water table is plummeting every year.” Mishra finds it difficult to convince educated builders to invest in filtration plants and build pools designed to save water. Incidentally, for a pool with an area of 8 feet by 24 feet and 4 feet depth, a proper filtration system will cost `2-3 lakh. A five-foot pool with an area of 10 feet by 25 feet takes in 30,000-40,000 liters of water. Lavish bungalows and farmhouses that have larger pools of 20 feet by 40 feet or 30 feet by 40 feet can take in around 80,000 to 2 lakh liters of water. Cities like Gurgaon, Noida, Ghaziabad and Faridabad, which are mushrooming around the capital, have gated communities in elite group housing societies with pools, which take up to 3 to 10 lakh liters. Just imagine the colossal waste of water every week or two when pools are drained out. Most of these colonies throw out the water after a week or 15 days, as it develops algae,

and even stinks. Many builders create fountains or water bodies to add to the landscaping so that the value of the property is enhanced. But they do not care to put up a filtration plant, as there is no law to force them to do it. In fact, Noida Authority recently sent out a circular asking owners to change their water every few days so that dirty water doesn’t stagnate in pools! DEEP UNDERSTANDING In Europe, where the swimming season lasts for just about three months, pools follow a special mechanism called winterization. As temperatures fall to around -6 degrees centigrade, the water freezes. As this can damage the walls and floor of the pool, agencies put in air balls in the water. These shrink, making more space for the ice to expand. When Mishra visited Australia in 2007, he found that all the five-star hotels in Gold Coast refrained from operating any of their water features like fountains and waterfalls as there was a drought. But they were running their filtration plants, so that the water INDIA LEGAL August 15, 2014

ENVIRONMENT/ swimming pools

UNI

A pool owner in India has to give an affidavit, saying the water will be changed at least once a month or more often. This rule does not apply to private pools. could be used the following year. If filtration is not done continuously, water tends to get degraded. In India, most of the fountains run with fresh water that is drained away, once it gets murky. Even the Noida Golf Course has a swimming pool, which empties water every winter, as it does not have a system in place. The same goes for numerous leading developers, who boast of modern international standards. WATERED DOWN LAWS Getting a license for a swimming pool involves getting permissions from the police and the local municipal body. An inspection is carried out by the authorities before a license is granted. Shockingly, the owner has to give an affidavit, saying the water will be changed at least once a month or more often, as per the instructions of the licensing branch. This

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shows arbitrariness and lack of standards. Moreover, these seem to apply only to public and commercial pools. There is no mention of private pools, which take up millions of liters of water every year. Worse, information is only available online for grant of license in Delhi, indicating the lax attitude in the maintenance of pools. It is vital to have a filtration system to sanitize the pool. After all, the water within contains harmful substances, such as chlorine, salt, acid, dirt particles, body oils, sunscreen residues and bacteria. The filtration system captures all these, and to work efficiently, filters must be cleaned every few days. Many builders just fix a filter, hoping the pool will be clean. But the filtration process needs an elaborate piping system that distributes the filtered water evenly around the pool. It is of utmost important that builders with a poor record of maintaining pools are not given permission to build new ones. POOLS OF DISASTER The absence of guidelines has led to fatal accidents. Earlier this year, a water-proofing worker got electrocuted in a private pool in Uttar Pradesh, as there was a leakage of elec-

GOING NOWHERE (Left) Most of the pools in India are overcrowded and poorly maintained (Extreme left) Absence of proper guidelines have led to many fatal accidents in pools

tricity. “All pools with lights should have what is called ‘earth leakage circuit breakup’. This ensures that even if there is a small leakage of power, it would automatically trip. Pools designed unscientifically are a disaster waiting to happen,” warns Mishra. Lack of regulations showed up last month when the Etawah district magistrate Vidya Bhushan’s spine was seriously injured when he dived into a pool in Saifai, the home of Uttar Pradesh chief minister Akhilesh Yadav. The pool was reportedly half-empty when he dived into it from a two-meter-high board. It was constructed at a cost of `250 crore in the Chandagi Ram Stadium and was touted as an international pool. Laws have to be created to dovetail safety guidelines, along with the ones that stop wastage of water. This is no rocket science, but the government agencies are not sensitive towards the need to save and conserve water. South Australian legislation prohibits the disposal of backwash water from swimming pools into the storm water system as it could harm creeks, rivers, lakes and coastal waters. That’s the level of hygiene there. Of course, India has no such rule. “There is no awareness that water is a precious resource and should

In deep waters In the United States, a pool builder needs to have a separate license to operate. In India, any contractor can build and operate a pool. Many of them do not know the delicate science of maintaining a pool. Emptying of water from it actually leads to cracks and consequent leakages. The fact that 80 percent of the swimming pool equipment is bought by contractors while only 20 percent is supplied by professional pool builders indicates the problem. Only experts have an idea of the science and technology involved in keeping a pool clean throughout the year, even when it is not being used in winter

be used diligently,” says Mishra. In the heart of the capital, the government constructed a huge water body in Pragati Maidan that held 20 lakh liters of water. It had to be changed frequently as there was no system to keep it clean. But good sense dawned. The pool area has now been emptied and disbanded and makeshift stalls have come up, selling various things. However, a glaring example of lack of foresight is a park near Lucknow airport, built under the aegis of former chief minister Mayawati, which had a water body with a holding capacity of about two crore liters of water. But it had no plumbing for filtered water to flow. Talk about being penny wise and pound foolish. IL INDIA LEGAL August 15, 2014

ENVIRONMENT/ national green tribunal

Flexing its muscle the environment ministry has reasons to worry, as the green tribunal asserts itself By Ramesh Menon PRICE OF DEVELOPMENT (Above) The pristine coastal landscape of India; (facing page) one of the numerous coastal projects that threaten to destabilize the coastline, which is ecologically sensitive

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n a significant judgment, the National Green Tribunal (NGT) recently ruled that it had the powers of a court and could exercise the powers of judicial review. It could also examine the validity of notifications passed by the environment ministry. The judgment by a five-judge bench headed by former Supreme Court judge and NGT chairperson Swatanter Kumar said that the purpose of the NGT Act would stand defeated if the tribunal did not have the powers of a court. “The NGT has all the trappings of a court with original, appellate and special jurisdiction, performing exclusively judicial functions and hence is a court,” said the order. It also pointed out that the fine distinction

between a “court” and a “tribunal” is getting reduced day by day. The judgment said that the object and purpose of the NGT Act would stand defeated and frustrated if every question relating to examining the validity of delegated legislation was first examined by a constitutional court and not the tribunal. It would be a travesty of justice if the NGT did not have the power to examine the correctness or constitutional validity of various notifications and rules, the judgment said. The NGT was constituted as a specialized body to reduce the burden of litigation of green issues in the higher courts. The issue raised another egoistic tug of war between the NGT and the Ministry of Environment and Forests (MoEF), which had earlier filed an affidavit in the Supreme Court saying that the NGT was causing embarrassment by not acting as per the Act. Earlier, the MoEF held the view that the NGT could not take cognizance of an issue on its own, as it was just a tribunal constituted by the execu-

The differentiator

tive. Clearly, there was a turf war on. Justice Kumar, in his judgment, said that the MoEF was “merely an administrative ministry” for the NGT, to provide for means and finances and that “once the budget is provided, the ministry cannot have any interference.” The 142 page order said that the process of appointment and removal was under the effective control of the Supreme Court. There was nothing in the provisions of the NGT Act that indicated that there would be any external control over its discharge of judicial functions, the order said. The judgement said that the purpose of constituting the tribunal would be defeated if it would be divested of its right to exercise powers of the civil court. The court said that it was like a civil court acting as an independent judicial tribunal, with complete and comprehensive powers for judicial review. However, the order clarified that the power of judicial review will not be exercised by the tribunal in relation to the NGT Act and that it would be used to supplement and not supplant the powers of the various high courts or the Supreme Court. The tribunal delivered this judgment

while hearing a petition, which challenged the environment clearance given to the `5,000-crore Vizhinjam International Sea Project in Kerala by the MoEF. Thiruvananthapuram-based environmental activists Wilfred J and V Marydasan filed an appeal seeking the tribunal’s intervention to direct that coastal areas throughout the country, including the Vizhinjam coast be preserved. The harbor project got environmental clearance in January this year. The NGT has decided to review the constitutionality of a 2011 Coastal Regulation Zone notification, which exempted coastal areas of outstanding natural beauty such as the VizhinjamKovalam sector from protection. The stand of the NGT has far reaching repercussions, as the judgment said the exemption under the 2011 notification was not confined to the Kerala coast but would include the entire coastline of around 6,000 km. The MoEF has certainly something to worry about as it gave numerous clearances after the new government came into power. IL

In its judgement in the case of SD Joshi vs High Court of Judicature at Bombay, the Supreme Court explained the difference between a “tribunal” and a “court”. “Courts are the regular civil courts of the country, such as district courts, high courts and the Supreme Court. They have wider powers and follow a strict procedure in their functions. Tribunals on the other hand are special bodies, which are created for decisions involving specialized law, such as a military tribunal for issues arising out of military laws. These do not enjoy powers as wide as those of the courts, though their functioning and procedure is more flexible and less set in stone.”

—With inputs from Shailendra Singh INDIA LEGAL August 15, 2014

MY SPACE/ diary / somalian aid worker / javed ameer

an aid worker recounts the horrors inflicted upon women in somalia

Some 1.1 million Somalis are internally displaced and survive on humanitarian assistance in relief camps. Violence against women in these camps is common. though nothing much gets reported. It is shocking what women can endure. Working as the head of programs for Islamic Relief Worldwide in Somalia based in Mogadishu (capital), I have got many a shock in life, some of which can never be wiped off. This was one of them: Fatima (name changed) walks into my room and sits down. She is silent. She is otherwise a bubbly, full-of-life woman in her midfifties, who chucked it all in the United States to come back to Somalia, her country of birth. She wanted to be with the ones who are striving to bring it back from the brink. She started an organization that works with the women who are â&#x20AC;&#x153;violatedâ&#x20AC;? and who face violence as a matter of routine. There are a number of such women just in Mogadishu across so many of the IDP (internally displaced persons) camps. The prevailing gun-toting

August 15, 2014

Photos: United Nations

macho culture just adds fuel to this fire. Today Fatima is unusually quiet. I am quiet too as I can feel the tension. After a few minutes I look up at her. She is crying. She takes her time to get back her composure. She says she has just admitted Lulu (name changed) to a hospital, hoping that she would at least recover physically. Fatima knows that Lulu may not get justice as we understand it. What she hopes is that Lulu may be able to move on. This was Lulu’s second marriage after she was deserted by her first husband. She sent her three kids from her first marriage to her mother’s place, as her new husband would not have them around. Lulu supported them with whatever she earned. She ran a mobile kiosk of snacks wherever construction was taking place in Mogadishu. Every evening Lulu returned home with money to find her husband lazing around in a stupor, induced by chewing khat, which is a flowering plant native to the Horn of Africa and the Arabian Peninsula. It is addictive and gives a sense of euphoria. He would often

demand money for more khat, chewing it late into the night. Whenever he felt like it, he would demand sex. Lulu would helplessly resign to it. Finally, she decided that she had had enough. One day when her husband demanded money, Lulu refused. Hell broke loose. He beat her up mercilessly. While the blows rained on her, she shouted out that she was finally opting out of the marriage and would get out of the house at dawn. A woman walking out of marriage is not only rare in Somalia but unacceptable. A woman would need to “buy’ khula (the right of Muslim woman to divorce her husband). A price is negotiated between the separating partners for each of the three words of “Talaaq” that the man would have otherwise spoken. For example, the woman can “buy” each “talaaq” word for say $100 and would need to pay $300 for her Khula! Lulu did not have that kind of money. Her ultimate crime was that she had demanded separation. The husband picked up a steel rod and broke her knee caps and screamed she was free but he would still INDIA LEGAL August 15, 2014

MY SPACE/ diary / somalian aid worker / javed ameer

take his price. He left, only to return at around 3 am that night. He demanded that Lulu cook for him though she was writing in pain. When she refused, he walked out into the dark in a rage. He returned half an hour later. Lulu heard some commotion outside her tattered tent. Then the assault began. First her husband came in. He broke her

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elbows with the same steel rod and then raped her. Sixteen other men followed. Lulu was unconscious by the end of it. Her neighbours discovered her in the morning. Someone informed the police. The police picked her up and admitted her in an army hospital. After eight days she regained consciousness. Her knee caps and elbows were fractured, pelvic joint was dislocated, she had developed fistula, her vagina was infected and needed six stitches to keep the uterus in. Her relatives came when they got the information about the assault. After

fifteen days she could stand with difficulty and was released by the hospital. There was no way for the poor relatives to nurse Lulu back to health and that is when they got in touch with Fatima, who took Lulu under her care. Fatima admitted her in another hospital. Now, as she narrated the horror in detail, she cried. What are the options for Lulu to get justice? She has two. One, she could appeal to her clan elders. They would congregate and summon Luluâ&#x20AC;&#x2122;s husband in front of a tittering crowd. Lulu would have to scream at the top of her voice to be heard by the jury above the din of the crowd. She would have to narrate all the gory details in public. The clan elders would impose some symbolic fine on the husband, who would have to slaughter a goat for the public feast that would follow. But for this, Lulu will have to pay as the husband does not earn. Everyone would eat and have a good time. Lulu and her husband would go back to their misery, unless of course he decides to

divorce her. The second option for Lulu is that she could appeal to the court of the land. She could identify at least four of her rapists by their voices in the dark apart from her husband, but her husband would not be considered a rapist as he is married to her. The court would then order the police to arrest the perpetrators. They may get a sentence of some seven or eight years in jail after a trial of around a year. Once they are put behind bars, Lulu would have to pay for the upkeep and food of her four rapists, as the government does not have the resources to meet the jail expenses. If Lulu does not pay, they would get released. And once they get released, we can imagine what will happen to Lulu again. Fatima is through with the story. She continues to cry. My vision blurs.

Javed Ameer INDIA LEGAL August 15, 2014

GLOBAL TRENDS/ Gaza and Ukraine

Reflections on an Unforgiving Day

August 15, 2014

what ties ukraine, russia, israel and gaza is that they are all fighting for interests that they cannot live without. meanwhile, the west advises them on issues that doesn’t affect it existentially Courtesy: Stratfor’s Geopolitical Diary

E ate breakfast to the news that an airliner had crashed in Ukraine. We had lunch to the news that Israel had invaded Gaza. An airliner crashing is perhaps more impactful than an invasion. We have all wondered, when we hear of a crash, or even in quiet moments on board an aircraft ourselves, what living our final moments in a plane plunging to earth, knowing that we will die, would be like. An invasion is harder for some of us to empathize with. Most of us have never invaded a country, nor been in a country while it was invaded. But it shares this much with a plane crash: Your life is in danger, and your fate is out of your hands. We don’t even know for certain what happened to the plane or how far the invasion will go. But no reasonable person looking at today could argue that we are the masters of our fates. At one point in the afternoon, it was announced that the White House had been placed on lockdown, which meant that a significant security threat had been found. It turned out someone’s lost backpack caused the whole episode. Our job is to find order in the apparent disorder, even if meaning is fleeting. There are two things we can point to. First—tragedy aside for the moment—the plane crash had to do with the struggle for Ukraine, between the right of Russia to be secure from the West, the right of the Ukrainians to determine their own fate, either as one country or two, and the right of Western powers to involve themselves in these affairs. Gaza is about the right of Israel to have a nation, the right of the Palestinians to have a nation and the right of western countries to involve themselves in the matter. Both issues are matters of competing national rights, not dissimilar from one and other. The Russians have historically experienced multiple invasions from the West, all of them devastating, some of them through Ukraine. Ukraine means “nation on the edge,” or what we could call a borderland.

Photos: UNI

SECOND TIME UNLUCKY Wreckage of the Malaysian Airlines flight MH17, which was brought down during its flight from Amsterdam to Kuala Lumpur INDIA LEGAL August 15, 2014

GLOBAL TRENDS/ Gaza and Ukraine

through an invasion? Does it have the right to do that at the expense of Ukrainian self-determination? To the extent that the West has involved itself, can it be said that Ukraine is truly free to determine its future?

LIVING ON THE EDGE (Above and right) Israeli forces attack Gaza

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Usually under Russian domination, it is now independent. But for Russia, it is the buffer between the kinds of armies that invaded Russia in 1941 when the Nazis came. The names of many of the cities that are spoken of now are the names of the cities in which the Soviet army fought. For the Russians, this is the borderland that can’t be given up. Yes, no one is planning to invade Russia now. But the Russians know how fast intentions and capabilities change, and they wonder why the Americans and others are so concerned with having a pro-Western government in Kiev. For the Ukrainians, who have rarely experienced sovereignty, this is their opportunity to chart their own course. For them, the Russians’ need for a buffer is another way of saying Russian oppression of Ukraine. Of course, not all living in Ukraine see this as oppressive. They see the Ukrainian government as oppressing them, by tearing them away from their Russian roots. For western Ukrainians, these Russophiles are thugs trying to destroy the country. For the Russophiles, it is hypocrisy that Ukraine demands that its right to self-determination be honored, but it has no honor for the right to self-determination of the Russophiles. It is a question of national self-determination, which is one of the foundations of modern Euro-American civilization and always becomes complex when competing nations all claim that right. Does Russia have the right to assure that it will never again have to live

nd so an airliner was shot down and some 300 people died. It is hard to draw the connection between the abstract discussion of national rights and the debris and lives strewn around, but there is a connection. The plane would not have crashed if the question of national interest and national self-determination was not so important to so many people. The same issue caused four children to be killed on a Gaza beach and a man to be blown apart by a mortar round in Israel. The Israeli Jews claimed a homeland in today’s Israel. They were occupiers, but there is not a single country in the world that wasn’t, in some way, founded by occupiers. Every nation that exists was born out of some injustice. Consider the US and Native Americans and slavery. Both were fundamental to America’s birth, but the right of the United States to remain intact is not questioned. Look at Europe and the way it was reshaped by armies. Perhaps that happened centuries ago, but is there an expiration date on injustice? At the same time, there was someone there before Israel. They were not annihilated as in the case of some nations that disappeared with the arrival of newcomers. They are still there, in Israel, in the West Bank and certainly in Gaza. This is the borderland between Israel and the Arab world, and it is filled, particularly in Gaza, by

people who are claiming their right to a state. Some who want the creation of that state to include the annihilation, expulsion or absorption of Israel. There are others who want a two-state solution. They are not really as thoughtful and reasonable as they would like to believe. A state divided in half by Israel would be peculiar, to say the least. Could Gaza, a small place packed with people, and a distant West Bank ever become economically viable? And could the Israelis ever trust the Palestinians not to open fire on Tel Aviv from the few miles that would separate it from a Palestinian state? The Arab state would be an economic impossibility. The Israeli state would be at risk. Westerners are filled with excellent advice

as to what the Palestinians should do and what the Israelis should do. But as with Ukraine, the Westerners are playing with peripheral issues, things that don’t affect them personally and existentially. US Secretary of State John Kerry is attempting to do good. But if he fails, his children won’t live with the consequences. And therefore, an endless and pointless debate rages as to who is right and who started the war in an infinite regression that goes back to times before any living Jew or Palestinian. This is the same as in Ukraine. Ukraine’s history had been shaped by its relation to Russia. A debate can be held as to whether this was just. It really doesn’t matter. Russia is there and needs things, Ukraine is there and needs different things, and the West is there

INDIA LEGAL August 15, 2014

GLOBAL TRENDS/ Gaza and Ukraine

UNFAIR WAR (right) A man with his grievously wounded baby in Gaza; (below) All that remains in the name of passengers on-board the ill-fated MH17

providing advice, which, if it fails, won’t directly affect it. What ties Ukraine, Russia, Israel and Gaza together is that they are all fighting for their lives, or interests that are so fundamentally important to them that they cannot live without them. They are fighting for their nation and for that nation’s safety in a world where unspeakable things happen and where the only ones who will defend you are your family, friends and countrymen, and where all the well-wishers and advice-givers will quietly take their leave if dangers arise. There is nothing easier and cheaper than advising others to

August 15, 2014

get along. These conflicts are rooted in fear, and fear is always a legitimate emotion. Others would have approached today by saying that the Russians are evil or the Ukrainians really the oppressors, the Israelis killers or the Gazans monsters. We are sure we will hear from many condemning our moral equivalency, by which they will claim that the only truly moral position is theirs. But this is not a moral equivalency that argues that Ukrainians and Russians, Israelis and Palestinians should therefore sit down and recognize that they really haven’t got anything to fight over. This is a moral equivalency that says these people have a great deal to fight over, but that it is their fight, and that—as when the Romans began wiping out Europe’s Celts—it will be settled by steel and not by kindly advice or understanding. The problem between these people is not that they don’t understand each other. The problem is that they do. And therefore an airliner crashed and reportedly some Americans, my countrymen, may have died. And yes, we would grieve for our countrymen before others, much as Russians, Ukrainians, Israelis and Pales-tinians grieve for their own. We are no better. But we live in a stronger and safer country for which we are grateful. It allows us to give advice and means we don’t have to experience our misjudgments, even on a long sad day. IL

BRIEFS

Quick compensation for rape victims: Delhi HC EXPRESSING disapproval at the delay in giving compensation to the rape victims from the government, the Delhi High Court has asked the Delhi State Legal Services Authority (DSLSA) and the Delhi government to create a special “single-window” mechanism for providing immediate compensation to the victims. The court has directed the DSLSA to work with the divisional commissioner and place a proposal before it by August 6. Currently, it takes about four to six months from the award of compensation to its receipt. The high court wants the payment to be received within two weeks. UNI

People not for sale WHILE it remains illegal in most countries, a trial court in Delhi has stressed on the need for criminalizing the sale of human beings in India as well. Taking note of various cases where women and children have been sold off, the court referred to the recommendations made 21 years ago by the Law Commission, which proposed

inserting a provision for imprisonment up to seven years to those selling women and minors. Currently, the law prohibits the sale of human beings only if done for prostitution, slavery or “exploitation”, which implies that the sale of humans for marriage or adoption is not illegal.

Crocodile in courtroom A magistrate at the Ahmedabad metropolitan court was in for surprise, when forest department officials presented a two-month-old crocodile as evidence. The crocodile, a Thai Miniature, had been sold by two accused to an Ahmedabad-based doctor. The officials insisted that as “muddamaal” or a seized article, they had to present it before the magistrate. Questioning the need to bring the animal to court, a perplexed Metropolitan Magistrate, A Desai, asked if they caught a tiger, would they bring it to court?

Collegium on last leg? THE collegium system of selecting judges for the higher judiciary is under serious scrutiny—despite Chief Justice RM Lodha batting for it—and may be on its way out if the recent developments are to be considered. First, it was the Law Commission chairman AP Shah who said the collegium system lacked transparency and accountability, flouted rules blatantly and smacked of gross favoritism, and needs to be replaced by the Judicial Appointments Commission (JAC). This feeling was later echoed at a meeting top jurists, academics, ministers, former chief justices, Shah himself, among others, had with law minister Ravi Shankar Prasad to discuss the issue. While favoring a JAC, the members insisted that it should be transparent, have an objective and ensure a perfect balance between the executive and the judiciary. Prasad gave an assurance that judiciary’s independence will not be compromised. Realizing that the collegium system hasn’t worked, the members wanted the center to fill JAC with able and honest people who can cleanse the system.

Google to pay fee AS per a new law passed by Spain, news aggregators like Google News will have to pay publishers a fee if they link to their content. This law has been passed with a view to prevent copyright infringement, and has been termed “google fee”. The fine for not paying the publishers will be €30,000 to 300,000. This is second assault on Google in Spain in the last two months, where the “right to be forgotten”movement (wherein a person can demand that all his past references be removed from databases) has already hit the search engine.

Prosecutor problems THE shortage of public prosecutors is a chronic problem in the lower courts of the country. Now a PIL filed by a Delhi-based advocate Manish Khanna has revealed another problem—absenteeism amongst the few public prosecutors. Even though it is the state’s duty to provide sufficient prosecutors, the deficiency leads to frequent adjournments, leading to prolonged incarceration of accused persons jailed under the various non-bailable offenses. The PIL seeks to fine absentee prosecutors, citing the suffering of the accused in several cases. INDIA LEGAL August 15, 2014

CONSUMER WATCH

How can buyers enforce their rights and seek remedial measures Good as new? BUYING a new car is always a special event for anyone. Imagine the disappointment if you were to discover that the new car you paid for is old, damaged and repainted! Vinay Sreenivas, an IT consultant from Bangalore, was thrilled when he booked a Fiat Palio with Concorde Motors. After paying `5,47,810, he was handed over a red Palio. However, he noticed dents on the body. Upon getting an opinion from a car painter, he found that the vehicle was damaged and had been repainted. Taking it back to the dealer, he demanded the car be tested. The test found that it had indeed been repainted. The management agreed to resolve the issue. Vinay exchanged a number of emails with Concorde Motors, which told him that it could either paint the car again or replace the damaged parts with a new one. Vinay demanded that he be given a new car, since he had paid for it. The dealer did not reply.

Vinay took the case to the consumer court, which, after hearing both sides, decided in Vinay’s favour and directed the dealer to either replace the car with a new one within 60 days or to pay back the full amount.

Illustrations: Udayshankar

Banks using brawn ONE often hears stories of banks employing goons and strongmen to reclaim money from defaulters. One such case took place when the loan recovery agent of HDFC Bank sent musclemen to forcibly repossess Balwinder Singh’s hypothecated vehicle. This caused physical harassment and mental trauma to him, who took the case to the district forum. The forum decided in Balwinder’s favour, ordering a compensation of `4 lakh to be paid by the bank for its brutish methods and

August 15, 2014

the harassment caused by it. Upon appeal, the Punjab state commission, confirmed the order. The bank went to the National Commission which took cognizance of the facts that the vehicle had not been repossessed with the complainant’s consent, and that Balwinder was never given notice of his car being sold. It condemned the practise of employing goons and forcibly repossessing property, and ordered exemplary damages of `25,000.

Lacking in substance WHAT should you do if a coaching agency or institute is not up to the mark? Can you leave before the duration of the course and get your money refunded? Dalbir Singh of New Delhi joined the Sehgal School of Competition, but was not satisfied with the classes. He left after one year, although he had paid the fee for a two-year course. Seeking to get a refund of one yearâ&#x20AC;&#x2122;s

fees, he approached the district forum. The coaching institute contended that its contract with Dalbir stated the payment could not be refunded or transferred under any circumstances. The forum held that this condition was an unfair trade practise and biased against consumers. Therefore, it directed the institute to refund the remainder of the fees.

Who is a consumer? WHEN a parent takes his or her child to a doctor, who is the consumer? Is the parent entitled to consumer redressal in case of any deficiency in the treatment? Or will the child be entitled, as he is the one being treated? According to the Supreme Court, both the parent and the child are consumers, and action can be taken by either or both against the negligent healthcare provider. In the case of Spring Meadows Hospital & Another vs Harjol Ahluwalia through KS Ahluwalia & Another, a faulty injection by the hospital led to the child

suffering cardiac arrest and paralysis. The court rejected the contention of the hospital that the childâ&#x20AC;&#x2122;s parents were not covered within the definition of consumers under the Consumer Protection Act and could not be awarded compensation separately. The court held that the parents were consumers, as they had hired a service, and that the child, being a beneficiary of the service, was also a consumer. Thus, the court ordered compensation of `12 .51 lakh to the child and of `5 lakh to the parents for acute mental agony.

Pure veg problem BC Mahapati was a passenger on a Spice Jet flight from Bangalore to Delhi in 2009. When the air hostess arrived with the food cart, he asked for a vegetarian sandwich. Instead, he was given a non-vegetarian one. This horrified Mahapati, a strict vegetarian. The consumer court held that serving non-vegetarian food to a customer who asked for vegetarian food was a deficiency in service. While the court dismissed the complainantâ&#x20AC;&#x2122;s claim for `5 lakh in damages as being inspired by greed, it held that the airline should pay him `10,000 for the deficient service and `5,000 towards cost of litigation. INDIA LEGAL August 15, 2014

IS THAT LEGAL?

A TO Z OF LAW the law seems to have its own language and throws up terms that can often be mystifying for the common man. and yet, we see these terms and phrases being used regularly by the media. a number of them sound alien because they are borrowed from a different languageâ&#x20AC;&#x201D;latin.

udi Alteram Partem: Latin for â&#x20AC;&#x153;hear the other side tooâ&#x20AC;?. A basic principle of justice which holds that nobody should be tried or punished without being given a chance to defend himself or present his version. One must be given a fair hearing and a chance to respond to any evidence.

ench: The long table at which a panel of judges sits, also used to refer to the group of judges in a particular case. For example, the largest bench ever formed in India was a constitution bench of the Supreme Court, which comprised 13 judges, for the Kesavananda Bharati vs State of Kerala case in 1973. The bench examined the authority of parliament to amend the constitution.

ontempt of Court: The offense of being disobedient to the directions of a court or disrespectful of the court. Any act that prejudices legal proceedings or tends to lower the dignity of the court. For example, if the court has ordered Bhuvan Trading Co to stop selling a particular commodity and it continues to do so, it will commit contempt of court.

August 15, 2014

e facto: Latin for “in fact”. Often used in place of “actual” to show something is in practice even though it might not be strictly in accordance with established practices or laws. It can be contrasted to de jure, which means “in law”. For example, after the United States abolished segregation through the Civil Rights Act of 1964, “de facto” segregation existed in the practise of “separate but equal” facilities.

stoppel: A court-ordered obstruction that restricts a person from enforcing a particular right or prevents him from denying a fact. It is usually used when the right in question has been acquired through unfair means, such as misrepresentation. For example, if a creditor unofficially tells a debtor that the debt is forgiven, even though this might not be documented, the court can estop the creditor from later enforcing the decision, as this would be unfair behavior on his part.

nterim Order: An order(s) passed by the court before it takes a final decision in a case. It may be used to safeguard certain interests which may suffer if the court waits till its ultimate decision. The aim is to maintain status quo or to protect a right that is under threat. For example, in a divorce case between Raj and Priya, where Priya alleged that she felt threatened by Raj, the court can issue an interim order restraining Raj from coming within 100 meters of Priya.

orum non conveniens: Latin for a “forum which is not convenient”, it is used when the court chosen by the plaintiff (the person who initiates a case) is not a convenient court. The reason: the incident in question happened somewhere else (outside the jurisdiction of the court). Therefore, the court with jurisdiction over the location would be more convenient. For example, Harkaran Singh and Swaminathan are involved in a motor accident in Jalandhar, Punjab. The injured party, Swaminathan, files a case in a court in Tamil Nadu. This will be a case of forum non conveniens, as the accident, police report, medical reports (if any), insurance claims etc would have been filed in Punjab. Thus, the Tamil Nadu court might direct the plaintiff to initiate action in a convenient court.

ood Faith: Any act which is done with honest intentions, without malicious intent, even if such an act causes damages or legal injuries. For example, if a police officer arrests Rajesh under the belief that he is Mohan, a wanted criminal, and without any malice towards Rajesh, this would be an action in good faith, even though it might amount to unlawful arrest.

abeas Corpus: Latin for “You may have the body”. It is a writ that can be issued by the High Court or Supreme Court directing the police or other authorities to produce an individual whom they have arrested. It is a safeguard against unlawful detention. It was used in the infamous Rajan case, where an engineering student from Kerala was tortured and killed by the police during the Emergency.

udicial Review: A component of the system of separation of powers, whereby the judiciary can review the actions of the executive and legislative branches and strike them down if it finds them to be illegal or against the constitution. For example, if parliament passes a law which violates any article of the constitution, the Supreme Court would exercise its power of judicial review to strike it down.

angaroo Court: A makeshift court set up without any legal authority, to pass judgment in a localized area. These are illegal as they usurp the authority of the established system of courts. For example, the infamous khap panchayats, where caste-based courts often pass harsh punishments on inter-caste couples are kangaroo courts.

ocus Standi: The standing of a party, or its right to be heard or bring action on a particular topic to the court. For example, Arvind goes to an electrical shop to buy compact fluorescent lamps (CFL) for his house. Upon installing them, a few bulbs burst due to a manufacturing defect, and injure Arvind’s five year old son. Here, Arvind has the locus standi to file a case against the manufacturer.

andamus: A writ allowing the High Court or Supreme Court to compel a lower court or authority to do something which the latter is legally bound to do or to refrain them. IL

(To be continued in the next issue) INDIA LEGAL August 15, 2014

ENTERTAINMENT/ movies

HEART TUGGING DRAMA here is a love story that tells us more than the poetry of love By Ramesh Menon

C Rating **** out of ***** THE FAULT IN OUR STARS DIRECTION: Josh Boone SCRIPT: Scott Neustadter and Michael Weber ACTORS: Shailene Woodley, Ansel Elgort, Nat Wolff

August 15, 2014

ANCER kills more people much before they die. But here, in The Fault in Our Stars, we see two teenagers tell us that there is more to life even with death lurking in the shadows. Based on a bestseller by John Green, the American blockbuster unravels how 16-yearold Hazel Grace Lancaster, played by Shailene Woodley, waits for death. She is suffering from fatal thyroid cancer that has spread to her lungs. She has to be strapped to a portable oxygen tank all the time to help her breathe adequately. Her parents gently persuade her to join a cancer support group to make friends, but Hazel is hesitant. She does not want to open her wounds to the world. Not yet. As fate would have it, the cancer support group meeting opens a new world for her. Hazel meets charming 17-year-old Augustus Waters, who suffers from osteosarcoma that leads to amputation of one leg. But he is happy as ever with an artificial leg and the fact that he is still alive. Then there is Issac, played by Nat Wolff, who has lost one eye to cancer and the other one is to be removed soon. But he laughs at the tragic realism of it all. Augustus, played by Ansel

Elgort, has the courage to joke about his prosthetic leg. No self pity. Soon, Hazel and Augustus find their lives getting closer, as it matures into love. Ironically both are living on the edge. But their quest to live a full life, admire the little things of life, soak in moments of joy are all so real. Acerbic wit comes as comic relief after tear jerking episodes that brings out the pathos and helplessness of not only cancer patients but their loved ones. At one point when she is battling with death as a 12 year old, Hazel’s mother brings herself to tell her to let go as she is unable to witness the pain of the child. Both Hazel and Augustus know that cancer was written in the stars but they also know that it is up to them to make the best of the time left. They decide that till oblivion they will be together. Hazel says: “My love, I cannot tell you how thankful I am for our little infinity. I wouldn’t trade it for the world. You gave me a forever with the numbered days, and I’m grateful.” Made on a budget of around $12,00,000, it grossed over $48,00,000 in the first week in the US. It is a film that will stay in your mind long after you have watched it. You realise that there is life beyond cancer. And love. IL

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

1. Sita and Gita are as different as chalk and. .... A: chess B: cheese C: chair D: child

8. He has a chip on his shoulder, i.e., he is ..... A: proud B: happy C: lucky D: haughty

2. Fuchsia is the name of a ...... A: country B: disease C: color D: girl

9. He wrote “FYEO” on the parcel. A: Final Year-End Order B: For Your Employees Only C: For Your Eyes Only D: Free Year-End Offer

3. A flirtatious woman. .... A: Minx B: Svelte C: Shrew D: Coquette 4. Know the symbol of star sign Capricorn? A: Bull B: Goat C: Scorpion D: Crab 5. An ailurophile likes A: alcohol B: cats C: radio D: albums 6. A baby fish in Abdul’s aquarium. A: Fry B: Fawn C: Fledgling D: Larva 7. I bet you know the correct spelling. A: Laison B: Liaison C: Laision D: Liason

10. What’s “quid pro quo”? A: Something for something B: Tit for tat C: Revenge for insult D: Effective rebuff 11. ‘That’ll be the day!’ means ....... . A: ‘Then I’ll be happy!’ B: That’ll be my lucky day!’ C: I’ll celebrate that day!’ D: ‘That’ll never happen’ 12. What’s “a fool’s paradise”? A: Mistaken beliefs B: Cash windfall C: Gambling den D: Foolish idea 13. What’s a “factoid”? A: Tiny shop B: Reliable information C: Trivial fact D: Small factory 14. One of these does

NOT mean rain: A: Cloud juice B: Window washer C: Sheets D: Adam’s ale 15. When you are happy, you DON’T say: A: Man O Man! B: Groovy! C: Nuts! D: Hot dog! 16. Clanging of arms, clank of chains but crackling of ...... . A: fire B: thunder C: leaves D: wind 17. He takes extreme health precautions. A: Exhibitionist B: Hypochondriac C: Sadist D: Megalomaniac 18. Numismatics is study of. ..... A. numbers B. stamps C. coins D. poisons 19. Delhi belly means A: paunch B: hunger C: glutton D: diarrhea 20. To bite one’s tongue is to ....... A: refrain from speaking B: not to keep promise C: speak fast D: feel excited

ANSWERS

1. cheese 2. color 3. Coquette 4. Goat 5.cats 6. fry 7. Liaison 8. haughty 9. For Your Eyes Only 10.Something for something 11. ‘That’ll never happen!’ 12. Mistaken beliefs. 13. Trivial fact 14.Adam’s ale 15.Nuts! 16.fire 17. Hypochondriac 18. coins 19.diarrhea 20.refrain from speaking

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 August 15, 2014

Photos: UNI

PEOPLE / sudarshan patnaikâ&#x20AC;&#x2122;s sand art SAVING THE TAJ Internationally renowned Indian sand sculptor Sudarshan Patnaik with this amazing creation in Atlantic City in the United States won an award at the World Cup of Sand Sculpting

SECURING THE FUTURE Odisha-based Sudarshan whipped up another amazing sculpture hoping to create environment awareness

AIR TRAGEDY After Malaysian Airlines MH17 was shot down, Sudarshan used six tons of sand to drive home the tragedy of innocent lives lost

STOP THE WAR As war tears through Gaza, Sudarshan pleads for peace

SAVING THE ENVIORNMENT Sudarshan attempts to create awareness on World Environment Day that was recently celebrated in Puri

March 1, 2014

ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU ice n Pr atio 0 nI vit `5

INDIA L EGAL Sonia-Rahul and the National Herald scam

Ramesh Menon’s account of Modi’s war room

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