India legal June 30, 2014 by India Legal

ice r P tion 0 a t i Inv `5

NDIA EGAL I L DON’T MESS WITH ME Gay Rights Revisited

Death Penalty Still Hanging

Internet Censorship Off With His Face!

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June 30, 2014

` 100

STORIES THAT COUNT

RNI No. UPENG/2007/25763

MODI’S COWBOY

INDIA’S NEW NSA AJIT KUMAR DOVAL

BADAUN: India’s Shame

LETTER FROM THE EDITOR

INDERJIT BADHWAR

METRO’S BILL OF RIGHTS

VER since India achieved freedom from Brit rule, models of growth have paraded the national ramp like so many economic fashionistas promising rapid post-colonial development—Mahanalobis, post-Nehruvian, Kaldor, Myrdal, Narasimha Rao, Amartya Sen, Bhagwati, Jayalalithaa…. The model who seems to have stolen the show so far is the Modi aka Gujarat model. But will the new prime minister walk away with the crown? Will he be able to deliver transformation a la Gujarat to the rest of India in the shortest possible time? We’ve heard the arguments. Solutions that worked for Gujarat’s 63 million people cannot work for India’s 1.2 billion. Gujarat’s quality of life index is not enviable etcetera. Economists like Surjit Bhalla will take on the Modi-baiters statistic for statistic. And I’m not about to bore you here with more stats, even though they remain a valid underpinning for any discussion on why some Indian states have grown while the others have languished in poverty and squalor. It is great that this debate, rather than simply caste and religion, has become—and should remain—the centerpiece for discussion during and following Election 2014. Let me charge headlong into this argument and posit my own in-your-face model, one that stares at every Delhi commuter, every day of his life. I call it the Delhi Metro Model. But first, let’s get over the statistics: In 2016, with the completion of its third phase, Delhi’s Metro Rail will become the seventh largest Metro in the world, covering 310 kilometers and carrying more than four million riders a day. By any standard, this is no mean feat. This essay is not simply about the enormity of the project or the technology involved but rather an attempt to hammer home the cardinal point that the Delhi Metro is a testament not only to the power of the yes-we-can Indian but also a living, breathing model of

June 30, 2014

how this nation’s very way of life can be radically transformed through a cocktail of social justice, caring, good governance and honesty. There is a humongous makeover in the attitude, demeanor and mindset of the Indian the moment he begins the escalator ride into the subway station. He leaves himself and the India he knew above ground, way behind. This same Citizen Raju, who pushes his way through crowds, swears like a thug, litters shamelessly, pees against walls, spits on the pavement, ogles and whistles at women, waits angrily for late buses, shivers in the cold, swelters in the heat, steps over children to get to the ticket window, staggers blindly through blackouts, sneers at the derelicts and laboring classes, metamorphoses below ground. He pushes and shoves no more, his language is sweeter, he holds his bladder and spit, waits patiently—and in queue—for the next train, neither shivers nor swelters, rubs shoulders with garbage pickers, observes the miracle of no blackouts, offers his seat to women and senior citizens and the differently-abled. Raju ban gaya gentleman.

hat causes this remarkable transformation? My answer: Exposure, even if temporarily, to the face of a state that respects you, exhorts you to civilized behavior, provides justice and equal opportunity, cares for your comfort, shows you the value of hygiene, and will be second to none in providing you the state-of-the-art tech facilities. If charity can begin at home, then surely why cannot the post-Modi development model emerge from Delhi Metro, to which Indians from every state and class and background are exposed? It starts at the very beginning. Earning citizens’ goodwill starts with the laying of the Metro tracks and digging, with an extraordinary sensitivity to keeping traffic disruptions to a minimum, as compared to other construction

activities or the blatant injustice suffered by common people, prevented from reaching their destination by VIP cavalcades. Don’t think this comparison goes unnoticed as an act of good and fair governance, especially given Metro’s reputation for a scandal-free administration. It immediately endears you to the Metrowallahs and makes you more forgiving of them, when you encounter a somewhat troublesome stretch.

f you talk of inclusive governance and development, or the utilitarian principle of the greatest good for the greatest numbers as part of India’s rapid urbanization, again, what better example than Metro. Here, egalitarianism rules, literally. Prince, pauper, lawyer, businessman, student, migrant laborer, rustic, lumpen, together ride rocket science escalators (some of whom may not even have seen cement staircases) or elevators to wait for three to five minutes for six- or eight-car trains with automatic doors. The air conditioning, in near perfect working condition, caresses all, whether sardine-packed standing or seated. The security scanning and baggage checks are unobtrusive, the queues at token and smart card counters move rapidly and the turn-style entry gates operate more efficiently than in New York or London. And the Metro respects your time. It is never late. Electronic crawl boards; route maps lit with destination bulbs, reinforced by announcements in Hindi and English, perfectly enunciated and audible; signs; station names; and even color codes with directional arrows on platform floors for the unlettered, are ubiquitous. Everywhere, within the trains, and on the walls, are instructions, either written or through polite public address systems, exhorting us—as should be the norm in all our schools—to civic behavior: fines for spitting and littering; no eating and drinking on platforms or in carriages; offering your seats to the disabled, the elderly and women; no sitting on the floors; avoiding gratuitous contact with strangers; warnings of CCTV surveillance; apologies for delays; and in a tribute to transparency, even the estimated costs of Metro expansion, as well as salaries paid to Metro employees. The riders obey. Metro remains spotlessly clean. They offer their seats to the needy. They respect the coach reserved for women. Sometimes they push and shove, more often they don’t. There is little or no crime. The lawlessness that characterizes so much of urban India is not the Metro culture, proving that you do not need a police state to enforce decency. Why? Because to the ordinary citizen, who rides the metro and gets to work for a reasonable fare in less than half the time in air-conditioned comfort, this is

not a vicarious experience. It is happening to him in real time. It is unlike visiting a zoo and looking inside cages from the outside, or visiting an air-conditioned mall in summer to cool off and windowshop for things he can never afford, and then returning to his own sordid world. But he can afford the metro. It belongs to him, as much as it does to the rich IT executive or the i-pad toting student, who is hanging on to the adjacent strap smelling of cologne or Fa. The Metro is, in fact, the great leveler. The Metro is not rude to him. It makes him part of an all-world, high-tech experience of efficiency and energy. It gives him a sense of citizenship and of belonging—the only environment in which the rule of law can exist naturally and without coercion. And so, Citizen Metro reads and listens to the civics lessons and agrees—not “obeys” but “agrees”—with them. And when he emerges overground again, or returns to his village, he knows he has not dreamt the experience. He wonders why this world of technology and inclusiveness, cannot be replicated everywhere else. His experience and exposure to what is best in India has changed his expectations, his aspirations. He will now demand this from his politicians, no matter who from which party. That is what I call the Metro Model. Incidents of indiscipline, official negligence and technical snags are usually handled without rancour or violence and riders are more tolerant of glitches and snafus. The lesson here is that when the state respects and cares for its citizens and treats them as stakeholders rather than as subjects before whom it is not accountable, the citizens reciprocate these sentiments equally—they feel a sense of ownership and participation and respect the state. These are the conditions conducive to the operation of the Rule of Law. Each time I see the red light at the end of tail car disappearing over an elevated track into the night, I think of it as a beacon piercing the blackness with a swathe of light.

editor@indialegalonline.com INDIA LEGAL June 30, 2014

JUNE 30, 2014

VOLUME. VII

ISSUE. 20

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

NATIONAL SECURITY

Modi’s cowboy

Ajit Kumar Doval, the man entrusted to give a new direction to the country’s security structure, is known for his hardline stand on Kashmir, illegal migrants and cross-border terrorism. VISHWAS KUMAR writes about his approach

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

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OWNED BY E. N. COMMUNICATIONS PVT. LTD. NOIDA HEAD OFFICE: A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI OFFICE: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI OFFICE: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW OFFICE: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA OFFICE: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD OFFICE: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001.

June 30, 2014

The troika of terror The Taliban, Al Qaeda and Lashkar-e-Taiba are grouping to bring their sinister designs to fruition in Kashmir. A report by VISHWAS KUMAR

Trouble along the Palk Strait

LTTE’s fragment groups outside Sri Lanka have forged ties with militant groups in Tamil Nadu. COL R HARIHARAN describes the genesis of the trouble

RIGHTS

“Like” and risk your life

ALSO

Goa-based Devu Chodankar’s arrest for his facebook post on Modi points to the dangers to freedom of expression for the common man, writes JAGDISH SAGAR

Whose rights are paramount?

They deserve dignity too

Dreaded criminals’ death sentences were commuted because of the dehumanizing delays by the president on their mercy petitions. Is the society on the same page as a reformist Supreme Court, asks MEHA MATHUR

The gay community has knocked on the doors of the judiciary for its rights under Article 21. But in this battle, the parliament may have to pass the right law. An account by INDIA LEGAL TEAM

FOREIGN POLICY

INFRA

Neighborhood watch

Narendra Modi seems intent to build up stronger relations with South Asian countries to secure peace and foster trade. SEEMA GUHA writes about the advantages of the “look closer” policy and the challenges he will face

A balancing act in the Far-East

As the NDA sets out to strengthen relations with China, it will have to reckon with the escalating tensions among the East Asian countries in South China Sea, analyzes DIVYA JOHN

When growth sidelines green issues

Carl Lewis expresses faith in Indian sports.....62 Stringent US laws deprive certain parents of the joy of parenthood...............66 Informal room and car renting arrangements come under attack in America......................72 Citylights depicts the stark realities of metro life.......................78

Despite the Modi government’s overdrive to bring the economy back on track, the PM will need to create a fine balance between development and environment. NARESH MINOCHA’S perspective on the ongoing debate SPOTLIGHT

India’s hour of shame

The rape and murder of two village girls in Badaun brings into focus Uttar Pradesh’s, and India’s caste biases and hopeless gender equations. A first-hand account of the state of anarchy at ground zero by HEMA BADHWAR MEHRA AND SHEFALI MISRA

Cover Design: ANTHONY LAWRENCE INDIA LEGAL June 30, 2014

LETTERS Fickle memory

Legal insights

I am a technology professional working in a multinational company. I admire your coverage of elections in the latest issue (India Legal, May 31, 2014). Look at the way how the entire country is now chanting Narendra Modi, whereas a few years ago he was the favorite whipping boy of everyone, including the media. The article on Narendra Modi books (The Face That Launched a 100 Books) shows how easy it is to change public opinion in this country. Yesterday, Arvind Kejriwal was the hero. Today he is the laughing stock. Nitin Gulati, Delhi

As a law student, I am generally prescribed hard core law journals by all my seniors and guides. But after I read various articles of your magazine regarding river cleaning issues, sex addiction problems and judicial appointments, I understood that it is a perfect balance of law, governance and news. It informs a layman about the legal side of things and legal buffs get to know about the governance aspect of law. The article on the controversial judicial appointments (Legal Tangle, June 15, 2014) brought to my notice how politics and governance is as much a part of the judiciary, as the law itself. And knowing this is very essential to my future profession. I would continue to read your magazine for a holistic view of law. Rajendran Nair Karakulam, Hidayatullah National Law University, Raipur

Surprise package The first time I came across India Legal, I mistook it to be like other law-oriented publications like India Law Journal and hence was hesitant in going through it, but all it took for me to hang on to it for a couple of hours was a peek inside. The illustrative design and catchy titles stirred my interest. One specific article which I relished reading was The Kings Knights (India Legal, June 15, 2014) which points out various forces at play in deciding key positions in the Modi-centric ministry. Ishan Garg, University of Delhi

I was surprised to visit a film review, Queen Sparkles as Rani in the May 31 issue of India legal. It is good to find such soft pieces in your magazine. I would further appreciate if you have some interesting sections like case of the week, lawyersâ&#x20AC;&#x2122; buzz, musings from the court, to name a few, in your future issues. BK Bhattacharya, Noida

US is no holy cow

Lofty lifestyle

Getting a visa to the United States is still a dream for many Indians, and there is a general perception that the process is fair and impartial. However, I was amazed to read about the fraud behind green cards in the story, Cash-for-visa Con (India legal, June 15, 2014). Why do Indians get flogged by the western countries for being corrupt and venal? Corruption is a universal phenomenon, and the US too has its share of scams. Raj Shekar, New Delhi

I thoroughly enjoyed the June 15 issue of India Legal. I continue to be astonished by the lavish lifestyles and tastes so many of our fellow desis are able to sustain (Inside Ali Babaâ&#x20AC;&#x2122;s Cave). Ravi Katari, Chennai

Back-of-the-book ideas

No run of the mill Good to see so many illustrations in your magazine in the June 15, 2014 issue. Shirley Khaitan, Mumbai

Diabetics are humans

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June 30, 2014

India Legal is getting better and better with every issue. The story, Novel Dose of Insulin (June 15, 2014) was a revelation. Being a diabetic, I too had apprehensions of being rejected in the marriage market. But thankfully, the disdain for diabetics is not as rabid in West Bengal as it seems to be in Gujarat. People should know that you have no control over getting diabetic. It is a physical condition, and not a disease. And there are many shades of people with sugar problems. Lipika Das, Kolkata

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

VERDICT The first prison I ever saw had inscribed on it CEASE TO DO EVIL: LEARN TO DO WELL; but as the inscription was on the outside, the prisoners could not read it. â&#x20AC;&#x201D; Bernard Shaw, co-author, English Prisons Under Local Government

June 30, 2014

SUPREME COURT/ bar association/missive

We beg to differ

MY LORD

Filling up of all the posts of Judges in all courts on the day of vacancy: As on date the Hon’ble Supreme Court has 5 vacancies. For Hon’ble High Courts throughout the country, the approved strength of Judges is 875, as on 1st April, 2014 the working strength has been 623 and therefore the vacancies as on 1st April, 2014 are 252. Situation is no better in the District and Subordinate Judiciary which is also facing a huge shortage of Judges. Against the sanctioned strength of 17,715 Judges, more than 3,300 posts are vacant. Similar has been the position for the last few decades. This is the most important issue which needs to be tackled immediately in order to solve the problem of increasing arrears. The solution is exclusively in the hands of Hon’ble Judges, because all judicial appointments are in the hands of Hon’ble Judges. We suggest that two or three months before, the vacancy or vacancies arise, collegiums exercise should be completed and the names may be sent to the government so that in case the government has any suggestions about any of the candidates, they also get time to return the suggestions for reconsideration. Thereafter, the necessary order etc. may be passed by Respected Rashtrapatijee. The date on which the vacancy arises should be the date on which the vacancy is filled by making sure that the Hon’ble Judges filling the vacancy takes oath on the date the vacancy arises. As far as the appointments in Hon’ble High Courts are concerned, there has been a grievance that the Supreme Court collegiums at times take very long time running into couple of

June 30 2014

VOICE OF THE SC BAR Pravin H Parekh, president, SC Bar Association

excerpts from the letter written by president, supreme court bar association, to chief justice of india, rm lodha, on june 6, this year. while rejecting lodha’s idea that courts should work 365 days in a year, it put forward options to tackle backlog of cases in courts

Illustrations: Amitava Sen

Respected Chief Justice, After you took over as the Chief Justice of India, Your Lordship has not only taken keen interest in functioning of the administration of justice but also have been acting upon bringing some useful reforms. Primarily the view of most of the members of the Supreme Court Bar Association, whom I had the occasion of speaking to, about this issue, is that the members of the bar cannot possibly work for 365 days as no human being can or should work for 365 days. The members of the Supreme Court Bar Association are well aware of the importance of finding the way out to solve the problem of increasing backlog and we suggest the following options rather than working for 365 days:

REFORMS MAN Chief Justice of India RM Lodha

months, to consider the lists for appointment of Judges for High Courts and at times return the whole list for reconsideration after a long time. Some mechanism of coordination between the Hon’ble Supreme Court and Hon’ble High Courts should be evolved so that this deadlock can be avoided and the Judges take oath on the very day the vacancy arises in all courts. As far as the appointments to the District Courts and Subordinate Courts are concerned they are under complete control of High Courts. Some directions may be issued to all High Courts to fill up these posts on the day, the vacancy arise. Appointing only competent and deserving Judges is also very important. Punctuality of the Judges to work in Court room full time is very essential Punctuality of working in the Court rooms on time and for the full time must be strictly followed by all the Judges throughout the Country. Rules and strict guidelines must be made to ensure that entire judicial time is fully and properly used by each and every Judge in all courts. Uniform Parameters Certain uniform principles, in disposal of cases are required to be formulated by the Hon’ble Judges. It is true that a Judge has to discharge his judicial function according to his sense of justice but unless certain institutional policy decisions are taken and implemented, the arrears will go on mounting.... If general parameters are laid down and are broadly followed by Hon’ble Judges, people would stop filing certain cases. Hon’ble Judges may spend some time and lay down the policies to be followed by the Judiciary. The meetings between Hon’ ble the Chief Justice of India and the High Court Chief Justices should take place more often and there should be greater deliber-

ation. In some of the sessions, members of the bar may also be invited. Strikes by lawyers The strike by lawyers is another reason for arrears. There can be no justification for going on strike by lawyers except in rarest of rare cases. Adjournment by lawyers Unnecessary adjournments by lawyers also lead to delay. The focus has to be on a litigant who has a right to have a lawyer of his choice and right to remain present in court on getting reasonable notice. Governments as litigants The Governments central as well as state and statutory authorities etc in most of their litigations always go right up to the Hon’ble Supreme Court. This is required to be controlled by laying down certain guidelines by governments and creating a machinery which will scrutinize...which matters should be filed and which matters should be appealed and till what stage. If necessary, working hours of all courts may be increased by one hour on all working days for sometime as an experiment in order to see if disposal of matters increases and if it does then this may be done for year or so, till the arrears reduced. The Executive Committee of the Supreme Court Bar Association would like to have a meeting with your Lordship to discuss the views of members of the bar on this very important issue and during such meeting we will submit supplementary suggestions after wider consultation, with the members of the Supreme Court Bar Association. With Best Personal Regards on behalf of members of the Supreme Court Bar Association.

Yours sincerely, Pravin H Parekh President, Supreme Court Bar Association

More work, less play The idea may have been rejected by the bar council of various states as well as the Supreme Court, but it was a major initiative taken by the Chief Justice of India (CJI) RM Lodha in judicial reforms. After seeking a systemic change for ending the adjournment culture in courts, CJI Lodha had proposed that the Supreme Court, high courts and trial courts should work for 365 days a year. Lodha had said that judiciary was now an essential service provider, and thus should function all round the year. He pointed out that the step would help bring down the huge number of pending cases, offer quick relief to the litigants, and an opportunity to young lawyers to hone their skills. And most importantly, there will be no burden on lawyers to work for extra days or more hours, and they can go on leave whenever they choose, rather than on fixed dates and periods in a year, the CJI clarified. The apex court currently functions for 193 days, high courts work for 210 days while the trial courts do business for 245 days. INDIA LEGAL June 30, 2014

SUPREME COURT

Bull’s eye judgment

ou can no longer take the bulls by the horns if the Supreme Court’s judgment on jallikattu is concerned. Taking objection to the extreme cruelty meted out to bovines during the bull fighting festival in Tamil Nadu, the apex court banned the 4,000-year-old tradition, and prohibited bullock cart racing in Maharashtra, Punjab and other states. While annulling the Tamil Nadu Regulation of Jallikattu Act 2009, which allowed bull fighting, a bench headed by Justice KS Radhakrishnan observed that torture, fear, pain

and suffering undergone by bulls in jallikattu was unlawful as it violated the Prevention of Cruelty to Animals Act. The case was no different in racing, the bench noted. The apex court also struck down the center’s proposal that bulls participating in jallikattu be made an exception in the list of animals barred from exhibition or trained for performances. The two-judge bench was hearing a petition from the Animal Welfare Board of India which had objected to the use of bulls in jallikattu, as well use of bullocks in races.

Conditional release

hatever be the reason, a convicted prisoner can’t be let off on parole unless he or she has spent at least a year in jail. That is what the prison rules say and the Supreme Court, too, went by the rule book. A vacation bench upheld the decision of the Punjab and Haryana High Court that had turned down the request for the conditional release of a person serving a life term, on the ground that he had only spent seven months in prison after being convicted. The man wanted to marry, but after being unsuccessful in getting a parole, he approached the apex court. The lawyer pleading the case put up a defense by claiming that the convict had stayed in prison for more than a year, if his undertrial period was considered. He explained that the marriage was fixed much before conviction, and the client’s appeal against his sentence was in the high court. But, the bench stood its ground.

June 30, 2014

Illustrations: Amitava Sen

Heartfelt apology pays

ourts need to be seen as working in public interest and upholding the confidence of the common man in the judicial process. And the contempt of court proceedings are crucial in this regard, the apex court felt. While justifying the ruling of the Allahabad High Court which did not take cognizance of an advocate’s apology for contempt of court (for allegations against judges), and packed him off to jail for a month, a bench of Justices BS

Chauhan and AK Sikri said courts had the power to dismiss apologies if they felt these were tendered as part of a strategy to wriggle out of imprisonment. Nevertheless, it reduced the fine amount from `20,000 to `2,000. The bench observed that apology should be seen as genuine, sincere and remorseful; if the person was really sorry, he needed to express it at the earliest opportunity. A late apology, actually went against “contrition”—the whole idea behind the purging of contempt. However, the apex court also made it amply clear that an early apology was not a guarantor of the removal of contempt of court proceedings against a person. It stated that the concerned courts needed to be convinced that it came straight from the heart.

Child custody woes

married woman left her husband in Singapore and came to India with their son, after a marital strife, with the assurance that she would return after holidaying. However, she decided to stay on in India. The husband filed a petition in the Singapore high court for the custody of the child. The court ordered that the child be brought back to Singapore. The woman didn’t follow the court’s directive. The husband approached the Supreme Court in India. The apex court directed the woman to return with the child and surrender before the Singapore high court. The two-judge bench, however, made it clear that the husband must sponsor their air fare to Singapore and take back contempt proceedings initiated, if any, in the Singapore high court. It even asked him to provide a separate house for the mother and child, and pay them `two lakh. Lalit Khitoliya

Protecting voters

ne has heard of politicians bending backwards to please voters during elections. But, what happens when voters are warned by politicians before polling, to cast ballot in favor of a particular party? Observing the need for ensuring voters’ right to privacy, a two-judge bench of the apex court demanded a response from the center as to why it sat over a suggestion made by the Election Commission (EC) in 2008 to amend Rule 66A of the Conduct of Election Rules 1961. The amendment would have ensured that voters did not face retaliation from losing politicians. At present, the commission does ward-wise counting and declares the outcome. As a result, politicians come to know about the voting pattern of a particular ward. The bench was responding to a PIL, filed by advocate Yogesh Sehgal, which sought a direction to EC to stop the practice of declaring the result of every polling booth. It pointed out to the prepoll threat given by Maharashtra deputy chief Ajit Pawar to a Baramati village. Pawar had warned villagers that they will be deprived of

water and electricity if they didn’t vote for the sitting Nationalist Congress Party MP Supriya Sule. The EC said it had been clamoring for EVMs that enable cluster counting, connecting 15 EVMs at a time, only to reveal the total votes polled by each candidate.

INDIA LEGAL June 30, 2014

LEAD/ national security/profile/ajit kumar doval

MISSION

E L B I S POS

if the new nsa has his way, his zero tolerance towards militancy will include deportation of illegal migrants, pressing for a tougher line on pakistan-occupied kashmir, and elimination of the maoist terror By Vishwas Kumar

â&#x20AC;&#x153;

The war is difficult but winnable. The need is for capacity-building both at the central and state levels and the right leadership to convert plans into realities on the ground. It is they who started this war.

â&#x20AC;?

June 30, 2014

E does not want any third party “intervention, prompting or pressure” in Kashmir. He believes that Pakistan harbors a “compulsive hostility” against India. He thinks of Maoists as “enemy of the state”. He wants Bangladeshi migrants to be sent back, or closely monitored because of their possible terrorism linkages. Most important, he supports the controversial killing of Sohrabuddin, allegedly by the Gujarat state police in an “encounter” during Narendra Modi’s tenure as chief minister. He firmly believes in covert action and counter-terrorism. He has no qualms in using the underworld and mafia channels and entities to achieve national security objectives. His unqualified vision: there is a need to “transform” intelligence and not just reform it. Ajit Kumar Doval, an IPS officer and the former head of Intelligence Bureau (IB), and a hawk on most security issues, seems the near-perfect person to become Modi’s national security advisor (NSA). Thus, his appointment wasn’t a surprise as he had

“

There is no room to treat (left wing extremists or Maoists) as anything other than being enemies of the state who have to be fought, vanquished and neutralized.

”

worked closely with the previous Atal Bihari Vajpayee’s NDA regime. During his almost-four-decade career in police and intelligence, Doval was involved in most external and internal matters. He was sent to Mizoram to crack down on the Mizo National Front, and was present inside Amritsar’s Golden Temple during Operation Black Thunder that surgically flushed out militants in 1989. He negotiated with terrorists who hijacked Air India’s plane to Kandahar (Afghanistan) in 1999, and was stationed in Kashmir during the peak of insurgency in the state. Despite his retirement in 2005, he hasn’t lost his touch. Even before he became the NSA, he advised Modi to invite the heads of SAARC nations for the swearing-in ceremony. The gamble was based on a simple assumption: None of the leaders could refuse to attend the event. In addition, the foreign dignitaries’ presence was bound to grab

There is a need to make the message to the extremists loud and clear that the state will use all its power to protect its sovereign rights.

”

IBRAHIM’S NEMESIS? (Clockwise from top) The 1993 serial bomb blasts in Mumbai were masterminded by Dawood Ibrahim of the D-Company. Doval took it upon himself to catch or kill Ibrahim and go after the D-Company INDIA LEGAL June 30, 2014

LEAD/ national security/profile/ajit kumar doval

“

In the world of security what happens is important but what decides the endgame is how the governments respond to them. While the former is not always and fully in their control the latter is a matter of their conscious choice.

”

national and international headlines. And, it provided an opportunity for the new prime minister to establish personal rapport with these leaders. DOGGED BY CONTROVERSIES As the director of IB, Doval was caught in several storms that brewed in some security cups. The biggest was the possible connections between Mumbai mafia and IB. In the early 2000s, the special cell of the Delhi Police tapped phones of Delhi-based gangsters, who extorted money from Mumbaibased businessmen, especially realtors. The culprits, who lived in a rented house in Vikaspuri located in the western region of the capital, were part of the Chotta Rajan gang. Rajan, once a member of D-Company and Dawood Ibrahim’s loyalist, had turned against his mentor and started his own outfit. A day before the police planned to raid the Vikaspuri house, the surveillance team heard a new voice during one of the conversations. It belonged to assistant commissioner of police, Rajbir Singh, who headed one of the four units in the special cell. Singh spoke to none other than Rajan himself. The raid was cancelled, and the shocked policemen spoke to their superiors. Singh was summoned to explain his links with Rajan and a section of the Mumbai underworld.

Should NSA be scrapped? THE post of national security advisor (NSA) was created by former Prime Minister Atal Bihari Vajpayee in 1998. The first NSA was the late Brajesh Mishra, an ex-diplomat, who was based in the prime minister’s office and reported directly to him. The position enjoys the same status, till date. In 2010, Mishra, who wielded considerable clout during his tenure as the NSA, controversially argued that the post should be scrapped. “I was never in favor of creating the post. Having a powerful national security advisor in the prime minister’s office means he is not accountable to parliament. This is unacceptable in our (democratic) system. I suggested appointing a diplomatic advisor to the prime minister, who would handle foreign policy-related matters,” he said. The past NSAs became powerful, as they managed external and internal security, either directly or indirectly. This peeved both the home ministry and the external affairs ministry. Since the ministers are accountable to parliament, they had tough time answering questions raised by MPs, although the decisions were influenced by NSAs.

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A few years later, Singh told this correspondent that he was part of a joint covert operation between Delhi Police’s special cell and IB. He was the conduit between Intelligence and Rajan’s gang; IB had convinced the underworld outfit to kill senior members of Ibrahim’s D-Company. In one of his meetings with the mobsters, one of them gave him his mobile to speak to his boss. That’s how the discussion between Singh and Rajan got tapped by the former’s own special cell. Although the incident never became public, those in the know saw the hidden hand of Doval behind such operations. This was almost confirmed in July 2005, when Delhi Police arrested Vicky Malhotra, one of Rajan’s hit men; the sharp shooter was in a car with none other than Doval, who had retired as the IB head six months earlier. Doval denied it, but the US diplomats picked it up. One of the cables, among the thousands put in the public domain by Wikileaks, which was sent by the US mission in Mumbai to Washington, said as per the media reports Doval had planned to use Malhotra to eliminate Ibrahim. Ibrahim’s daughter’s wedding reception was scheduled at Grand Hotel, Dubai, in July 2005, and Doval and Malhotra chose the event to snare D-Company’s chief. The US cable added that Ibrahim had found out about Doval’s operations and used his “friends” in the Mumbai Police to eliminate Rajan’s gang members, and IB and police officials. For over a decade, Doval hunted Ibrahim; post 1993 Mumbai blasts, he headed the team set up to destroy Ibrahim and his notorious D-Company. ENEMIES OF THE STATE In one of the dozens of columns he wrote for Vivekananda International Foundation’s (VIF) website, Doval said: “They have started the war; it will be finished by us.” He was referring to the Maoist challenge in India. He added: “Left wing extremists are enemies of the nation…. Their history of siding with the Chinese during the 1962 war, supporting Pakistan Army’s genocide in East Pakistan and dubbing Indian intervention as imperialist, aligning with Kashmiri separatists and supporting North-East insurgents leave no

FOLLOWING AN AGENDA (Below) Doval negotiated with the hijackers of the Air India flight to Kandahar; (Right) The intelligence officer was present inside Amritsar’s Golden Temple during Operation Black Thunder

doubt about their intentions…. There is no room to treat them anything other than being enemies of the state who have to be fought, vanquished and neutralized.” His feelings, expressed in his VIF columns and interviews between 2005, when he retired from IB, and 2014, when he became NSA, provide ample proof of his tough, hardline views on Pakistan, Kashmir and Bangladesh. In 2006, he told the website, www.rediff.com: “I consider infiltration of Bangladeshis the biggest internal security problem…. Pakistan will never be able to send 200 people (militants) at a time at the border. From Bangladesh, 2,000 persons can get in…. Lots of Bangladeshis are actively involved in espionage work. Lashkar-eTaiba modules also use illegal Bangladeshis… to do their dirty job.” Years ago, when the former NSA, MK Narayanan, said that one should avoid “finger pointing towards Pakistan” over every militant activity, Doval VIF’s column went ballistic. “Surely, finger pointing is the very least we can do in addressing our biggest problem irrespective of whether or not it results in a ‘slanging match’. Our leadership

is guilty of letting the home team down by fighting shy of openly and directly drawing attention to Pakistan’s involvement in terrorist activity directed against India.” Doval does not want India to give an inch in Kashmir. In fact, he is against any agreement between India and Pakistan that allows the Line of Control to be recognized as the national boundary. India’s position can only be that it owns the entire Jammu and Kashmir, including Pakistan-occupied Kashmir. “Pakistan, if not punished for waging a covert offensive against India, should, at least, not be rewarded by it,” he wrote. If one picks up hints in his pieces, it seems Doval supports “hot pursuit” of Pakistan-based militants through operations managed by the Indian intelligence. On the Sohrabuddin issue, which created global controversy, sullied Modi’s image, and partly led to court indictment against Gujarat’s encounter cop, DG Vanzara, Doval supported the former chief minister. In another column on VIF website, he wrote: “Beware of half truths—because you may be holding the wrong half.” He explained there was nothing wrong in killing Sohrabuddin,

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Justice Hidayatullah in the Supreme Court judgment of 1966 asserted that, when a threat transcends limits of public order and threatens internal security, the overriding responsibility lies with the union government.

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INDIA LEGAL June 30, 2014

LEAD/ national security/profile/ajit kumar doval

RSS’ foot in Modi’s door FROM the appointments of the national security advisor (NSA) and ministers, it is evident that the RSS is using its influence to control internal and external security matters of India. Rajnath Singh, the home minister, is clearly close to the Sangh. In fact, he was instrumental in convincing the RSS about declaring Narendra Modi as the BJP's prime ministerial candidate. Initially, the RSS was not too comfortable with Modi’s candidature, although he had been a RSS pracharak, given the manner in which he almost wiped out the organization in Gujarat. Ajit Kumar Doval, the NSA in prime minister's office, who will handle internal and external security without being accountable to parliament, has the same mindset as the Sangh on crucial issues, be it Pakistan, Kashmir, Bangladesh or Maoism. After his retirement as the head of IB, he was a key member of the Vivekananda International Foundation, which is supported and financed by the RSS. Over the past several months, Modi himself has become the

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The availability of real-time actionable intelligence is critical for launching surgical operations against the Naxal leadership and guerrilla armies. The operational capabilities of state intelligence must be bolstered for tactical operations.

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These quotes are Doval’s postulates on terror policy as published in Organiser, June 2013

June 30, 2014

darling of the Sangh. Many RSS members cried when he was anointed as the country’s prime minister. The Sangh believes that he will deliver its goods, aspirations, desires and hopes. However, there is a now a feeling that certain powerful factions within the RSS are nervous about the prime minister because of internal politics. But if Modi delivers what he promises, these apprehensions will die a natural death in the near future.

as he was “an underworld gangster”, who worked with Dawood Ibrahim, and procured weapons and explosives from Pakistan to distribute them to Indian terrorist groups. COVERT STRATEGIES The NSA is convinced that covert action has emerged as the new instrument of choice for most nations. It is used by the US to achieve “politico-strategic” objectives, and Pakistan “to bleed India through terrorism”. Therefore, Indian intelligence has to develop “counter capabilities both in defensive and defensiveoffence modes”. A nuclear Pakistan has further reduced opportunities for conventional tactics, such as sending the army across the border; what’s now required are non-conventional responses. Doval is a champion of human intelligence (Humint) rather than technical intelligence (Techint, or technological snooping). He feels that human assets, which can infiltrate nations and militant organizations, help intelligence agencies to understand the enemy’s mindset and get precise information. Counter-intelligence experts agree that security operations based on Humint are 10 times more successful than those based on Techint. This is why, as the IB director, Doval actively monitored terrorist groups to seek a faultline that could be exploited to infiltrate them.

At the height of militant activities in Kashmir, Doval, who was posted there in the 1990s, persuaded an ex-militant, the late Kuka Parray, to form a group that killed the militants. Media reports indicated that IB managed and financed Parray’s operations. It was among the first indirect indigenous counter-terrorism movements in the valley. Doval’s strategies have yielded results in the past. He was the youngest policeman to get the Indian Police Medal; he got it just after six years, while the norm is over 15 years. He became the first police officer to get the Kirti Chakra, the second highest military award. This is the reason why the home ministry is abuzz with Doval. “For Pakistani jehadis, there are two targets, Modi and Doval, to counter. Both believe in zero-tolerance with terrorism,” says a home ministry official. In short, expect an aggressive offensive against militants. Wilson John, a terrorism expert, who knows Doval, believes that the NSA may be excellent operations man, and possibly the best in the country, but “I am not sure how strong he is in strategic terms.” Will Doval be able to emerge as the advisor, who makes Modi look at the “big picture”, or will he be limited by his rhetoric about Bangladeshis, hot pursuit against Pakistan militants, and neutralization of Kashmiri and Maoist insurgents? IL

LEAD / national security/J&K /militantsâ&#x20AC;&#x2122; nexus

The New Face of Terror the grand allliance between al qaeda, lashkar-e-taiba and taliban may intensify terrorism in kashmir By Vishwas Kumar

June 30, 2014

ARENDRA Modiâ&#x20AC;&#x2122;s success in inviting the SAARC heads of states for his swearing-in ceremony was heralded as a diplomatic masterstroke. But what eluded most of the foreign policy experts was that he was possibly forced to take the decision. The fact is that in the near future talks between India, Pakistan and Afghanistan are crucial. The reason: Fear of increased militant activity in the region. It is now an accepted fact in intelligence circles that with the withdrawal of US troops from Afghanistan, militancy will get a boost. In addition, the Indian prime minister is probably aware that feared outfits such as Al Qaeda, Pakistan-based Lashkar-e-Taiba (LeT), and Afghanistan-based Taliban have joined hands in several operations, including in Kashmir. One of the biggest concerns of Modi will be increased militancy in the valley, which will challenge his ability to govern and also his wish to

A mobile handset recovered from an LeT operative revealed a collage showing the late Osama bin Laden with LeT’s head Hafiz Saeed, in the same frame.

change Article 370 related to the state. Therefore, he needs to talk to Pakistan’s Nawaz Sharif, as well as Afghanistan’s Hamid Karzai. Sharif is the critical cog, because Pakistan’s intelligence wing, ISI, is alleged to have ideological and financial control over LeT, Taliban and even Al Qaeda to an extent. Based on interviews with scores of working and retired intelligence officials, and experts, India Legal pieces together the grand, and fearsome, story of how the paths and objectives of Al Qaeda, LeT and Taliban crisscross each other’s, and how the trio’s key focus is Kashmir. LeT’S NETWORKS WITH AL QAEDA Eighteen months ago, the Indian security forces killed several members of the Pakistan-based militant outfit, LeT, in Kashmir. One of them was Umar Ahsan Bhat alias Khitab, a resident of Kulgam district in south

Kashmir, who joined the group in May 2012, after he got admission to Kashmir University to study MSc zoology. Two mobile phones were recovered from him. They turned out to be a treasure trove of crucial information about LeT. What shocked the country’s intelligence agencies, which sifted through the phones, was a huge collage image. It showed the dead Al Qaeda chief, Osama bin Laden, with LeT head, Hafiz Saeed. Below them were two symbolic photographs of New York’s World Trade Center, destroyed in the 9/11 attacks by Al Qaeda, and the burning Taj Mahal Hotel in Mumbai, which was one of the targets of 26/11 attacks. At the bottom of the collage were the photographs of India’s former prime minister, Manmohan Singh, and US’ current president, Barack Obama. For the officials, it was critical evidence that hinted at the growing links between Al Qaeda and LeT, which allegedly terrorized Mumbai on 26/11 and subsequent days. The collage’s purpose was to convince recruits like Khitab that LeT was different from other groups operating in Kashmir, its perspective was global, and it had connections with similar international groups. But it implied that the 26/11 attacks were either inspired by 9/11 or, worse, LeT received help from Al Qaeda. Late last year, cellular chats between LeT commanders in Pakistan and the cadres in Kashmir, which were intercepted by Indian intelligence, regularly referred to 9/11 and 26/11. This alarmed the officers, who thought that another attack of similar magnitude was being planned in India. They figured out the mystery recently with the arrest of an LeT member, Hafiz Naveed alias Fahadullah. He explained that 9/11 and 26/11 were the last digits of the mobile numbers of his commander, Hanzia Adnan. This was another element to the theory that Al Qaeda and LeT worked in tandem. INDIA LEGAL June 30, 2014

LEAD / national security/J&K /militants’ nexus

BAYING FOR BLOOD (L-R) A collage showing US and India as common enemies; training camps of Al Qaeda and Taliban; LeT terrorists operating in Kashmir

Carlotta Gall’s new book, The Wrong Enemy: America in Afghanistan 2001-14, claims that Pakistan’s intelligence wing, ISI, was in touch with Bin Laden through LeT’s Saeed and Afghanistan’s Taliban leader, Mullah Omar. Gall, a British journalist, who covered Afghanistan for the New York Times, writes: “The haul of handwritten notes, letters, computer files and other information collected from Bin Laden’s house (after he was killed)… revealed regular correspondence between Bin Laden and a string of militant leaders… including Hafiz Muhammad Saeed… and Mullah Omar….” LeT’S LINKS WITH TALIBAN Past incidents have hinted at linkages between Saeed’s outfit and Omar’s Taliban. According to Afghanistan President Hamid Karzai, LeT was behind the attack on the Indian Consulate in Herat (Afghanistan) on May 23 this year. According to an intelligence official, the intention of the militants, armed with machine guns and rocket-propelled grenades, was to take hostages to embarrass the Indian and Afghanistan governments. The attack was timed just before May 26, when the newly-elected Prime Minister Modi was scheduled to take oath in the presence of heads of SAARC nations, which included Karzai and Pakistan’s Prime Minister Nawaz Sharif.

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In 2008, a suicide car bomb attack on the Indian embassy in Kabul (Afghanistan) killed 60 people, including Indian staffers. The embassy was hit by another attack in 2009. The next year, militants targeted two guest houses in Kabul, which were popular among Indians, killing six Indians. In August 2013, nine Afghans, including several children, were killed in a bomb attack on the Indian Consulate in Jalalabad. The finger of suspicion in all these cases pointed at the Pakistan-based LeT. According to the London-based Guardian newspaper, LeT has been “active in Afghanistan in recent years, often teaming up with insurgent groups operating in the eastern part of the country near the frontier with Pakistan.” And despite the US army presence in Afghanistan, Omar’s Taliban has revived itself, both in Afghanistan and Pakistan. It is logical to assume that there are logistics, ideological and human resources connections between LeT and Taliban. For example, immediately after the 2010 attack on the Kabul guest houses, the Taliban claimed responsibility and said that its targets were Europeans and Americans, and not Indians. A few days later, Afghan intelligence officials maintained that LeT was involved, and said that it had evidence to prove this. US Intelligence found that LeT cadres train with similar organizations in Afghanistan.

LeT, Al Qaeda and Taliban club India, and western countries as common enemies, and plan to synergize their efforts in their jehad. New Delhi and Kabul felt that LeT wished to undermine the relationship between the two nations. LADEN’S LINKS WITH KASHMIR Years before he was killed by the US Special Forces in Pakistan’s Abottabad, Osama Bin Laden had shown sympathy for the cause of militant organizations in Kashmir. He dubbed India as an enemy of Islam, and clubbed her with other foes like the US and UK. In the late 1990s, he exhorted the mujahids to save the religion in Afghanistan, Kosovo and Kashmir. He urged the various pro-Kashmir militant groups in Pakistan to join hands, and asked the Pakistan government to allow the setting up militants’ camps in the country to stage jehad in Kashmir. In the decade gone by, Bin Laden said that waging a jehad against India was an “Islamic duty” of the Muslim world, and that the Kashmir issue couldn’t be resolved without a holy war. He blamed the US for its support to the Hindus in Kashmir. Taliban’s Omar too said that the United Nations was a “western tool” to suppress the Muslims in Palestine, Kashmir, and Chechnya, among other places. He maintained that the “true terrorists” and “Islam’s enemies” were the US, UK, India, Israel and Russia. The Indian intelligence agencies first got evidence about Al Qaeda’s presence in the

country with the arrest of Sudanese national, Abdul Rouf Hawash, in New Delhi in 2001. An alleged cadre of Bin Laden’s outfit, he hoped to attack the US Embassy in the capital’s Chanakya Puri. Three years later, the outfit killed 22 people, including 10 Indians, in Kobar, Saudi Arabia. A website claimed on Al Qaeda’s behalf that “the 10 Indians killed were murderers of our Muslim brothers in Kashmir.” Kashmiri journalists received CDs in 2006, which announced the launch of Al Qaeda India, headed by Abu Abdul Rehman Al Ansari. The message, read by a masked man with a gun at his side, said that the struggle in Kashmir had turned into a dispute over a piece of land between two nations (India and Pakistan). Hence, it was different from Islamic struggles in Chechnya, Afghanistan, Somalia, Iraq and Palestine, where the objective was to establish an Islamic rule that transcended the national borders. Clearly, the intelligence agencies are worried that in the near future, Al Qaeda, LeT and Taliban may conduct joint operations against their “common enemy”, India, in Kashmir. Even the rise of right-wing icon, Modi, may propel them to do this sooner than later. Thus, Modi has to talk to Sharif and, unlike the previous NDA PM, Atal Bihari Vajpayee, the new PM must demonstrate that it can no longer be business as usual. IL INDIA LEGAL June 30, 2014

LEAD / national security/ terror threat/ tamil nadu

Tale of Twin

TROUBLES a recent blast at the chennai railway station brought into focus the increasing presence of terror outfits in tamil nadu, even as arrests in the state point to LTTE’s regrouping efforts By Col R Hariharan

HERE’S trouble brewing on the Tamil shores, with shock waves being felt across Palk Strait too. At the core of the problem are the twin terror trails that are becoming more discernable. Analysis of recent terror activities in Tamil Nadu and Sri Lanka lend credence to their presence. One relates to the Indian jehadi network and the other to the LTTE’s overseas offshoot’s efforts to gain a toehold in the island nation. Both have common features: obsession with a cause, motivation to carry out attacks against all odds, and the existence of local and overseas networks. Both found a fertile ground due to the shortsighted policies of the respective governments. However, the comparison ends there. The jehadi network in Tamil Nadu seems to have fared better due to regional votebank politics. However, the LTTE is finding it difficult to push through its revival efforts, thanks to Sri Lanka’s counter measures and the immediate suppression of any activity smacking of separatism. JEHAD IN GARDEN OF PEACE Chennai was stunned on May Day by two low-intensity explosions on the Bangalore-Guwahati superfast express at the city’s central

June 30, 2014

UNI

station. The blasts shattered the myth of Tamil Nadu being “a garden of peace and security”, as the state’s chief minister had claimed. A young woman was killed and 14 others were injured in the explosions. Analysis of the explosives, including fragments of the timers, showed that the composition of the explosives was similar to those used by the Indian Mujahideen. Suspicion of an ISI hand was aroused after Mohammed Sahir Hussain, a Sri Lankan national, arrested two days before the blasts, confessed that he worked for Pakistan Intelligence based in its high commission in Colombo. He said he was tasked by Amir Zubair Siddiqui, counsellor (visa) at the high commission, to gather information on installations in Tamil Nadu and Karnataka. Hussain added he had sent photographs and maps of US Consulate in Chennai and Israel Consulate in Bangalore to his handler.

Siddiqui’s name had cropped up earlier in 2012 when Thamim Ansari, a terror suspect, was apprehended on the way to Tiruchi airport to catch a flight to Colombo. Police recovered DVDs containing visuals of the army paragliding training and a parade of the army signal corps. He told the police that he was instructed by Siddiqui to take the videos, which also included Nagapattinam port and Madras Regimental Centre in Wellington. Further investigations into the Chennai blasts pointed out that Abu Backer Siddiqui, a member of the banned Tamil Nadu outfit, Al-Umma, had carried out the blasts. AlUmma’s operative Panna Ismail, who was in custody, also confirmed Abu Siddiqui’s involvement.

TERROR TRAIL (Above) The twin blasts at the Chennai railway station in May; (Inset) the Coimbatore attack in 1998

INDIA LEGAL June 30, 2014

LEAD / national security/ terror threat/ tamil nadu

POINT OF CONTENTION (Right) An LTTE suicide bomber detonates a bomb at a religious ceremony in Akuressa town in Sri Lanka on March 10, 2009; (Below) Activists from the Delhi Tamil Youth Forum demonstrate against Sri Lankan President Mahinda Rajapaksa’s visit during Narendra Modi's oath-taking ceremony

locations in Coimbatore, Tamil Nadu, minutes before BJP leader LK Advani was to address his election rally on February 14, 1998. Forty six people were killed and over 200 were injured in the blasts.

THE BRAVE NEW (Above) Law student Fathima Thahalia at a seminar in Calicut ove) Law student Fathima Thahalia at a seminar in Calicut ove) Law student Fathima Thahalia at a seminar in Calicut

UNI

The investigators suspect that Abu Siddiqui was trying to reactivate Al-Umma, which had gone into oblivion after the arrest of its leadership in 1998. Al-Umma, along with other fundamentalist Muslim groups, sprouted in Tamil Nadu following the demolition of the Babri Masjid and the rise of Hindutva groups like Hindu Munnani and VHP in the state. The terrorist organization gained notoriety when it carried out 13 bomb blasts at 11

June 30, 2014

OUTFITS LEAN ON POLITICS The DMK government’s follow-up showed the determination to crush the terrorists in the state. It banned not only the Al Umma but also Jehad Committee, another fundamentalist body. Key leaders of the Jehad Committee and the Tamil Nadu Muslim Munnetra Kazagham (TMMK), a Muslim NGO believed to be founded by former members of the banned terrorist outfit Students Islamic Movement of India (SIMI), were arrested. In the Coimbatore blast trials, 158 terrorists were convicted, of which 43 received life sentences in 2007. But the alleged mastermind, Abdul Nasar Madani, walked free. Given a hero’s welcome in Thiruvananthapuram (Kerala), he assured his support to the state’s Left Democratic Front (LDF) regime and said he would work for the welfare of Dalits and Muslims. In Tamil Nadu, the TMMK sobered down; it broadened its agenda to include human rights, reservation for the Muslims,

administration of Waqf properties and social security measures for the minorities. This helped the TMMK to leverage support during elections using the perennial confrontation between the DMK and the AIADMK. The TMMK cloned into several parties. The Tamil Nadu Thowheed Jamath was formed as a breakaway group, which further broke up into two factions—India Thowheed Jamath and Tamil Nadu Thowheed Jamath. Another competitive party that took birth was Manitha Neya Makkal Katchi (MNMK), which is allied with the AIADMK. It grew because of the weakening influence of the Indian Union Muslim League (IUML), the oldest Muslim party in the state. Yet another fringe group that gained notoriety was Manitha Neethi Pasarai (MNP), whose cadres were arrested in Coimbatore in 2006 for plotting serial bomb blasts similar to the 1998 blasts. All five cadres were acquitted in 2008. The MNP has connections with Kerala’s National Democratic Front (NDF), which formed the Popular Front of India (PFI) with MNP and the Karnataka for Dignity (KFD), another such organization, to coordinate its efforts. At present, the fundamentalist parties in Tamil Nadu seem to have more influence with the DMK than the AIADMK. This was evident when the DMK government released nine Al Umma extremists, sentenced to 13 years of jail, before they completed their sentences in September 2009. There is a need to understand the morphing of the fundamentalist groups into political parties. Though they have denounced terrorism, they tend to focus on the politics of confrontation. Their targets include the US and those responsible for attacks on Muslims, globally. This makes it important for terrorism watchdogs to keep their activities under watch. The other aspect is to curb the foreign connections of these mainstream parties. TAMIL ISSUE RESURFACES The plight of Sri Lankan Tamils recently became an issue in Tamil Nadu. This was

LTTE is trying to revive its activity in Sri Lanka, and Tamil Nadu is being used as a base for terror activities. The Tamil issue is supported by political parties in the state. compounded by the competitive politics among the Dravidian parties, as well as Sri Lankan President, Mahinda Rajapaksa’s poor post-war handling of issues related to the empowerment and rehabilitation of Tamil population. Rajapaksa’s development model focused on development of infrastructure and public services, without adequate efforts to resolve the core issue of political autonomy for the Tamils. He conducted the Northern Provincial Council (NPC) elections four years after the war on LTTE ended. And the Tamil National Alliance (TNA) government that came to power was not given a free hand even in exercising its limited powers. The retention of a retired general as the governor of the province has not helped in restoring amity. So, it is not surprising the LTTE’s offshoot abroad is trying to take advantage to revive its activity in Sri Lanka. There are scores of distressed families of LTTE cadres and sympathisers of Tamil Eelam separatism in the Northern Province. Most of the 13,000 “rehabilitated” LTTE cadres in Sri Lanka are without employment. Army still occupies chunks of private agricultural land despite promises to return them to the rightful owners. TERROR STRIKES BY LTTE According to Sri Lankan analyst DBS Jeyaraj, there were three attempts by overseas LTTE elements to trigger activity in Sri Lanka. Significantly, there was a Tamil Nadu connection in all the three attempts. The first attempt was discovered in March 2102 after investigating the murder of a member of the Eelam People’s Democratic Party (EPDP, led by Cabinet Minister Douglas Devananda) in Trincomalee district. A handwritten note “death to traitors” with the Tiger emblem was found near his body. Intensive interrogation of suspects uncovered an attempt at the revival of LTTE assisted by the Vinayagam faction of the overseas LTTE. INDIA LEGAL June 30, 2014

LEAD / national security/ terror threat/ tamil nadu

SINISTER DESIGNS (Above left) Theiveegan, who was killed by the security forces in Sri Lanka this year, was a bodyguard of the LTTE chief Prabhakaran; Although alleged mastermind of the 1998 Coimbatore bombings, Abdul Nasar Madani (above right) was acquitted of all charges

Thorough interrogations also brought to the fore other revival attempts assisted by the Vinayagam faction of the overseas LTTE. Kumaran of the Vinayagam faction in Paris recruited 15 former LTTE cadres in Tamil Nadu and organized them into three cells of five members each. One of these cells was sent to Trincomalee in the Eastern Province of Sri Lanka in order to carry out the killing of the EPDP cadre in March 2012. The second attempt at LTTE’s revival was uncovered in December 2012 when a former LTTE cadre was arrested in Colombo. It led to the startling discovery of “a clandestine campaign” underway in Tamil Nadu to recruit Sri Lankan Tamil youths sympathetic to the Tamil Eelam cause and indoctrinate them with the LTTE ideology. This was being financed by the overseas LTTE elements. Based on the information provided by Sri Lanka, Tamil Nadu police raided a house in Pammal on the outskirts of Chennai and arrested four occupants—S Suresh Kumar, D Udaya Doss, T Maheswaran and K Krishnamurthy—in December 2012. Suresh Kumar headed an LTTE team that made explosives. Police recovered documents, electronic

The fundamentalist parties in Tamil Nadu may have taken the political route for legitimacy. But, they still harp on the politics of confrontation. 30

June 30, 2014

circuit boards and panels from the house. In March 2014, the Ministry of Defense in Sri Lanka ordered the freezing of all funds, assets and economic resources belonging to 16 Tamil diaspora organizations and 424 select individuals, “believed…. to be committing, attempting to commit, facilitating or participating, in the commission of acts of terrorism.” A Gazette Extraordinary notification, signed by the defense secretary on March 20, 2014, listed them in accordance with the UN Regulations No 1 of 2012. The latest attempt by LTTE was in March 2014. A former LTTE cadre Ponniah Selvanayagam Kajeepan, aka Gobi, opened fire on a policeman in the Kilinochchi area of Sri Lanka. The security forces carried out a search to hunt him out. In the end, they killed not only Gobi, but two other former LTTE cadres, Suntharalingam Gajatheeban, aka Theiveegan, and Navaratnam Navaneethan, aka Appan. Further investigations and interrogation of suspects revealed Theiveegan, a former bodyguard of V Prabhakaran, was a black tiger as well as a pilot, who had flown sorties for the LTTE. He was in touch with leaders of two LTTE’s rival factions abroad— Nediyavan in Norway and Vinayagam in France. Theiveegan made many trips to India to keep in touch with contacts. Sri Lankan intelligence discovered that Theiveegan had the support of another senior LTTE leader Dayamohan, who had sought refuge in Switzerland. FRAUGHT WITH PERIL Sri Lanka is finding it difficult to grapple with Tamil Nadu becoming a base for the LTTE and the support for Tamil separatists among political parties in the state. The DMK and the ruling AIADMK have adopted a strong stand against the Rajapaksa government. Can these parties be weaned from their negative focus if Rajapaksa walks the extra mile to make it happen? With the change in leadership in New Delhi, the Modi regime has its work cut out. IL

The author is associated with the Chennai Centre for China Studies and the South Asia Analysis Group

INFRA /development-environment debate

growth got mired in environmental clearances under the UPA regime. modi has to perform a fine balancing act between job creation and conservation to steer the country on the path of economic recovery By Naresh Minocha

T is official now. A decade of UPA (I and II) rule did lead to high economic growth rates, except in the past two-three years, but it did not lead to higher employment opportunities. It was an era of jobless growth, something that policy makers and economists dread. Indiaâ&#x20AC;&#x2122;s new prime minister, Narendra Modi, will need to change this to prove his governance model and fulfill his partyâ&#x20AC;&#x2122;s promises to accelerate growth and generate employment opportunities. The National Sample Survey (NSS) data shows that from 1999-2000 to 2003-04, when the Atal Bihari Vajpayee-led NDA ruled, an average of 7.5 million manufacturing and services jobs were created every year. The figure remained the same between 2004-05 and 2011-12, when the UPA was in power, although the annual growth rates in this period were

GREEN SIGNAL TO

GROWTH Illustration: Amitava Sen

June 30 2014

much higher. More important, 36 million agricultural workers withdrew from the workforce during UPA’s regime. If this hadn’t happened, the unemployment rates would have been much higher. So, were the two UPA regimes responsible for this lopsided growth? The answer is probably yes. Despite their good intentions, the previous governments tied the development process in legal knots. They swung the pendulum from exploitative growth to a slightly anti-development one that gave precedence to environment and the locals’ rights. Instead of making it a process of give-and-take, they possibly reduced project-approvals into a clash of interest groups. Critics alleged that issues of national security took a back seat. The approval given to a uranium project in Meghalaya was scrapped when the Standing Committee of National Board on Wildlife (NBWL-SC), chaired by environment minister Jairam Ramesh, decided to reject the application for uranium mining to respect the local people’s sentiments. The NBWL-SC held up environmental approval to a Coast Guards’ project of radar surveillance in the Andaman & Nicobar Islands to protect the natural habitiat. It also deferred clearance for the Border Security Force’s road project in Kutch because the road would have affected the only breeding ground of flamigos in Asia. Judicial activism—some may say rightly —in environmental cases added to the problems. The courts stepped in to block projects, or forced the government to rethink its clearances. The blanket ban on mining in several states was one such instance. The scrapping of 122 2G licenses was another; the Supreme Court could have allowed licensees, who were not favored, the option to pay the market rate for the spectrum. RULES THAT STIFFLED Although many of the laws related to land acquisition, environment and locals’ rights were driven by the right motives, they were either misused or abused. For example, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, popularly referred to as Forest Rights Act, empowers tribal communities in specific

Vulnerable environment? The environment and forest ministry, under Prakash Javadekar, is bringing about the following changes to ease clearances for industry, but in the process sidelining green debate: New online system, effective from July 1, to ensure faster clearances for projects Application process to be user-friendly Time limit for the entire approval process, with time limit for every stage of approval Environment ministry to reduce the number of parameters defining forests, from six to four Hydrological value and economic value of produce to be scrapped as parameters, to make available more land for industry This will leave tribals and forest dwellers, who depend on their forest habitat, highly vulnerable

regions to reject any project. However, in some cases, the local NGOs or politicians have emerged as the real arbiters of mining or hydel power projects. The new Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013, also called the Land Acquisition Act, was meant to decimate the cozy crony-capitalist links between builders-businessmen and politicians, which ensured ridiculously low payments to farmers, whose land was acquired. However, the new act made land acquisition a more cumbersome process. The National Green Tribunal (NGT) Act ensured the setting up of special courts that could look into environment-related cases to fast-track them. But, as one has witnessed in the recent past, such courts were used by vested lobbies to stall projects. In some cases, the tribunals ruled against the projects, despite the latter getting government clearances. The fact is that the NGT has sweeping powers that can harm business interests. Clearances also came with riders. For instance, thermal projects require domestic coal linkages or imported coal tie-ups as prerequisites to get environmental approvals. An in-principle forest approval for a coal mine that would supply fuel to the power plant is essential for the clearance. The sourcing of imported coal from a mine other than what is mentioned in the application could trigger fresh public hearing for a project. INDIA LEGAL June 30, 2014

INFRA/ development-environment debate

Courtesy chdtechnicaleducation.gov.in

COMMUNITIES vs PROJECTS (L-R) While the new government’s focus will be on skill development and job generation on a large scale, it cannot lose sight of the rights of local communities, as mega projects come up

June 30, 2014

A first-stage environmental clearance (EC) of terms of reference (TOR) for environment impact study for a project comes with different riders. These include: the grant of TOR does not imply grant of EC, the grant of TOR or EC to a project does not imply grant of TOR or EC to the captive or linked fuel supplier, and the grant of TOR or EC to a project does not mean grant of approvals as per Forest (Conservation) Act, 1980, or the Wildlife (Protection) Act, 1972. The UPA regimes converted lakhs of square kilometers into “no-development zones” by creating 10-kilometer wide ecosensitive zones around national parks and wildlife sanctuaries and by notifying 59,940 square kilometer of forest area of the Western Ghats as “no-tolerance policy” area. It prohibited the setting up of some kinds of projects in coastal areas under the Coastal Regulation Zone notification, and introduced “no-go” areas in tiger reserves. One can legitimately argue that these laws and rules are imperative to manage the environment, ensure conservation, uphold the rights of exploited tribal and other local

communities and prevent India from going the China way. The challenge is to balance the environment and development needs, i.e. to integrate the conflicting rights of people likely to be affected by these projects with those of unemployed and under-employed citizens. Both are equally important, and some may say that the rights of 400 million poor are more crucial than the 20-30 million jobs that may be created if clearances are given without due attention. AGENDA FOR NDA If Modi has to spur development without causing damage to the environment and prevent communities’ exploitation, he can reinvent the approval process. Instead of varying clearances required for projects from the environment ministry, Forest Advisory Committee, Standing Committee of National Board on Wildlife, and others, which can take years, the NDA can impose a single-window system, in which these bodies are adequately represented. A projects approval authority, which includes representatives of the relevant min-

Ministry of Tribal Affairs

istries, can be set up. Advance rulings by NGT, like it happens in the case of income tax tribunals, can reduce the chances of a project being stalled later because of PILs or suo moto hearings. But care needs to be taken to still allow appeals later if the project developer does not adhere to the letter and spirit of the various clearances and advance rulings. These may be the precursor to the Supreme Court’s directive to constitute an environmental regulatory authority. In addition, a new law, called the National Development & Jobs Creation Act (NDJCA), can be enacted. Its provisions should get precedence over provisions of other laws. The NDJCA should have a clause for the formation of a statutory state-owned corporation to restore closed mines and develop them into tourist spots. It can oversee the operation of satellite-monitoring of all mines to prevent exploitation, illegal acts and corruption. The act can provide for building of houses, schools and other essential facilities, apart from new skills training for affected communities before the commencement of

A new act to link national development, job creation and inclusive growth should get precedence in the agenda of the Modi government. the projects. It can provide for income to land owners in the form of annual annuities payable over 35 years. To improve workers’ productivity and safety, the government can also enact the Dignity of Labor Act (DLA) to stop exploitation of contracted or outsourced employees. It can stipulate minimum wages and employment terms for each category of employees. It can also provide for supply of safety gears to workers operating in life-endangering factories and mines. If the Modi regime can push through these initiatives and achieve these objectives, it can spur investments, while protecting the environment and the rights of affected communities and labor. Without them, the Achhe Din Aane Wale Hain slogan may turn out to be a mere election—and forgotten—rhetoric. IL INDIA LEGAL June 30, 2014

SPOTLIGHT/ uttar pradesh / badaun rape-murders

Harvest of

SHAME

pm’s speech and cbi probe cannot take away from this harrowing tale of cruelty, hatred, misogyny and misgovernance—exemplifying life as nasty, brutish and short—that unfolded as activists traveled to uttar pradesh’s katra village to understand why humans turn into beasts By Hema Badhwar Mehra with Shefali Misra

LTIMATELY, the rape and hanging of two minor girls in Katra, Badaun, that has provoked worldwide outrage, is the result of a systemic rot. It has happened before—maybe not in this defiant and intrusive way that challenged every civilized norm and mocked every law ever made—and it will continue to happen, unless the caste divide disappears, laws change, education imparts what it is meant to impart, politicians care enough, our rural areas begin to permeate into the active conscience of a society consisting of people like us, who think that it is made only for us, and till the time we see all of India as one, without this great divide, and understand at a seminal level that this country belongs, in equal measure, to all of its citizens, at all times. How much of it really means anything to urban India, we do not really pretend to understand. No one has held candle light marches against the breakdown of law and order in Akhilesh Yadav-ruled Uttar Pradesh. No one has sat in silent sorrow at the stark reality of this possibly being a purely casteist crime. Mothers (belonging to the Muraon community) repeated the horrific story of their girls disappearing around 10.30 at night on May 27 and the helplessness they felt at the subsequent inaction of

THE CASTE MESS (Facing page) The two teenage girls found hanging from a mango tree in Katra; (below) the inconsolable mother of one of the victims

UNI

June 30, 2014

the constables when they reported them missing to the local police chauki that night. The story got a bit garbled when the other women chimed in. Somewhere there are two versions. One that states that the girls went to defecate in the fields and were picked up by the Yadav men, another that says the men, drunk and looking for women, went to the house and took them away at gun point. The point is, it doesn’t matter much, the manner in which they were abducted. What matters is that there was no one to listen, and no one to stop it from happening. Those who were meant to deliver justice seemed sympathetic to the criminals. The parents and the local villagers spent the entire night searching for the girls by torchlight, since there is no electricity in the village. No one thought to cross the fields and walk to the orchard 10 minutes away. And when day finally broke they were told by the chauki constables to go look in the orchard; the girls would be found there. And they were. Hanging from a mango tree, raped, killed and displayed.

“Yeh chauki nahi theka hai. Gunda raj ka adda hai (this is not a police post but a den of miscreants’ rule). When we went there last, the police got us to sit on the floor and the offender (who came from a stronger community) sat next to the head constable.” —-A VILLAGER FROM KATRA

n Katra village, we were received with open arms. The stories came pouring out—of eve teasing, harassment of girls, violence against women, kidnapping and sometimes rape. Most go unreported. Girls being married off by the time they are 12 and 14 are common. Why? How else do you keep your girl safe? Besides, what else does one do with a post-pubertal girl? There is no education; there is no way for her to earn any money. And the minute she reaches the age of sexual maturity she becomes the cynosure of male eyes, looking for easy prey. It is the classic syndrome of the strong versus the weak, the rich versus the poor. Land grabbing, crop stealing, gunda gardi INDIA LEGAL June 30, 2014

SPOTLIGHT/ uttar pradesh / badaun rape-murders

“We have never seen so many cars come into our area. Mayawati came with about 100 cars yesterday. It’s the biggest event ever in our area.” — KRIPAL YADAV, resident, Trilokpur, on the VIP and media circus Photos: Hema Badhwar Mehra

year and whose remains were found a week later, tied up in a sack and thrown into a ditch. In some pagan ritual to a fertility God, the little child had been used as a bali (sacrifice). The case was eventually registered but it turned out that the perpetrator of the crime was yet again a Yadav. The family was coerced into accepting a sum of `10,000 and made to leave Katra village. The case was closed and Phoolan was left with nothing but the images of her limbless child wrapped in a sack. She had returned to the wretched village to weep with her friends, to share their tragedy, and to relive her own horror yet again. Katra is perhaps a case in point of what the Dalits suffer. We visited other villages nearby and far off. Perceptions differed with different communities. PUTTING A PRICE (Top) BSP leaders offering `5 lakh per victim to the families; (above and facing page) the victims’ families and other villagers, suddenly at the center of media attention

June 30, 2014

by the strong-armed, dominant-caste Yadavs are the norm. The local politicians support the criminal elements; the criminal elements support the politicians. The local police turns a blind eye, sometimes aiding and abetting, earning their haftas, cozying up to the powers-that-be, for the little push up the rung of the ladder. You scratch my back, I’ll scratch yours, and together we’ll ensure that not one voice is raised in protest. A classic and sorrowful example was Phoolan Devi (namesake), another Muraon, who, amidst heaving sobs, told us of the horrific story of her little boy, kidnapped last

t nearby Trilokpur, a tiny but rich hamlet of Yadavs, the village elders had a different perspective. They spoke of leading a decent and fearless life, with full bellies and zero crime. Living a bare 10 kilometers away from Katra, they may well have been living abroad. The Katra tragedy hadn’t touched their lives. They had never witnessed a media circus before and it was entertainment for them, as they sat in their comfortable way-side chaupal, with hookahs, snacks and cups of tea watched the VIP cars whizz past.

on mobile phones and its impact on the uneducated, adolescent minds that could not differentiate between real life and reel life. From Hazratganj emerged my first glimmer of hope and understanding of the whole. However, across most communities and villages the message was unanimous, as far as this crime and others like it were concerned: “Castrate the bastards, hang them from the same tree and let them die a slow and horrible death. Let a strong message go out to the entire community, so that not one man will ever dare to do this again... . This cannot, and should not go unpunished. They have been caught and action should be swift....”

Their take on the tragedy was rooted in old beliefs: “It can’t be the fault of one person alone. Even a dog does not come sniffing for food to a house that does not throw him morsels. These people are known to be of loose character. Why should a mother not keep her daughter safe?” The Lodhas of Athaiya, some 40 kilometers away from Katra, were foggy about the details of the crime. But when we enlightened them, the reactions were that of shock and horror. Women wept, some hugged their daughters close. Initially denying prevalence of crime in their protected Athaiya, a pretty little village with clean lanes, golden fields, and shady peepal and pakar trees, the villagers opened up about wife-beating, drunken husbands, petty thefts and lack of every conceivable facility. Het Ram, a village elder, shrugged his shoulders and grinned his semi toothed smile. “We’ve lived like this forever; nothing is going to change.” The Thakurs of Hazratganj, introduced to us by an old family friend and respected Thakur leader, Rajesh Pratap Singh, at his beautiful and timeless haveli, were vociferous, articulate and educated. They spoke of the breakdown of law and order, the laxity of the police, the brashness of the Yadav community, the lack of education, the negative impact of an explicit social media, and the availability of information and pornography

ut visits to police thanas across the district, first to Usait, where the crime was reported, and which is about a 15minute drive from Katra, then to the district headquarters at Badaun and finally to Ujhani, told us a dismal story. At Usait there isn’t a single female constable; they have to be called in from Badaun, about 25 kilometers away, if and when required. The Usait station officer’s story was so flawed that novices like us could have picked holes in it. It was also at Usait that we met the chairman of the municipality. He was the one who helped cut the ropes to bring down the two girls and he was the one who reiterated that the rapists had been drinking at the police chauki at Katra and had asked the constables to provide women. The stories across the police thanas are the same. What they say and what they do are completely at odds. Villagers insist their complaints are not recorded unless you are ready to pay. The police of course insist that every crime is recorded and diligently followed up. But they also admit to a lack of resources, manpower, vehicles, and most importantly, of training. Traversing rural terrain is not easy; it often takes a police jeep in far flung village outposts almost 40 minutes to an hour to get to the scene of the crime, enough time for the perpetrator to cover his tracks and create an alibi. The local police chaukis in the villages are manned by two, or at the most three constables; most of them are on the rolls of the local goons, whose private force they become. It is a story of neglect, complete lack of manpower, gross dereliction of duty, lack of

“Unfortunately justice is not swift. Hardened criminals are enjoying state facilities in jails. Speedy disposal of such cases is an absolute essential. Investigating officers must be held responsible for their submissions, and any officer found guilty of admitting false information must be severely punished because there is also the danger of misuse of laws. — SHAHID AZAD, advocate, Delhi

“The promotionhungry police officers will go to any extent not to register cases. They don’t want the crime record in their district to look bad, so the best thing is to dissuade people from registering cases.” — A SOCIAL WORKER INDIA LEGAL June 30, 2014

SPOTLIGHT/ uttar pradesh / badaun rape-murders

“In our area the Yadav community is in a majority. They think they are above the law. Why is it that over 60 percent of the police force in this area consists of Yadavs? There must be a cohesive mix of castes and more so at the senior levels, so that no one community feels it is protected by ‘biradari’.” — ASHOK VERMA, advocate, Badaun

empowerment and lack of sensitization. Above all what stuck in my mind was the fact that whichever name badge we looked at, read “Yadav”. Raminder Singh Yadav, Pappu Yadav, Sarvesh Yadav, Ashwini Kumar Yadav, and on and on, till I grew dizzy. Maybe our minds only registered the Yadav surname. In twisted ways, the BSP has manoeuvred the incident to its advantage. While ensuring that the family refused any relief offered by the central government, Behen Mayawati ji sent `10 lakh through the local BSP MLA Sinod Sakh and his cronies, because the Muraons happen to be their vote bank. And the two families had no choice but to accept the dole. It’s about 10 lakh to make up for the brutal rape and hanging of their daughters. Five lakh apiece. It’s about offering sops to make up for lawlessness. When we raised this issue with the BSP leaders, they shrugged their shoulders and blamed it on “SP’s gunda raj in the state”. They brushed the dust off their crisp white political kurtas and left us to deal with the hundreds of complaints that poured in. In fact they directed them to us, saying: “They are attached to ‘welfare organizations’ from Delhi and will be able to help you, we cannot do a thing because of the SP sarkar raj.” It’s also about passing the buck.

hat systems have broken down completely is a fact. Lack of education in the area is rampant. Apart from Hazratganj, in the other villages we visited, the education level of the girl child is zero.

Is there a legal aid at hand? There is a District Legal Services Authority (DLSA ) headed by none less than the chief judicial magistrate. It is meant to serve as a legal aid. However, in reality it is understaffed, poorly equipped and relatively unknown. A wellintentioned body, it consists of three people in Badaun, who were keen to get involved in order to assist the

June 30, 2014

afflicted family, but needed the impetus and the means to do so. The DLSA has amazing potential, provided it is utilized properly and awareness of its existence created in the district. We came away after a meeting with the CJM promising to assist him as independent volunteers for awareness building programs in the future.

UNI

There are no schools, and if there are schools, there are no teachers. The “acceptable” schools are many kilometers away and it’s not safe for girls to traverse these paths alone. Lack of sanitation facilities further make the girls vulnerable to the abductors on the prowl. There are no toilets anywhere in the villages we visited. But more dangerously, there is no electricity. It’s not that these families are dirt poor. They have land, they have cattle, and they have poultry. But they have nothing else that India in the 21st century can be proud of. Roads are non-existent, drainage systems do not exist, and healthcare facilities are random and poor. Babies are birthed at home by the local dai. Violence against women is taken for granted, so is the demand for dowry and the fact that girls are often still sent back home if dowry demands are not met. And no one is listening. It’s all rather twisted and unreal. All the more so when you understand at a deep gut level that these really are the hands that feed India. In a country where Durga, Shakti, Kali, and an entire pantheon of goddesses are revered and feared, it is an anomaly that the goddesses that walk on land and live and breathe and procreate, have to live in a mute world. It is no longer enough that we the privileged count ourselves as equals; there is a far greater number that do not have a voice. It is time for us, to save our women. IL

THE NATION/ nda /governance

Is Modi Overburdening Himself? the prime minister will need a highly efficient and trustworthy support system to implement even his basic priorities By NV Subramanian Sipra Das

DAUNTING TASK Modi needs an effective number two to run the government

IN THE RECKONING Can he fill the shoes as Modi’s deputy?

LACK OF EXPERIENCE Rajnath hasn’t shown much to fit the bill

MODI’S WINNING CARD Shah will be preserved for clinching states for the PM

IDEAL CHOICE Parrikar is the best option for the next in command

SLIM CHANCE Sushma may not make it to the coveted post

O his prime ministry, Narendra Modi has added the duties of the presidency of the BJP. Rajnath Singh formally remains the president of the party. But since becoming union home minister, he has generally let Modi steer the party forward. Is Modi taking on more responsibilities than he can handle? Can he meet the galloping expectations of people without promoting able lieutenants both in the government and the party? Who might they be? Answers to these questions are obscured in the thick haze of the future, but some guesses may be hazarded. Modi will succeed in the goals he has set for himself. These goals would not be known to you and me until they are met. He thinks big. He is much focused. And he is building the foundations for the great leap forward without the bloody Chinese characteristics. His 13-year record in Gujarat, despite an antagonistic central government, and his brilliant general election campaign, conducted against great INDIA LEGAL June 30, 2014

THE NATION/ nda /governance

ON PROBATION? The Modi cabinet will be on trial for the first six months

odds, point to the blunder of underestimating his capabilities. He is a political genius. But, even Narendra Modi has his limitations, and surely, he is aware of them. However wonderful an administrator, Modi cannot run the government alone. His task now is still more daunting. No one should really envy Modi’s job. Small wonder that Rahul Gandhi frightens away.

he UPA had rendered the government comatose and Modi has to revive it. He needs a great cabinet and it is not readily apparent that he has one. Modi currently needs a clutch of performing ministers to go with his mantra of small government. He does not seem to have a talented team, overall. It is too early to judge, certainly. But one fact is inescapable. Narendra Modi needs a great deputy in the government— someone of the reputed caliber of the chief minister he chose for Gujarat after him.

If the Modi model is to succeed, there is an urgent need to expand the party’s reach to get as many state governments as possible well before his term ends. 42

June 30 2014

Who might that be? Arun Jaitley, who has the simultaneous charge of two ministries, although Arun Shourie or Goa Chief Minister Manohar Parrikar are being tipped as the next defence minister? Or is it Rajnath Singh, who is senior by virtue of being the BJP president, but has never shown particular administrative capacity? Sushma Swaraj does not readily qualify as Modi’s likely number two because of their past differences, and also because she is not rated highly in governance matters. Manohar Parrikar would be a good number two, because he is a successful and an innovative chief minister and knows when the buck stops with him. But Modi should also seek him, and Parrikar must consent to work under him. Modi’s entire cabinet is on trial for a period of six months to a year and a reshuffle thereafter would reveal the true contours of his government for the rest of the term. Modi is playing by the ear and taking huge risks, a known risk taker that he is. But while understanding the danger of losing six months to a year in weeding out the non-performers, he has also no choice. He has had to go with what he has, keeping the party interests in mind. But he would also realize he is losing time in the process and making the electorate

In an ideal situation, Manohar Parrikar is a good number two. He is fruitful and innovative as the chief minister of Goa.

UNI

anxious about delivery. In the circumstances, he would have to hurry the trials, and accelerate the process of choosing a deputy. Modi knows what to do. But he still has to do it. And the process isn’t going to be easy.

he prime minister’s simultaneous task is to strengthen his hold over Parliament so that his government gets on a solider footing. He has a Lok Sabha majority but the BJP and its present allies are weak in the upper house. To govern effectively, Modi needs to take outside support in the Rajya Sabha, which would come at a price. Until the BJP forms its government in more states, Modi would be willing to pay that price. He would need more states under the BJP rule because that is when his prime-ministerial writ will truly run. There is an urgent need to expand the party’s reach to get as many state governments as possible well before his term ends, which is a sine quo non for the Modi model to succeed. On that success alone will come a second term. To make that happen, he would have to ride hard the BJP, although as the prime minister, he would have less time for party affairs than he got as Gujarat’s chief minister. So Narendra Modi needs a capable deputy as the BJP president. This may or

may not be Amit Shah, because Modi is known to value the party tradition of not having the prime minister and the party president from the same state. But he would still need Shah to get him the states, like he obtained a majority of Uttar Pradesh’s Lok Sabha seats. Modi needs to gain Uttar Pradesh for the party because only then will his development model really succeed for India. He won’t at all neglect it in the interim. He cannot afford to do so. But if he gets Uttar Pradesh, Bihar and Maharashtra, he can turn around India definitely, and on a scale that matters.

his reinforces the need for a good deputy for himself in the government to handle day-to-day administration and Modi needs a first-class points-person in the party, who may or may not be its president. And, Modi has to manage all this without provoking heartburn, revolt and other standard toxicities of political parties. Then there is also the Rashtriya Swayamsewak Sangh to consider, which may not like a too-independent Modi. To repeat the question: Can Modi manage all this? Yes. But it will take its toll. His first five years will be the toughest. He will have to deliver in the short- and medium term. Though he is a quick learner, there will still be considerable learning to do. He will make even more powerful enemies than before. The rest of the world won’t give him peace. But once he gets past these hurdles, nothing can stop him. If all goes well, Narendra Modi may turn out to be one of India’s greatest prime ministers. Don’t miss the prefacing “if ”. Narendra Modi won’t. IL

NV Subramanian is editor, www.newsinsight.net and writes on politics and strategic affairs. Views expressed here are personal INDIA LEGAL June 30, 2014

RIGHTS/ social media /censorship

Off with his Face! the main problem is not freedom of discussion for politicians or media bigwigs but the random and wholly unpredictable risk faced by the little guy, should he attract the ire of overzealous officials or bigots. today, even a facebook “like” can get you into legal trouble By Jagdish Sagar

E read not long ago that one Devu Chodankar of Goa (apparently a Hindu) was wanted for custodial interrogation about this and possible other Facebook posts: “If Modi is elected as PM this election, Christians will lose their identity in South Goa…There is an imminent holocaust as happened in Gujarat under the garb of cunning of (Goa CM) Parrikar.” The police, as reported, wanted Chodankar in custody to ascertain his “true intentions” and whether he had deleted more posts. Chodankar has since surfaced, at least in the media, and has reportedly explained that his post was a “knee-jerk reaction” to the induction of Muthalik, of the Sri Ram Sene, into the BJP; he had removed the post as soon as the BJP removed Muthalik. I hold no brief for the PM or the Goa CM but obviously what Chodankar said, taken literally, was poppycock; as rhetorical hyperbole, it was over the top. But the question is not whether Chodankar was right, or even talking sense: the question is, did he commit a criminal offense? As reported, the FIR was registered under Sections 153A and 295A of the Indian Penal Code (“IPC”), Section 125 of the Representation of the People Act (RP Act) and Section 66A of the Information Technology Act (IT Act). The criterion for an FIR is that the information discloses a cognizable offense; stronger grounds are needed to make an arrest. Now it’s far from clear that the facts actually

June 30 2014

Amitava Sen

make out any of these offenses, much less a case for custodial interrogation. To be liable under Section 153A of IPC Chodankar would need to have promoted or attempted to promote “disharmony or feelings of enmity, hatred or ill-will” between people of different religions. But Chodankar merely expressed concern about such hatred and ill-will (as he thought) in a party, and what he feared (howsoever unreasonably) that the government might do to Goan Christians. He wasn’t promoting enmity, hatred or ill-will between Hindus and Christians, rather the contrary. As for Section 295A, did Chodankar really try to outrage any religious feelings by insulting anybody’s religion or religious beliefs? He didn’t say a word against either Hinduism or Christianity. The police seem to have enlisted Section 125 of the RP Act because it criminalizes the promotion of “feelings of enmity or hatred, between different classes of the citizens…” on grounds of religion, race, caste, community or language if it’s done “in connection with an election”. Now precisely the same thing, if done by a candidate, is also a corrupt practise under Section 123(3A) of the same Act, and in both instances the charge must be proved beyond reasonable doubt. In Ebrahim Suleiman Sait vs MC Mohammed and Anr. the Supreme Court found that the following speech to a large gathering had not been proved to be an attempt to promote hatred between different classes of citizens: Sait said: “...the Society will never forgive the anti-religious league people… these people had helped the Jansangh which had killed many Muslims in Northern India and at Tellicherry and had burnt the sacred mosques. Their people have also been leading the poor Muslims towards the camp of communal reactionaries and therefore Society can never forgive them…these anti-religious people were by spreading lies and false propaganda blackening the faces of the leaders and giving away the secrets of our society to marxists and the Hindu leaders…” That, the court held, did not attract Section 123(3A), being directed against certain political parties rather than a religion or

Chodankar’s post had no communal tone or element of hatred, ill-will or enmity to it. It was written against a political party, not a religious community. community, notwithstanding that “…it cannot be denied that its tone is communal….” Now Chodankar’s post wasn’t even communal in tone, and was merely directed against a political party.

The chill

nder Section 66A of the IT Act (inserted by the UPA in 2008) it is an offense (a) to electronically communicate any information that is “grossly offensive or has a menacing character”; or (b) to do so for the “purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will…” But the latter offense is made out only if the electronic communication was persistent and the perpetrator knew the information to be false. There being no legal definition of “grossly offensive” or “menacing character,” the police can interpret these terms as they like; though it isn’t clear why the persons concerned should actually feel grossly offended or menaced (maybe just transiently annoyed if they couldn’t laugh it off ). Coming to (b), the police admittedly had nothing to show that Chodankar had done what he did persistently—rather, they wanted him in custody to fish for it. And who can say that, during that “knee-jerk reaction,” Chodankar knew his prediction was false? Could we assume that Mani Shankar Aiyar knew his most famous prediction, that Modi’s best career option was selling tea at Congress jamborees, would turn out to be quite as wildly off the mark? Anyway, what does one say of a law that can send you to jail for three years for knowingly and persistently purveying false information just to cause “annoyance”? Don’t persist with your April Fool’s Day pranks. The Supreme Court is seized of a constitutional challenge to these blunderbuss provisions of the IT Act in Shreya Singhal vs

Even as this story was being written, news broke that a Pune-based Muslim techie, Mohsin Sadiq Shaikh, was brutally beaten to death by a fanatical band of cultists protesting an “objectionable” Facebook post. Seven suspects were arrested. Debate now rages afresh on India’s growing intolerance for dissent and freedom of expression.

INDIA LEGAL June 30, 2014

RIGHTS/ social media /censorship

LIKE AT YOUR OWN RISK Shaheen Dhada and Renu Srinivasan were arrested when the former posted a comment following Shiv Sena leader Bal Thackeray’s death, and the latter merely “liked” it.

June 30, 2014

Union of India; Mukul Rohatgi, a possible Attorney General, appeared for the petitioner. I haven’t seen the petition, but freedom of expression can be curtailed only by a law that meets the tests of Article 19(2) of the Constitution: it must be both a reasonable restriction and “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to offence”. Section 66A clearly doesn’t pass either test. Besides, it is well-settled that arbitrary authority is inherently discriminatory, violating Article 14 (equality before the law and equal protection of the laws). Section 66A is also discriminatory for violating Article 14 by unreasonably restricting just one means of communication: this matters since social media are about the only way for ordinary people to get their voices heard. Finally, there could be a case for defamation, but the police can’t initiate that. The law of defamation is less rigorous about comments on public figures than comments about ordinary people. Since Chodankar has removed the posts there’s little possibility of any injunction against him; in a civil suit, therefore, the plaintiffs could probably hope for damages at best; and I don’t see Chodankar actually going to jail for criminal defamation. Anyway it’s hypothetical whether the people defamed would find it worth their while to pursue this matter against poor little Chodankar. The only thing really unusual about Chodankar’s post is the extravagant terms in which he engaged a very common topic: rival concerns about majoritarianism and “pseudo-secularism” (that remarkable Indian

neologism) have long been the stock-in-trade of our political debate. Now if some familiar political face known for controversial statements (not naming names) were to say such a thing, it would probably be all over the news for our entertainment: we might hope to see five or six people in little boxes screaming to teach other on the small screen under the active supervision of, say, an Arnab Goswami or a Barkha Dutt. If an FIR were to be lodged against such VIP, so much the better for those who make their living off the news (a necessary and useful profession, let me add).

he real problem is not freedom of political discussion for politicians or media pundits and media houses, which they do generally (though not always) have, but the wholly random and unpredictable risk faced by the little guy who ventures a piffling political thought on Facebook, should he attract the notice of some over-zealous police officer—and there will always be officers who think they know which side their bread is buttered. Political organisations, even their lunatic fringes, don’t suffer such suppression and do usually support it outside the charmed circle of people with clout—though they’ll differ loudly about whom to suppress. But we mustn’t single out the people currently in power: they won’t the first to put down free expression (remember Indira Gandhi). Kapil Sibal, the former law minister, wanted tighter controls on social media, reportedly because of comments on our erstwhile First Family. It was a Congress government in Maharashtra under whose watch a couple of young girls were arrested for quite harmless comments on the funeral obsequies (is that the word?) of the late Balasaheb Thackeray; and then the Maharashtra police arrested the author of some (admittedly tasteless) political cartoons. The authorities in West Bengal have earned a reputation for hounding uninfluential people who disagree with or make fun of Didi. Those now in power, should they continue to follow such precedents, will be able to fall back on Sir Isaac Newton’s modest disclaimer, that they merely “stood on the shoulders of giants”. IL ©Jagdish Sagar

RIGHTS/ death sentences

Still Hanging at a time when civil society, angry at the growing rate of crimes, is clamoring for harsher punishment as a deterrent, the Supreme Court is commuting death sentences of criminals. Why? By Meha Mathur

Amitava Sen

N June 2 this year, when the Supreme Court commuted the death sentence of Yakub Memon, the mastermind of the 1993 Mumbai blasts that killed 257 people, on account of his having been incarcerated for the last 20 years, it was just the latest in the series of commutation decisions in the last one year. Consider these: Just a few weeks before, the apex court commuted the death sentence given to convicts in the American Center attack case in Kolkata, which had killed four people and injured 20 in 2002. In January this year, it took up the writ petitions of 15 convicts in separate cases, whose mercy petitions even the president had rejected, and spared them from the gallows on account of bureaucratic delays to deal with the petitions. The apex court commuted the death sentence of Devinderpal Singh Bhullar, convicted for a 1993 blast in Delhi, to life in jail, because of his mental condition. It showed mercy on Sushil Sharma, the convict in the Naina Sahni murder case of 1995. And, last but not the least, the country witnessed much political debate over the apex courtâ&#x20AC;&#x2122;s decision to commute the death sentences of three men convicted in the Rajiv Gandhi assassination case, a few months ago. In this case again, the president had rejected their mercy petitions. INDIA LEGAL June 30, 2014

RIGHTS/ death sentences

“Even convicts have rights” Pravin Parekh, the president of the Supreme Court Bar Association, says the president of India should decide on a mercy petition within a reasonable time. Excerpts from an interview: Why should the delay in deciding a mercy petition be a reason for waiving off death sentences? Our constitution gives the president the power of pardon. Keeping a man under constant fear that tomorrow he might be hanged is dehumanizing. It gets reaffirmed once the trial court gives him a death sentence, right till the stage the Supreme Court conAnil Shakya firms the sentence, and the president rejects the petition. The death row convict undergoes much torture. Moreover, if it is subsequently found that the man hanged to death did not commit the crime, is there a way by which you can bring back the dead man to provide him justice? Judicial delays happen all the time. Why should these be justified, but not the executive delays in case of mercy petitions? Courts at times take judicial delays into account and reduce death into life imprisonment. The president should discharge his duty of saying “yes” or “no” within a reasonable time, which depends on the facts and circumstances of the case. But it can’t be years and years. Inordinate delay causes violation of the fundamental right of the convict. Maybe the home ministry keeps the file for a couple of years and then sends to the president. The president too keeps it, fearing he would be committing a great sin if he signs on the death sentence. The court is not interfering with the decision-making powers of the president; it is coming in because he has not discharged his duties within a reasonable time. But are the rights of the victims not being violated? Whose rights are paramount? The victim’s or culprit’s? It is fair enough for the victim’s family to expect that the man must be punished. It questions that once the judiciary has sentenced the accused to death, why should the government intervene. But, the affected people should know that convicts too have some constitutional rights, and under those rights, the court can say that the accused has actually suffered for so many years. How can crime be curbed if there is no deterrence of death penalty? Death penalty in most of the cases is not a deterrent to the offences committed. Sometimes, the offense is committed in the heat of the moment. And if a person has to kill, he or she will kill, irrespective of the deterrence, because the motives for such crimes are so strong. There’s also the philosophical aspect that God gave us life, and God alone can take back life.

June 30, 2014

Many of these convicts, who have been given a lease of life, can be dubbed as hardened criminals, even terrorists, who pose a grave danger to society. In fact, one can consider the SC decisions baffling, in the light of hijacks and kidnappings the world over to secure the release of dreaded terrorists. One can argue that if the purpose of justice is to ensure protection to the society, this stance of the apex court may be misplaced. Does the apex court have a clear-cut reasoning, rationale and legal philosophy behind its various orders?

he court has observed that as the upholder of justice, it cannot be swayed by arguments that the offences or the offenders were extraordinarily cruel. As the SC bench of the then Chief Justice P Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh said: “The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence.” There is no good reason to disqualify all TADA cases as a class from relief on account of delay in the execution of death sentence, the court said. This was in the case of writ petitions of 15 convicts in different cases, which included those punished under TADA. Further, the SC maintained that its decisions to commute death sentences were not in the nature of questioning its own prior judgments (which punished convicts with death sentences), or rejecting the president’s right to reject mercy petitions. However, the Court wanted the president to take decisions on them within a reasonable time limit. For example, in the Rajiv Gandhi assassination case, a bench headed by the then Chief Justice of India, Sathasivam, said: “It is definitely not a pleasure for this court to interfere with the powers of the president. We implore upon the government to advise the president so that mercy petitions can be disposed of at the earliest.” Possibly, the SC has a point. Its conclusion stems from a legal analysis of the country’s fundamental rights, which should be applicable to all citizens. Its starting point is that Article 21 of the constitution postulates that every human

being has an inherent right to life and mandates that no person shall be deprived of his life or personal liberty except according to the procedures established by law. As it said, the prolonged delay in the execution of a death sentence led to “the anguish of alternating hope and despair the agony of uncertainty” and has “a dehumanizing effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the constitution.” The court noted that in one instance, the president took 12 years to decide on a mercy petition. The Court observed: “Although, no timeframe can be set for the president for disposal of the mercy petition but we can certainly request the concerned ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused.” This delay, along with “supervening circumstances”, like insanity of a convict and dehumanizing isolation, can become the grounds for commutation of death sentences. Here, a convict becomes a “victim”, since his fundamental rights have been violated.

he delay happens in part because of the documentation process, which requires the cooperation of the state authorities and state governments. But it’s also due to political compulsions, and the concerns of the central home ministry about the larger implications of any hanging. Even past and current presidents were known to have shied away from taking the final decision on mercy petitions, and they preferred to keep applications in cold storage. There is some substance in the argument that courts need to take cognizance of the rights of the victims or their families, whose human rights were violated in the first place. But then, the apex court has a counter to it. In adopting a reformative approach to punishment, the SC said that the purpose of any punishment was “to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient.” To put it in perspective, in doing away with

Matter of life and death President has the power to grant pardons, and to suspend, remit or commute sentences in certain cases under Article 72 Governor of a state has the power to grant pardons, and to suspend, remit or commute sentences in certain cases under Article 161 There are 476 convicts on death row in India. States with the maximum number of prisoners on death row are from Uttar Pradesh (174), Karnataka (61), Maharashtra (50) and Bihar (37) Until 1980, the mercy petitions that were disposed off, and not left pending, were decided in a minimum of 15 days and maximum of 10-11 months From 1980 to 1988, the time taken for mercy petitions that were disposed off increased to an average of four years From 1989 to 1997, the average time taken for deciding the petitions was brought down to five months In cases, where mercy petitions were disposed off, the longest time taken by a president was 12 years

death sentences and commuting them, the country’s highest judicial forum has only followed the clauses of international conventions, which were signed by most countries. These include: Universal Declaration of Human Rights, 1948, and the United Nations Covenant on Civil and Political Rights, 1966. More importantly, India was a signatory to both; the resultant philosophy that emerged was that capital punishment should be ordered in the “rarest of the rare” cases. Therefore, in the last few years, the highest court of the land refused to award death penalties to convicts in high-profile murder cases, such as those of Graham Staines, Jessica Lal and Priyadarshini Mattoo on the ground that these did not fall within the category of the “rarest of rare” cases. In recent times, even the executive was not too enthusiastic about death penalties. Before demitting office in July 2012, President Pratibha Patil commuted the death sentence of 35 convicts to life imprisonment. With about 26 mercy petitions pending before President Pranab Mukherjee—some of them pending for over two decades—one can be reasonably sure that the apex court may commute many of them on the ground of delay. However, it is inevitable that the moral debate between the rights of the convicts and those of the victims will continue to reverberate in the legal corridors for years. IL

TRIAL AND ERROR? (From top) The death sentences of Yakub Memon, Sushil Sharma and Devinderpal Singh Bhullar were commuted by SC

—With inputs from Shailendra Singh INDIA LEGAL June 30, 2014

LEGAL RIGHTS/ section 377

Will Homosexuality Finally be Legal?

June 30, 2014

article 21 of the constitution deals with the right to live with dignity. don’t gays have the same privilege? Photos: Anil Shakya

PRIDE PARADE Many participated in the Delhi LGBT parade to firmly stand for their sexuality and repeal the 1860 law

HEN Satish (name changed) was accosted by a policeman as he and his boyfriend were walking along the beach, he knew what was coming next. They would be threatened with Section 377 of the Indian Penal Code (IPC) and made to look like common criminals. “So I did the next best thing to buy peace. I paid him `100,” says Satish. “But the unfairness of it consumes me time and again. We gays aren’t allowed a life of our own in India and are constantly harassed. Surely, one has the right to love whom one wants. While other countries have moved far ahead, India still lags behind in this aspect. Some things are best left private,” he stressed. And that is the reason why this 25-year-old is banking on a Supreme Court (SC) judgment, likely to be delivered soon, to decriminalize homosexuality. Though the SC in December 2013 had said that amending or repealing Section 377 was the responsibility of parliament and not the judiciary, many are hoping for the best. A curative petition is now pending in the SC, after it dismissed a review petition filed by Naz Foundation and several others. The chances of judgment being reversed in a curative petition are slim, as the same bench, which had passed the judgment, and dismissed the review petition, would be hearing it. The only difference is that the curative petition would be heard in an open court, with lawyers from both the sides getting the chance to present their case. If this is also dismissed in the Supreme Court, the only ray of hope left will be that the political class steps in and passes a progressive law in parliament, legitimizing gay sex. That, again may be a bleak possibility, considering that leaders of the ruling BJP had come out in support of Article 377, when it was in opposition. Home minister Rajnath Singh had told mediapersons back then that he supported Article 377 since homosexuality was an unnatural act and could not be supported. With the Congress, which had supported the gay cause, now in shambles, and regional parties not too vocal about it, there doesn’t seem to be any pressure on the polity to bring about a constitutional change. But there will be pressure from civil society.

DIRE NEED Repealing Section 377 will not only give gays and other discriminated sections such as the LGBT (lesbian, gay, bisexual, and transgender) community more acceptance in the society; it will give them more access to HIV/AIDS prevention efforts. Gay sex carries higher risk of exposure to HIV as compared to heterosexuals. But with appropriate education, use of condoms and advocacy of other safe sex practices, it can be prevented. But this is easier said than done. While the world has moved ahead, India is still clinging to Section 377, enacted by the British way back in 1860. It criminalizes ‘carnal intercourse against the order of nature’ and reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life… and shall also be liable to fine.” Section 377 imposed a blanket ban on all penile-non-vaginal sexual acts under the rubric of “unnatural offences”. It initially covered only anal sex, but later included oral sex and penile penetration of other artificial orifices. INDIA LEGAL June 30, 2014

LEGAL RIGHTS/ section 377

Section 377 has served a useful purpose in cases of child sexual assault and abuse. But by criminalizing private, consensual same-sex conduct, it has become a weapon for police abuse, whereby, people are detained, questioned and harassed into payment of hush money. This has led many gays to go underground and adopt a cloak of silence regarding sexual preferences.

How it came to curative petition 2001: Naz Foundation filed a PIL in the Delhi high court (HC), challenging Section 377 under Articles 21, 14, 15 and 19. 2004: The HC dismissed the petition due to lack of standing. 2005: Naz Foundation filed a special leave petition (SLP) in the Supreme Court (SC) against the high court decision. The SC asked the Delhi HC to decide the case on merits. 2006: National AIDS Control Organisation (NACO) submitted an

June 30, 2014

affidavit contending that Section 377 was impeding HIV prevention efforts. 2009: The HC passed a landmark judgment holding Section 377 violative of Articles 21, 14 and 15. 2009-10: 15 SLPs were filed in the SC by religious groups against HC decision. 11 December 2013: The SC struck down the HC verdict and held Section 377 constitutionally valid. 28 January 2014: Review petitions of the judgment filed by Naz Foundation and others were dismissed by the SC.

RIGHT TO PRIVACY In an effort to help them, Naz Foundation (India) Trust, a Delhi-based NGO working in the field of HIV prevention among homosexuals, filed a writ petition in the Delhi High Court (HC) in 2001. It challenged Section 377 under Articles 21, 14, 15 and 19 of the constitution, which deal with violation of right to privacy, dignity and health, equal protection of law and non-discrimination and freedom of expression respectively. It further said that psychiatry and psychology no longer treat homosexuality as a disease, but as just another expression of sexuality. It stressed: “No aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations figure prominently within an individual’s personality, they are an inalienable component of the right of life.” It was a historical moment, when, on July 2, 2009, the HC passed a landmark

judgment, holding Section 377 to be violative of Articles 21, 14 and 15 of the constitution, as it criminalized consensual sexual acts of adults in private. But the victory was shortlived, when the SC overruled the HC judgment. RELIGIOUS FURORE The SC judgment, as expected, got support from religious leaders and it is hardly likely that parliament will take a decision on a contentious issue, where religion is stoked. Samir (name changed), 29, an upper middle class gay in a metro, says: “No one wants to meddle with religion. Despite my education and good financial position, I cannot come out in the open against Section 377, which is draconian. It should definitely be done away with. I don’t think I will ever see gay marriages legalized in India like abroad and the community is given dignity.” But Samir’s plaintive plea is no match for the might of religious groups, who, across the spectrum, have been scathing in their criticism of the community. Baba Ramdev asked: “What is the contribution of homosexuals to the world, in the field of science, economics, etc? If our parents had been homosexuals, then we would not have been born. So it’s unnatural.” Vishva Hindu Parisad (VHP) vice-president Om Prakash Singhal said: “This is a right decision (of the SC), we welcome it. Homosexuality is against Indian culture, against nature and against science. We are regressing, going back to when we were almost like animals. The SC has protected our culture.” Rabbi Ezekiel Issac Malekar, honorary secretary of the Judah Hyam Synagogue, was quoted as saying: “In Judaism, our scriptures do not permit homosexuality.” Rev Paul Swarup of Redemption Church, Delhi, stated: “Spiritually, human sexual relations are identified as those shared by a man and a woman. The Supreme Court’s view is an endorsement of our scriptures.” Even Pope John Paul II launched a global campaign saying that “homosexual unions were immoral, unnatural and harmful.” However, life lives on hope. Many have stood up against the SC verdict, including

It’s legal here The Netherlands, 2000: Dutch parliament made history when it voted 3-to-1 to make same-sex marriage legal, also allowing the couple to adopt children Belgium, 2003: Parliament legalized gay marriage Canada, 2005: After a two-year court battle, the House of Commons voted to make gay marriage legal in the entire country, as opposed to nine out of 13 provinces and territories earlier South Africa, 2006: The Constitutional Court ruled that preventing gay marriage violated the country’s young constitution. The court-mandated law was passed easily the following year Iceland, 2010: All 49 members of parliament voted for gay marriages Argentina, 2010: The predominantly Catholic country became the first Latin American nation to legalize gay marriage by the narrow vote of 33 to 27 Brazil, 2013: Brazil’s National Council of Justice ruled 14-to-1 that notary publics couldn’t refuse to perform same-sex marriages. Civil unions gave gay couples access to government benefits, the ruling allowed partners to take each other’s surnames and adopt children more easily.

UNI

Bollywood personalities like Aamir Khan, Karan Johar, Farhan Akhtar and Amitabh Bachchan, economist Amartya Sen, author Vikram Seth and political leaders Sonia and Rahul Gandhi. Experts say the SC can, under Article 142 of constitution, pass any order which will benefit both parties. In this case, it can change the 1860 law and exercise Article 19 and 21 which guarantees right to life with dignity. Many will cheer for it if this decision is taken. It waits to be seen what the final outcome will be. IL INDIA LEGAL June 30, 2014

THE NATION/ foreign policy/ saarc

WILL MODI BE BIG BROTHER OR BENEVOLENT BENEFACTOR?

as a right-wing party takes over the reigns of government yet again, do india’s neighbors have a reason to worry? it doesn’t seem so By Seema Guha Photos: UNI

June 30, 2014

ANAGING the neighborhood is the hallmark of any nation which has latent ambitions of being a world power. And successive Indian governments have given top priority to ensuring smooth ties with them. Since Independence, every leader, as well as the Indian establishment, felt that with its ancient civilization, huge land mass and humongous population, India must sit at the high table and be one of the movers and shakers of the world. Even if Narendra Modi wishes to achieve this objective, the best way to start is to manage the country’s relations in the region. Considering that South Asia remains a trouble spot, India has not always been in a position to ensure a peaceful neighborhood. Former US President Bill Clinton had once described the border between nuclear-armed India and Pakistan as the “most dangerous”

place on earth. Indian leaders have repeatedly tried, though not always succeeded, in managing the region’s complex neighborhood. Maybe their approaches were wrong. NEIGHBORHOOD POLICY Prime Minister Modi is no exception and will concentrate initially on countries around India. His first official foreign visit will be to Bhutan, one of India’s closest allies. He, thereby, signalled the importance he places on the neighborhood. Even for his swearingin, SAARC leaders were invited. This showed an out-of-the-box thinking, considering many countries were not sure what to expect from a Modi government in Delhi. Subsequent meetings with SAARC leaders helped quell some of the misgivings and gave them an opportunity to know the new PM. Every government has stressed the importance of good relations with countries in South Asia, though the one that articulated it the best was former Prime Minister

MOMENTS OF SAARC SOLIDARITY (Below) Prime Minister Narendra Modi with the leaders of other South Asian countries at his swearing-in ceremony in New Delhi on May 26

INDIA LEGAL June 30, 2014

THE NATION/ foreign policy/ saarc

NUMBERS GIVE HIM FIRMER FOOTING (Above) Modi with Afghanistan President Hamid Karzai at his swearing-in; (Below) Sri Lankan President Mahinda Rajapaksa on the same occasion

connectivity by road, sea and air. Both Atal Bihari Vajpayee and Singh hoped to bring development to the North-East by opening it to the thriving markets of the ASEAN group. The idea of using Myanmar as a bridgehead to ASEAN was a great idea, but the progress was slow. Vajpayee didn’t get the time to follow up on the projects, while in Singh’s case, the UPA regime was not good at implementing any of its ideas.

Manmohan Singh. He had spoken of asymmetrical relations with smaller countries, wherein India insisted on reciprocity for every little concession it gave. This was much disliked by its smaller neighbors, who felt that despite being a large country with a billion people, India had a “small heart”. Manmohan Singh changed all this by opening India’s purse-strings for Bangladesh and Afghanistan, with a $1 billion credit line to Dhaka and a $2 billion aid to Kabul. Singh had right ideas for the neighborhood, and accelerated the process for better

June 30, 2014

PROACTIVE PM Modi, who is big on business and has been speaking at length of his development agenda, is likely to be much more interactive. “In India, major changes in foreign policy do not happen overnight. There will certainly not be any change in the neighborhood policy. Every government has maintained that they want good relations with neighbors. With Modi there will be change of style—he will be more proactive, will get things done faster,’’ says former foreign secretary Lalit Mansingh. During the UPA regime, the compulsions of coalition politics saw regional satraps dictating foreign policy. West Bengal Chief Minister Mamata Banerjee’s decision to oppose the Teesta water sharing agreement during Singh’s 2011 visit to Bangladesh was an embarrassment for him and the Sheikh Hasina government. Modi has sent out a strong message that national interest and not

regional politics would determine foreign policy. By inviting Sri Lankan President Mahinda Rajapaksa to his inauguration, despite protests from Dravidian parties in Tamil Nadu, he gave out the right signal. And it helps that the BJP-led NDA government has adequate numbers in parliament. Pending in the “in-tray” is the Land Boundary Agreement with Bangladesh, which has been signed but needs to be ratified by parliament. The treaty has been tabled in the Rajya Sabha and includes exchange of enclaves and territory on the border. Modi can easily get it passed with the support he enjoys in the lower house but may have to manage the upper house. If he does, it will be much appreciated in Bangladesh, where the Awami League government is constantly under attack by the opposition, Bangladesh Nationalist Party and the Jamaat for its pro-India tilt. Modi can perhaps also convince Mamata to agree to the Teesta water-sharing deal. Sheikh Hasina has done much to allay India’s security concerns. She has broken up the terror infrastructure in Bangladesh and ensured that Pakistan’s ISI cannot operate against India from her territory. The least India can do is to reciprocate her gesture. In Sri Lanka, Modi will again push for giving the Tamil minority a modicum of devolution, as spelt out in the 13th amendment. While doing so, India must also make sure that it does not turn down requests to build major infrastructure projects. India grumbles about China’s presence in the island, but the Hambantota Port project was handed over to China after India rejected it. Nepal is another country to which India has not paid much attention in recent years as it wants the political parties there to work out their problems. But with a new government, the time for keeping away is long over. Modi must activate the Nepal front. Ties with Pakistan have begun on a firm note. But the jehadi and anti-India forces will try to disrupt any move towards normal relations. The good news is that both Modi and Nawaz Sharif are keen on promoting business. Once Pakistan gives Most Favored Nation status to India (it is on the cards), trade is expected to pick up. If this happens and money starts flowing in, the stakeholders for peace will

grow. But nothing between India and Pakistan is easy, and there are wheels within wheels in this complex relationship. Afghanistan could well be the breaking point in ties. The previous government laid a firm foundation in Afghanistan and Modi has merely to work on it and extend it. The attack on the Indian embassy in Herat was carried out by Lashkar-e-Taiba, a group close to the ISI. This naturally brings back the old familiar strain in ties with Pakistan. Will this be another Lahore and Kargil? Whether Sharif can this time round get the better of the Pakistan army and fight these elements, remains to be seen. Also, unless the victims of 26/11 get a closure, matters will be hampered by ghosts of the past. BALANCING ACT Pakistan has to also accept that India will continue to assist Afghanistan and its interests in that country will grow. India was the first country to sign a strategic agreement with Afghanistan and will not be pushed out of that country simply because the Pakistan army believes in acquiring strategic depth there. The way to go will be to build ties with Pakistan, while being firm on India’s interests in Afghanistan. The Pakistani establishment believes that a BJP-led India is in a better position to make peace with Pakistan than a Congress government, which constantly looks over its shoulder at the BJP. In opposition, the BJP did not allow an inch to the Congress, but while in power, it is much more moderate. While there is hope that Modi can make a fresh start and shake things up in the foreign ministry, he will have to keep the fanatical fringe within the Sangh Parivar in check. “Beware of the right-wing fringes within the larger Sangh Parivar. If they are allowed to run amok on foreign policy issues, it will be disastrous,’’ warns analyst SD Muni. He believes that unless Modi reins in these ultra-right religious elements, relations with Pakistan will get worse. These elements also have their views on Nepal. They want Nepal, now a republic, to revert to monarchy and Hindu Kingdom. This is something the people of Nepal fought for and won and there can be no turning back of the clock. IL

“If the right-wing fringes within the Sangh Parivar are allowed to run amok on foreign policy issues, it will be disastrous.” SD MUNI, analyst

INDIA LEGAL June 30, 2014

THE NATION / foreign policy / china

THE BRAVE NEW FACE (Above) Law student Fathima Thahalia at a seminar in Calicut

CHINAâ&#x20AC;&#x2122;S POSTER BOY Modi speaking at a reception thrown by the Indian community in Shanghai in 2011

Indiaâ&#x20AC;&#x2122;s Dragon woos China prime minister narendra modi will have to balance the trade prospects with realpolitik concerns in the east and south china sea, as well as take a stand on the escalating china-japan tensions By Divya John 58

June 30, 2014

F one were to observe Narendra Modi’s overtures to the neighboring countries, things bode well for India. However, it is the big neighbor in the north, People’s Republic of China, which is of crucial importance for growth and peace. The signs are positive. It was China’s premier Li Keqiang who was the first foreign head of government to call upon Narendra Modi to congratulate him on his win. He conveyed a desire for “robust partnership” to build strategic and cooperative ties for peace and prosperity. And if that was not enough, Delhi rolled out the red carpet for the Chinese foreign minister Wang Yi during his recent visit. The meeting between Asia’s two biggest giants is crucial not only for strengthening bilateral ties, but also to ensure a stable, regional order. This is also the 60th anniversary of the “Five Principles of Peaceful Coexistence” or the Panchsheel Agreement, making 2014 an important year for Sino-Indian relations. The 21st century has been hailed as the Asian century, dominated by Asian geopolitics, economy and culture. Naturally, China and India will have an immense role to play here. Post-cold war, in the early 1990s, both Indian and Chinese economies were at the same level. But later, China’s economy surged forward. Today it is four times that of India’s, its influence spanning from Africa to Latin America, and from the Caribbean to Central Asia. BRAND CHINA IN GUJARAT But with Modi’s historic victory, this is likely to change, as a new era of Sino-Indian relations will set in. Modi set his sights on China even when he was the chief minister of Gujarat. He officially visited China thrice and was able to project “Brand Gujarat” successfully. He invited Chinese companies for partnerships and joint ventures and met mayors, who were chief executives of big city states like Beijing and Shanghai, and discussed investment opportunities for Gujarat with them. To boost economic and cultural ties, Modi expressed keenness to introduce Mandarin in Gujarat universities in 2011. Already, the language has been introduced in Gujarat University in Ahmedabad and MS University in Vadodara. Modi was also keen on developing port facilities.

“Modi would vigorously promote economic engagement with China in his first few years in office. Following that, both powers would scramble to protect their maritime interests in the South China Sea and Indian Ocean. They would, later on, compete in arenas of energy and maritime security.” —JAGANNATH PANDA, research fellow, Institute of Defense Studies and Analysis, Delhi

During his visits to China, Modi was hosted at the Great Hall of People, typically reserved for the heads of state or government. China sees Modi’s admiration for its own growth model as an opportunity for furthering investment in India. In 2011, Modi said in Beijing: “China and its people have a special place in my heart. I admire their hard working, disciplined and resilient nature and above all, their sense of history. Our cultural bonds are very strong and deep-rooted. Over the years, our relations have further strengthened. We are committed to making them still better, fruitful and productive.” No wonder Modi has been called India’s Deng Xiaoping or India’s Nixon. THE BAGGAGE OF HISTORY Despite the present bonhomie, China and India have a lot of history behind them, and not all of it is pleasant. Who can forget the 1962 Indo-China war? Prior to it, relations between the two countries were fairly warm, as both the countries, recently de-colonized, talked of Asian solidarity. However, The Dalai Lama’s crossover to India in 1959 and Nehru’s forward policy ultimately led to a devastating counterattack by China, which led to a humiliating defeat. After more than a month of fighting, China declared a unilateral ceasefire and withdrew, while keeping a firm grip on Aksai Chin. Boundary disputes continue to bedevil both countries, as they share a 4,057-kilometer border, one of the longest in the world. Disagreements and a lack of clarity on the Line of Actual Control and the McMahon Line continue to cause skirmishes. China refers to Arunachal Pradesh as “Southern Tibet” and lays claims to this territory. India, on its side, has beefed up its military in the Northeast. Water resources is another area of dispute, as China and India share 16 rivers. China is constructing a number of dams in the upper INDIA LEGAL June 30, 2014

THE NATION / foreign policy / china

UNI

CHINESE CHECKERS On Modi, Japan and Pakistan Chinese ambassador to India

Wei Wei wrote in The Hindu that there was hope for mutual cooperation between the two giants to bring peace, growth and stability in the region, and offered suggestions to strengthen Sino-Indian ties China Daily says that closer economic ties between India and China were high on Modi’s

MUTUAL ADMIRATION External Affairs Minister Sushma Swaraj greeting her counterpart, Wang Yi of China.

June 30, 2014

agenda. Gujarat is seen as “India’s Guangdong,” a state where China apportioned a major chunk of its $900-million investment in India during Modi’s term; Japan’s investment in Gujarat is expected to be $2 billion by 2015 The People’s Daily said China welcomed an improvement of ties between India and Pakistan as it would lead to regional peace,

reaches of the Brahmaputra river, but says it is of no concern to India. India, too, has set up hydropower stations in Arunachal. TRADE TRIGGER Nonetheless, it is trade ties which will take both the countries forward and they are concentrating on them. Sino-Indian trade reached $73.7 billion in 2013, as per the Department of Commerce, Government of India, with China emerging as India’s largest trading partner. However, India faces a growing trade deficit with China. Currently at a massive $31.42 billion, this is an increase of $2.5 billion as compared to 2012. India must push for more

exports in the IT sector and get hurdles in the Chinese pharmaceutical sector removed. Modi’s immediate concern is to seek Chinese investment in infrastructure projects and building manufacturing bases to export more to China. Chinese Premier Li Keqiang addressed this problem by saying: “The Chinese side is also willing to provide facilitation to more Indian products to access Chinese markets.” China is also facing competition from Japan, which has reportedly invested $15.3 billion in India. China had initially proposed to finance 30 percent of India’s planned infrastructure spending by developing railways, roads, telecom and power. Both countries seek to reach $100 billion in bilateral trade by 2015. Closer ties with China would also allow India to collaborate on projects that enhance border cooperation, regional and transcontinental connectivity such as the BangladeshChina-India-Myanmar corridor in the southern frontier, the new Maritime Silk Road in the southeastern frontier and the New Silk Road in the western frontier. SEA OF HOPE Modi also needs to come to terms with a rapidly changing global structure. If India aims to be an Asian power, it can’t ignore the ongoing disputes in the East and South China Sea (SCS). China has been caught in a bitter territorial spat with its neighbors over rights to explore oil and gas there. It has drawn the Nine Dash Line, a border which encompasses the entire SCS, and an Air Defense Identification Zone (ADIZ) in East China Sea, thereby antagonizing Vietnam, Japan and the Philippines. China recently deployed an oil rig between Parcels Island and the Vietnam coast, sparking off violent anti-China riots. Chinese ships have also been ramming Vietnamese ships in the SCS. Japan is also fighting a bitter territorial battle with China in the Senkaku and Diaoyu Islands in the East China Sea. The Philippines recently took China to the UN tribunal over the territorial scuffle; the tribunal ordered China to prove its claims. These countries will now seek a wider participation of India in regional matters and the country must use this opportunity to cultivate economic and security ties with them. However, strategic interests are tied up with economic ones and India is interested in the

SENSING OPPORTUNITIES Modi at the Yangshan seaport, China, in 2011

SCS for two reasons. One, the SCS is said to have about 11-billion barrels of oil and 190-trillion cubic feet of natural gas. India has signed agreements with Vietnam for exploring and exploiting oil in the Phu Kanh Basin of the SCS. China feels India is trying to counter Chinese behavior in the Indian Ocean by venturing into the SCS. India maintains that the area comes under the exclusive economic zone of Vietnam. Two, India maintains it will support free passage in international waters. The SCS is the world’s second busiest international sea lane, with important sea lines of communication. Indian interests are similar to the US in maintaining freedom of navigation in the SCS. Jagannath Panda, research fellow at the Institute of Defense Studies and Analysis, says: “Modi would vigorously promote economic engagement with China in his first few years in office. Following that, both powers would scramble to protect their maritime interests in the South China Sea and Indian Ocean. They would, later on, compete in arenas of energy and maritime security.” AXIS OF POWER Countries, such as Japan and the US are courting India to balance China’s growing influence. Hence, Modi’s visit to Japan in July and the US

in September will be closely watched by China. At the Shangri La Dialogue, which took place in Singapore from May 30 to June 1, Japanese PM Shinzo Abe spoke about preserving maritime law, strengthening regional institutions and cultivating ties with India. At the same conference, US Defense Secretary Chuck Hagel accused China of playing a “destabilizing” role in Asia by coercing its claims. An important topic of discussion in Modi’s meeting with President Barack Obama will be strengt-hening the US-Asia pivot by maintaining regional stability in the SCS and India’s entry into the Trans Pacific Partnership, a free trade agreement between nine countries in the Asia-Pacific region. Obama has been seen as weak on Russia and China, and hence, he would be looking to reaffirm American leadership in Asia and would need a strong ally such as India to counter China. He may set the base for a possible US-Japan-India trilateral relationship. China, on its part, will seek to enhance the China-Russia-India trilateral cooperation. India must maintain a steady balance between the US and China. The world presents a plethora of opportunities for India in a new era of globalization. And it is up to India and Narendra Modi to take advantage of them. IL

“China and its people have a special place in my heart. I admire their hard working, disciplined and resilient nature and above all, their sense of history.” —NARENDRA MODI in Beijing in 2011

INDIA LEGAL June 30, 2014

PROFILE/ carl lewis

STAR POWER: Carl Lewis at the TCS World 10K event in Bangalore in May

Setting the Pace 62

the athlete talks about india’s ability to emerge a sports powerhouse, his clashes with sprinter usain bolt, the doping issues in jamaica, and his own achievements By Gaurav Kalra June 30, 2014

HEN a smile settles on his face, it has a childlike joy to it. He is 52 and the last of his nine Olympic gold medals came in 1996. It is nearly 20 years since he walked into the racing sunset, but the aura hasn’t withered. The legendary athlete, America’s Carl Lewis, hasn’t lost any of his skills to race ahead. With the wind behind his back, he is willing to talk about any topic under the sun. On a rare visit to India as an event ambassador for the TCS World 10K Bangalore (the annual 10-kilometer road race held in the city) this year, the icon reminisced about India in 1989 and India today. In 1989, he had raced in New Delhi as the reigning Olympic 100-meter champion. “When I came here in 1989, there was no way 25,000 runners would have participated in a race,

such as this. Running is the most simplistic thing because everyone does it, and it doesn’t matter if you are fast or slow. Every kid ever born raced someone,” he says. But, of course, Lewis raced faster and jumped higher than everyone else. Over the course of his career, he was defined not merely by his jaw-dropping feats—10 Olympic medals, including nine gold, and 10 world championship medals including 8 gold—but by his astounding longevity. Between 1983 and 1996, the incredible track and field athlete won at least one gold medal at every World Championship and Olympic Games. “When I was at my last Olympics, I remember standing on the runway with two long jump attempts down and one more to go, I was probably in the 17th place. I was on the track thinking: ‘You know I have eight gold medals but if I flame out today, then everyone is going to say, oh my god he is too old, he should have quit, he shouldn’t have been here,’” he recalls. What followed was an unforgettable moment in sports history. The 35-year-old leapt 8.5 meters to clinch his fourth straight Olympic long jump gold in 1996 and became the third man in history, after Danish sailor Paul Elvstrom and American discus thrower Al Oerter, to win the same individual event four times. A year later, Lewis retired. In 1999, the International Olympic Committee named him “Sportsman of the Century”, he was elected “World Athlete of the Century” by the International Association of Athletics Federations, and Sports Illustrated magazine named him the “Olympian of the Century”. As Indian sports takes baby steps towards making a name in international athletics, Lewis believes the breakthrough moment isn’t far. “You have to believe. This is a country of over a billion people, there has to be a fast person, there has to be a jumper, there has be a great thrower, there has to be a great distance runner.” At the last two Olympics, India won nine medals, including a first individual gold, and Lewis believes that more success is guaranteed. “Whenever you have success, it breeds success. There is a little Indian child that watched the success in 2012 that will be great

Carl Lewis is known for his longevity on the track and field. He won at least one gold at every World Championship and Olympic Games between 1983 and 1996. in 2020. We don’t know who they are, but they are inspired by that performance,” he feels. May be the child was further inspired by Lewis’ visit. A constant lament in India is the lack of a sporting culture that inhibits talented kids. Lewis says one needs to lower the burden of expectations. His formula is simple. “Our objective should be that those young people, who get involved in sports, stay in it long enough to find out if they are any good at it. If not, they will at least be better that way. I think that we sometimes over-emphasize the future. The emphasis should always be on having fun.” Such an attitude will reflect in an enhancement of sporting ethics. In fact, the American runner has always been alert to the menace of doping in sports. While the world applauded the tiny Caribbean nation of Jamaica for producing an assembly line of world-class sprinters, Lewis raised red flags over the country’s anti-doping program, questioning its effectiveness. He was criticized the world over for his negative comments but, in recent months, he was proved correct. Prominent Jamaican athletes like the former 100-meter world record holder Asafa Powell and three-time Olympic medal winner Sherone Simpson were banned for doping offences. The phenomenal sprinter feels a sense of validation and adds that these incidents don’t just “take the sheen off Jamaica’s recent achievements but also make people not believe all the performances. When you have a country that did not do any random testing (for) six months leading INDIA LEGAL June 30, 2014

PROFILE/ carl lewis

Hall of fame Frederick Carlton Lewis, aka Carl Lewis, was born in 1961 in Birmingham, Alabama, United States. He won nine Olympic gold medals in the 1980s and 1990s.

TRACK ON FIRE: (Clockwise from left) Lewis won golds in long jump at the Seoul Olympics, 100 meters at the Los Angeles Olympics; and 4x100 meters at Barcelona

Qualified for the US Olympic team in 1980, but

couldn’t compete as his country didn’t participate at the Moscow Olympics Won gold medals in 100 meters, 200 meters and long jump at the 1984 Olympic games in Los Angeles. Was a member of the 4x100-meter relay gold-winning team, which he also anchored Continued with his amazing run at the 1988 Seoul Olympics by winning two gold medals (long jump and 100 meters), and a silver medal (200 meters). The gold, however, came in by default after Canadian sprinter Ben Johnson, who had set a world record, was disqualified for testing positive for anabolic steroids The incredible success story of Lewis went ahead at the 1992 Barcelona Olympics. The athlete won two gold medals, in the long jump and 4x100 meters' relay. The gold in long jump was his third in a row Lewis qualified for long jump, when he was already 35 years, for the Atlanta Olympics in 1996. Justified his inclusion by winning a gold medal for his country Hung up his boots in 1997

up to the last Olympics, and then had tremendous games, it does hurt the credibility of the entire anti-doping process.”

t was due to this that the athlete finds himself at loggerheads with his heir apparent, Usain Bolt. After clinching his sixth Olympic gold at London in 2012, Bolt said he had “lost all respect” for Lewis, who was merely “seeking attention” by questioning the validity of performances by Jamaican athletes. When reminded of that barb, Lewis chuckles: “Basically, I don’t really know him. He needs to back up now, go watch a Michael Jackson video about how he used to moonwalk, maybe you do need to respect me a little bit more now because what I said was true. He and anyone else can bash me until the end of time, and it doesn’t really matter.” The media has gleefully lapped up Lewis’ high-octane clash with Bolt over the last few years. Having won six Olympic and eight World Championship gold medals, Bolt unhesitatingly described himself as a “legend”. It’s a claim that amuses Lewis: “I don’t believe in talking like that because I never have. Can you imagine LeBron James (a professional basket ball player) saying, ‘I am a

June 30, 2014

legend?’ He wouldn’t do it, because he respects the sport and respects the other athletes. What I love about our sport is that legendary status is earned over time and it’s not something that is given.”

n unflinching supporter of the Democratic Party and President Barack Obama, Lewis is a keen observer of the churn in American politics and society. For example, the racist comment made by Donald Sterling, the owner of NBA (basketball) franchise Los Angeles Clippers, didn’t surprise Lewis. He attributes racism in America to the “fear of losing positions and power”. He argues the issue isn’t “just about race, but also about gender and orientation.” When you are Carl Lewis, time is always at a premium. Inevitably, his minders remind him that he has things to do and this conversation needs to end. So “King Carl”, as he came to be called, signs off with a promise to return to India. “Everyone talks about the heat here but I love it,” he chuckles in his endearing childlike way, and sprints ahead to yet another time, another place. IL

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GLOBAL TRENDS/ parenting/ the us

FIT TO FEND FOR SON, NOT DAUGHTER? Mindi retains the right to bring up her son, but her daughter has been taken away from her on account of mental illness

Illness that

SEPARATES a strict legal regime in america deprives parents with any form of mental instability, of the pleasure of bringing up their children By Seth Freed Wessler 66

June 30, 2014

N August 2009, Mindi, a 25-year-old struggling new parent, experienced what doctors later concluded was a psychotic episode. She had been staying in a cousin’s spare basement room in De Soto, Kansas, while trying to get on her feet after an unexpected pregnancy and an abusive relationship. She’d been depressed since her daughter was born and was becoming increasingly distrustful of her relatives. Isolated, broke and scared, one Saturday morning, she cracked. She woke to change her 5-month-old daughter’s diaper. When Mindi looked down, she believed the baby’s genitals had been torn. Mindi’s mind raced for an explanation. The one she came to? That her baby had been raped the night before; that someone—she did not know who—had put sedatives in the air vents.

Mindi called her pediatrician’s office. A receptionist told her to take her daughter to a children’s hospital in nearby in Kansas City, Missouri. Doctors found no evidence that the girl had been harmed or that any of what Mindi claimed had actually happened. After Mindi started arguing, medical staff sent her for a psychological evaluation and notified local child welfare authorities, according to court records. (As is typical in child welfare cases, the court documents do not include the full names of anybody in the family. Mindi has asked ProPublica to use only her first name, as did other parents in the story.) That night, authorities took emergency custody of Mindi’s daughter, who is referred to in court documents by her initials, QAH. A court-appointed doctor later concluded that Mindi had experienced postpartum psychosis. But Mindi rebounded after the episode. She began to attend therapy and to see a psychiatrist, who prescribed an antidepressant. She found a job as a shift manager at Kmart and moved into her own apartment. Each morning, she’d call the foster home where her daughter had been placed and she’d read QAH a book. In time, her psychiatrist, therapist and even a panel of judges concluded that Mindi should get her daughter back. “I found the help I needed to be healthy,” says Mindi, a wide-eyed woman with a round face and a chatty affect. “I was dealing with some mental battles at the time.” Dr Stanley Golan, the psychiatrist who treated Mindi, diagnosed her with a mix of post-traumatic stress disorder—likely, a therapist later said, related to abuse—depression and possibly a kind of “mild delusional disorder.” Still, the diagnoses, Golan said in court testimony, “do not interfere with her parenting and she is able to adequately care for QAH.” “You can have these diagnoses and be symptom-free,” he testified. Indeed, in September 2011, Mindi, who was in another relationship, gave birth again, to a boy named Jace, whom she’s now raising capably on her own. Citing Mindi’s pending case over QAH., Kansas authorities took Jace at birth and placed him in foster care. But

they soon returned him after finding no evidence that Mindi posed any risk to her son. As a family therapist testified, Mindi has provided a “nurturing, loving environment and had met all of [Jace’s] needs.”

et four years later, after a protracted series of court fights, Mindi does not have her daughter back. “I couldn’t see how they could keep one while I had the other,” said Mindi, sitting on the carpet in a living room with her son, surrounded by toy trains and a pile of books. “I don’t think I should have to fight for my own child to come home.” (Missouri and county child welfare officials declined to discuss the case.) The question in Mindi’s case is not about what authorities did when she plunged into a mental health crisis—nearly everyone involved in the case, including Mindi’s own attorneys, agrees it was likely appropriate to remove her baby that day. Instead, the issue is whether a mental health diagnosis itself, in the absence of any harm, should be enough to keep Mindi from ever getting her daughter back. Under a concept sometimes called “predictive neglect,” Missouri and about 30 other states allow courts to terminate a parent’s connection to a child if authorities conclude a mother or father has a mental illness that renders them incapable of safely raising the child. Officials usually must present evidence that the illness poses a threat. Most cases involve significant mental illness, not run-ofthe-mill depression or anxiety. Yet there need be no evidence of actual harm or neglect, just a conclusion that there is a risk of it. States typically do not track how many parental termination cases are related to mental illness, or how often parents have lost children based on a diagnosis. New York, one of the few states that does tally such cases, has about 200 parental terminations

Mindi has never harmed her daughter and is capably raising a son, but authorities took her daughter under a concept sometimes called predictive neglect. INDIA LEGAL June 30, 2014

GLOBAL TRENDS/ parenting / the us

SENSE OF LOSS (L-R) Mindi clings on to memories of her daughter; with her son

annually based on mental disability, a category that includes both mental illness and “mental retardation.” If there were a similar rate nationally, that would amount to several thousand cases per year. The cases are typically sealed, and there’s no way to know how many involve court overreach.

ut if it’s impossible to know how many parents lose children unnecessarily because of the stigma of mental illness, it’s clear that the process for deciding such cases is deeply flawed. Courts’ decisions rest on the recommendations of evaluators who often do not observe parents at home or examine their actual record of parenting. Instead, they rely on psychological tests and case notes. Incomplete evaluations are an “endemic problem,” said Joanne Nicholson, who directed a unit that conducted parenting assessments for Massachusetts child welfare agencies and is one the country’s leading researchers on parents with mental illness. “Parents are often evaluated without a real analysis of their supports, of the life they actually live,” said Nicholson, currently a psychiatry professor at Dartmouth College. As a result, “the diagnosis starts to speak louder than real life.” Children can also pay a price when courts overstep. Research shows that forcing

June 30, 2014

children in and out of different homes can leave lasting emotional scars. The logic of removing kids from parents with serious mental illness is straightforward. Studies have shown that serious mental illness correlates with higher rates of child neglect and abuse. Parents who can’t take care of themselves aren’t going to be in a position to take care of a child. And delusional thinking can lead to irrational, dangerous behavior. “You have to put protection first,” said Mary Kay O’Malley, who worked for years as a foster care caseworker, is now a professor at the University of Missouri Law School and has dealt with many cases like Mindi’s. When officials fail to intervene to protect children from mentally ill parents, the results can be tragic, irrevocable and front-page news. In one notorious 2008 case, a Long Island, New York, mother drowned her three children after county officials failed to respond to repeated warnings from relatives that she was dangerously unstable. But O’Malley says she’s seen agencies and courts unnecessarily cut off parents from their children. She says that’s what happened to Mindi. Six months after Mindi brought her daughter to the hospital, in February 2010, a parenting counselor reported that Mindi “is ready to be there for [QAH] emotionally,

mentally, and [she] can support QAH.” “The parent changed in this case,” said O’Malley, who consulted for Mindi’s attorneys for free after learning about the case. “But the court didn’t.”

he laws permitting termination of parental rights were mostly written in an era when serious mental illness was assumed to disqualify patients from participation in normal life, including parenting. Parents like Mindi may have been institutionalized. In many states, the mentally ill or intellectually disabled could be sterilized. The phrasing in the law has often changed—states have removed words like “feebleminded” and “depravity”—but the same concepts echo. In Mindi’s case, her daughter’s foster parents and the state of Missouri asked the judge in 2011 to terminate Mindi’s parental rights and for QAH to be adopted. The reason her rights should be terminated? Citing state law, lawyers for QAH’s foster family wrote that Mindi has “a mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed.” The petition rested largely on reports of the event three years earlier, when, after the delusion about her daughter’s rape, Mindi

brought her daughter to the hospital. In 2012, a Missouri trial court granted the petition to terminate Mindi’s parental rights, formally severing her connection to QAH. Mindi was “unable to knowingly provide [QAH] the necessary care, custody, and control” because, the judge wrote, she “has delusions that then become her reality.” Earlier in the case, Mindi had regained custody of QAH after eight months of separation only to lose it again after refusing to allow visits from QAH’s father, who Mindi says was abusive. Such lack of cooperation is not legally sufficient to permanently separate children from their parents, but the judge who terminated Mindi’s parental rights chalked up her claim of abuse to ongoing delusions—though no evidence was presented on this, one way or the other. QAH was placed back in foster care, this time with a new couple. The judge also said in his opinion that Mindi had made strange faces while sitting in court, an “affect,” the judge wrote, which “is quite unusual in termination of parental rights proceeding, but is consistent with mental health diagnosis given by [the courtappointed psychiatrist].” Mindi’s lawyers and other attorneys who represent parents like her say the judge’s reaction is common: Actions and statements that might pass without notice in people without a mental illness are pathologized in people with a diagnosis. “People who have those records at the back of their mind are looking for something to support their theory that she’s not stable,” said Sandra Wirtel, Mindi’s courtappointed attorney. Mindi and her lawyers appealed the 2012 ruling, and the following year a Missouri appellate court sided with her. The trial court decision, a three-judge panel ruled, “utterly fails to establish that [QAH] would be harmed by a continued relationship with Mother.” The appellate judges added that the judge’s observation of Mindi’s facial

The issue is whether a mental health diagnosis itself, in the absence of any harm, should be enough to keep Mindi from ever getting her daughter back. INDIA LEGAL June 30, 2014

GLOBAL TRENDS/ parenting / the us

expressions “does not constitute reliable and substantial evidence on the critical question of Mother’s present mental condition.” Mindi began preparing for QAH to return, setting up a bedroom with a pink bedspread. They had not seen each other for nearly a year, and to rebuild their relationship, Mindi and QAH were allowed to begin visits. Her daughter was bigger, more talkative, her dark blond hair now in long curls. At first, QAH was shy, feeling out her relationship with this woman she’d been separated from. But then she asked her mother to play a game Mindi had made up when QAH was younger. “She remembered that,” Mindi said. Mindi thought her daughter would be home for Christmas. But in late 2013, Mindi’s lawyer called her to tell her the case was not over. QAH’s foster parents, joined by the state, had appealed the case to the Missouri Supreme Court. Visits were halted again. The judges heard arguments in the case two months ago. When she’s with her son, Mindi can, for a moment, forget that for the last three years her life has been consumed by the fight for her daughter. Mindi enrolled in college again. She spends a lot of time at her Baptist church—Wednesday night Bible study and Sunday services. She now lives in the home of a family friend who is mostly away—Mindi’s father died when she was young and she’s

Courts’ decisions rest on the inputs of evaluators, who often do not observe parents at home. Instead, they rely on psychological tests and case notes. June 30, 2014

estranged from her mother. Late last year, she started to meet with the foster parents for monthly mediation sessions. QAH had lived with them for more than two years now. To her attorneys, Mindi’s case still seemed like a sure win. In 2007, the Missouri Supreme Court restored the parental rights of a young mother who’d been diagnosed with bipolar disorder. Judge Richard Teitelman sits on the Supreme Court of Missouri. Speaking broadly about such cases, he told ProPublica, “given the number of people in this world who are bipolar, or have some mental illness and who raise children very effectively, it would not seem to me that it should be a status thing—that anyone can say, if you’re mentally ill you can’t be a parent, you can’t have a child. That does not seem to comport with today’s reality.” In the early afternoon of March 25, Mindi received a phone message from the lawyer appointed to represent her in her parental rights case. The news was what she feared. “I just lost my daughter,” Mindi wrote in a message to ProPublica. The Missouri Supreme Court ruled, 6-to1, that the lower court should be granted broad discretion in making decisions about the facts of a parental termination case. Though the judges noted that the state still had an obligation to prove that a parent’s mental condition poses a risk to the child, they wrote that since the trial court had believed Mindi was a danger, the Supreme Court, which did not hear testimony from witnesses, was in no position to disagree. Judge Teitelman issued a short lone dissent. “The evidence in this case...fails to demonstrate clearly that the Mother is currently unable to adequately care for the child and that she will be unlikely to do so in the future,” he wrote, adding that the court’s decision had been “simply speculative.” In early May, QAH’s adoption went through. Mindi has no contact with her daughter. IL

Published courtesy ProPublica. This is the first part and the second part of the article will be published in the next issue of India Legal

GLOBAL TRENDS/ sharing economy

No room for free enterprise why ordinary entrepreneurs, giving out rooms or spare cars on rent, may face a rocky path fighting american regulators By David E Gumpert

AN the worldâ&#x20AC;&#x2122;s leading proponent of private enterprise, the United States, handle the latest version of independent business being coughed up by the sharing economy? Using the power of the Internet, the so-called sharing economy allows individuals to rent out rooms in their homes or apartments on a per-night basis, and to offer their cars as taxi services. Around the world, these most private enterprises are taking hold in a big way, giving ordinary individuals the opportunity to turn an under utilized bedroom or car into an income producer. Already, Airbnb, the roomrental service, and Uber, the car rental service, are each being valued at an astounding $10 billion by private investors. But while the trend is catching on in

June 30, 2014

much of the worldâ&#x20AC;&#x201D;with just a few notable exceptions, like Amsterdam, which is challenging Airbnbâ&#x20AC;&#x201D;the US appears to be having more difficulty than any other country. Established regulated businesses like hotels and taxi services are pressurizing regulators to go after ordinary-people-turned-entrepreneurs. In a number of cities, the battle between private and regulated enterprise is on, with the outcome far from certain. New York City is challenging the legality of the rooming services, the largest of which is Airbnb. The city is seeking detailed information on people who are renting out their rooms, in an effort to find violators of a recent city law that prohibits the renting of rooms for less than 30 days at a time. Another big city, Miami, has banned the taxi services, led by Uber. Battles on both fronts are shaping up in other cities. If another similar battle that has gone on over the previous eight years is any indication, these new private rooming and auto services are in for a long and tough legal grind in North America. That other similar battle has been over the private distribution of food, outside the public network of licensed supermarkets and

Anthony Lawrence

box stores that control most food sales. Small American farms around the US have been fighting an ever-more-intense battle with the state and federal regulators over their right to distribute food privately from farms, directly to consumers, and outside the purview of regulators.

he battle started over the sale of raw milk, but has extended to selling other foods, like meat, eggs, and fermented products. Regulators have filed legal actions to halt these sales, alleging violation not only of dairy laws, but retail and food handling laws in general. They want farmers to install expensive facilities, like new buildings with bathrooms, apart from farmhouses, to qualify for licenses to meet the requirements for serving the general public. Just as taxis and hotels have pushed for regulation of the private transport and rooming businesses, so has it been in the food arena. Large corporate food producers want small farms to meet the same regulations the corporations must meet. A number of American cases have wended their way through the courts, with mixed results. For example, in Minnesota, prosecutors twice charged farmer Alvin Schlangen with criminal misdemeanors for selling a variety of foods directly to members of a private food club he organized. In a 2012 jury trial, he was acquitted of all charges. But in a second trial last year, in a different locale, he was convicted of violating retail and dairy laws, though the judge let him go with just a small fine. In the state of Wisconsin, state prosecutors last year put farmer Vernon Hershberger

What’s otherwise a wise use of a spare room or car to generate extra income for a family, is turning out to be a thorn in the side of big enterprises and regulators in the US. on trial for similar criminal charges as Schlangen. A jury acquitted him of all the licensing charges—indeed, a few of the dozen jurors were so impressed with his farming practices that after the trial they became members of the food club he had organized. In another case, the state of Maine filed a suit against a farmer, Dan Brown, who runs a two-cow farm, for failure to have a food seller’s license or a dairy permit. One of his arguments was that he lives in a town that passed an ordinance in 2011 that allows small farms to sell food directly to consumers, without having to obey state licensing regulations. Last year, a state judge ruled against Brown, saying he needed to have the licenses. But earlier this year, the Maine Supreme Court agreed to review the case. In a hearing in May, six justices closely questioned lawyers on both sides of the case, suggesting possible disagreements among the justices about the case. A ruling is due in a few months. As the food cases suggest, there could be a fairly rocky road ahead for the auto and room rental enterprises. The precedent set in the US could go a long way toward determining what happens in other countries. After all, if the world center of free enterprise can’t tolerate this new form of free enterprise, other countries may take a closer look than they have been inclined to do thus far. IL INDIA LEGAL June 30, 2014

IS THAT LEGAL?

Nature’s fury A number of cars were damaged in the recent dust storm in the capital. Can the owners claim insurance for damage in such a case? The owners can claim insurance for damage in such a case, if it satisfies the terms and conditions specified in the policy document. In case of a natural calamity, the first step for claimants is to inform the insurance company about the damage and losses incurred. In the next step, one can submit a claim in writing, giving details of damages and other insurances on the same property, if any. The claim must be in line with the guidelines specified in the insurance policy document entered into by both the parties for processing and disbursement of claim amount. In the Divisional Manager, United India Insurance Co. Ltd. and Anr vs Samir Chandra Chaudhary (2005) case, a car that was insured by the petitioner company was damaged due to the falling of a eucalyptus tree on it. The terms of insurance stated that any accident that arises due to flood, typhoon, hurricane, storm, inundation, cyclone, hailstorm, frost would not be covered by the insurance and hence no claim would lie. The claims made by the owner of the car were for the damages due to repairing and for the loss of hiring charges. On an appraisal of evidence it was found that the claim of the insurance company that the falling of the tree was due to storm was incorrect, substantiated by the meteorological department’s letter confirming that there was no storm.

Lalit Khitoliya

Armyman’s liability An army vehicle, while it's transporting soldiers for training, hits a car. The occupant of the car dies. In this case, will the driver of the army vehicle be charged in his individual capacity or as an army driver, and will the army take up responsibility? In this case, the driver of the army vehicle will be charged in his individual capacity and not as an army driver. The trial will be conducted as an ordinary trial before the Motor Accident Claims Tribunal (MACT) because in the present case the deceased person is a civilian. Further, the responsibility for paying the compensation to the dead person’s family, if any, will be borne by the army and the driver because the driver was working in his official capacity. In October 2013, the police arrested Saurab Chanje, a driver employed with the Indian army, who rammed an army vehicle into an Alto car in Old Panchkula, resulting in the death of two youth from Shimla. Chanje was arrested after police booked him for causing the death of a person due to rash and negligent driving. He was handed over to the police by the army.

Green dreams

Amitava Sen

June 30, 2014

A builder advertises his project in newspapers showing a lot of greenery within and around the compound. But as occupants move in, they find to their horror that more building blocks are coming up. Can they take the builder to court, and what are the precedents of such grievances being addressed? While builders insert various clauses in agreements to ensure that clients can’t take them to court in case of violation, we see courts now coming up in support of consumers. A case in point is the Allahabad High Court judgment on the Supertech Towers, Noida—the court had ordered demolition, although the apex court later stayed it. The Central Consumer Protection Council has also safeguarded consumers’ interest.

They share the onus Tour companies organizing adventure trips ask clients to fill forms that they won't be liable in case of any accident. For that matter, schools too ask parents to sign a form to the same effect, when they are taking out students for an outing. Does that absolve tour companies, or schools, of all responsibility? What are the legal provisions that an aggrieved party can resort to, if something happens during these trips? The aggrieved person has no legal remedy if something happens to him after signing the said forms. However, if an accident is caused due to negligence on the part of tour company or school authorities, in that instance the aggrieved party can sue the tour company or school and claim damages. In MS Grewal & Anr Vs Deep Chand Sood & Ors (2001) case, 14 school students of classes IV to VI of Dalhousie Public School, Pathankot, had drowned while on a picnic on the bank of river Beas due to the negligence of the school authorities in May 1995. The court ordered the school to pay a compensation of `5 lakh to the parents of each deceased child.

S L BU OO SCH

Amitava Sen

Whose road is it anyway? Skirmishes over parking slots in residential areas are quite common in cities. If a man regularly parks his car on the street right in front of his house, can he claim it to be his legal right and debar others from parking at the same place? If the parking space on the street of the residential area has been purchased from municipal authority then the man will have legal right and can debar others from parking at the same place. On the other hand if the said space on road is not purchased then the same comes under the purview of municipal authorities and the man will have no legal right. Lalit Khitoliya

Conflicting claims A widower gets his only son married, and after a couple of years, marries himself. The son walks out of the house in resentment. The father decides to bequeath the property to his wife. Can the son stake a legal claim to a share in his father's property? The son can legally claim a share in his father's property if the property of his father is an ancestral property. On the other hand if his fatherâ&#x20AC;&#x2122;s property is self-acquired property, he cannot claim any share and the father can bequeath his property in favor of his second wife.

Amitava Sen

INDIA LEGAL June 30, 2014

CONSUMER WATCH

News briefs on how buyers can enforce their rights and seek remedial measures Boarding nightmare VIP status provides no immunity against accidents. Senior BJP leader and the then Bihar deputy chief minister Sushil Kumar Modi was injured in a bizarre incident at the domestic airport in Delhi in December 2007. Modi had checked in for a JetLite flight to Ahmedabad and had boarded the ferry bus to board the craft. The bus came perilously close to an Air Deccan aircraft and the driver applied the brakes to

avert collision. Modi fell and hit a pole inside the bus. He suffered a spinal injury and had to be hospitalized. He filed a case against the airline with the consumer disputes redressal forum, New Delhi, alleging that the bus driver was talking on the phone, oblivious to the presence of the other aircraft. The forum held JetLite guilty of deficiency and awarded Modi compensation of `1 lakh, besides `50,000 as litigation expenses.

Illustrations: Amitava Sen

Direct detention William S Pinckney, managing director and chief executive officer of Amwayâ&#x20AC;&#x2122;s Indian unit was arrested in Kurnool, Andhra Pradesh on May 26. He faces charges under section 420 of IPC (cheating) and various sections of Prize Chits and Money Circulation Schemes (Banning) Act 1978. Michigan-based Amway is an American direct seller of FMCG products in the health, nutrition, beauty and home care markets. Amway uses the combined direct selling and multi-level marketing models, whereby it gets people to either join the business as members and sell Amway products directly or sponsor (recruit) others to do the same. Pinckney was earlier arrested in 2013 in Kerala after a case was filed against the company for alleged money circulation practices. But the company says that it is a victim of the lack of a legal framework in India for the direct selling sector and that Pinckney has been booked under a 1978 law, meant to regulate financial schemes. It has been seeking an amendment to the law to ensure that money circulation schemes are not confused with direct selling.

June 30, 2014

Lesson in humanity Often, claims are rejected by insurers on the ground of preexisting diseases. But a district forum has observed that concealment of facts cannot be a valid reason for denying claims unless a patient has undergone treatment and hospitalization days before taking the policy. Kabiru Dhamani had procured a medical insurance policy from New India Assurance in June 2004. He was hospitalized and treated for cardiac-related ailments at a Nagpur hospital in 2006 and in 2007, and subsequently died. The family filed an insurance claim but the insurance company said that the claim was not admissible as the policyholder had concealed his pre-existing ailments before procuring the policy. Aggrieved, the family filed a complaint before the forum, which took note of Kabiruâ&#x20AC;&#x2122;s familyâ&#x20AC;&#x2122;s assertion that the insurance company was aware that he was a heart patient. It directed the company to pay the insurance amount of `2.3 lakh and compensation of `1 lakh to the family of the deceased.

Uncalled-for service

Headless forum

Telecom operators can no more activate value added services (VAS) on mobile phones without consumers’ consent. The New Delhi consumer disputes redressal forum has directed the Telecom Regulatory Authority of India (TRAI) to change its rules to curb exploitation of consumers who are charged for VAS without asking for it. The consumer forum’s directions came on the complaint of a Dwarka-resident, who alleged that Idea Cellular Limited activated voice chat on his mobile number without taking his consent and also charged him for it. He also mentioned that despite his request for deactivation of that service, the company continued to charge him. The forum observed that the case highlighted a “general experience faced by various users of telecom services”, and directed Idea to pay the complainant `50,000 as compensation and deposit `10 lakh as punitive damages to the Prime Minister Fund for ignoring the “interest of consumers and the existence of consumer court for no good reasons”. The forum pulled up TRAI for amending its earlier rules wherein the service provider had to obtain a prior explicit request or consent for subscription to such similar services before activating them.

When the malaise is known, why is the remedy so far behind? The functioning of consumer forums across the country is severely hampered by manpower shortages leading to long wait on the part of consumers for the resolution of their grievances. The same is the case with Madurai District Consumer Disputes Redressal Forum (DCDRF) where there has been no permanent chairman for three years. The forum is headed by only an interim president. As his tenure too will end soon, consumer activists are clamoring for appointing a new full-term president. They allege that complaints at the forum are heard only three days in a week and that too mostly during morning session. More than a 1,000 grievance applications are now pending with DCDRF. As of now, the forum has been able to decide cases filed between 2004 and 2005.

Bridging the gap Help for harried consumers is on the cards in West Bengal. The state government has decided to set up ten consumer assistance bureaus in various places to mitigate consumer woes. The role of these bureaus will be to take complaints from consumers, and then move the court for them. Beginning at the Kolkata-based office of the assistant director, consumer protection department, each district in the state will have one such bureau to look after consumer grievances. The consumer affairs department has already started approaching several NGOs to work in tandem with the state government in bringing succor to the aggrieved consumers. The department will hold meetings with the NGOs once every three months to take stock

COURT

of the functioning of consumer bureaus. The government will provide NGOs with basic infrastructure facilities including an office room to receive complaints from the aggrieved consumers and do the necessary follow-up. It seems to be a grassroots approach to the consumer empowerment! INDIA LEGAL June 30, 2014

ART & ENTERTAINMENT/ films/citylights

Sweating

BLOOD

June 30 2014

this mahesh bhatt flick unravels the rude shock that poor migrants face when they locate to the “city of their dreams”. urban life couldn’t be more sleazy By Ramesh Menon

OVERTY can be grinding and agonizing. As aspirations go through the roof, millions in changing India want to rise above it, risking all they have for a better life not just for themselves, but also for their dear ones. We see them struggling every day in urban India. Toiling endlessly to see a new dawn. Mahesh and brother Mukesh Bhatt have courageously produced a film that portrays reality without looking backwards at the boxoffice. In an interview, Mahesh said he loves creative destruction and now wants to dabble with meaningful cinema. CityLights’ rawness eats into you much after you finish watching the film. It reminds you of yesteryear when Mahesh produced films like Arth, Zakhm and Saaransh. Director Hansal Mehta sets out to narrate a heart wrenching story of Deepak Singh, a villager in Rajasthan, played realistically by Rajkumar Rao. After Love Sex and Dhoka, Talash: The Answer lies within, Shahid, Kai Po Che! and Queen. Rao has matured into a fine actor. Saddled with debts and a collapsing minor cloth shop business, Singh (movie hero) persuades Rakhi, his hesitant wife, played superbly by Patralekha, to locate to Mumbai. He cajoles her saying that it is a city where no one ever dies of hunger. The city lights dazzle and so does the sea, but their dreams come crashing down as soon as they are entrapped by cunning manipulators in the big city. Their little doting daughter does not complain even once though she clings to the mother for a few moments before being deposited in a crammed one room crèche. At every step, life cheats them; they are jobless and homeless and finally are given two weeks to stay in a building under construction. Cities can be so dehumanizing! A shy, conservative Rakhi fights her tears to force herself to dance at a bar with lecherous men stripping her with their eyes, while Deepak works as a driver. Both their jobs have ironies and tragedies, typical of a city like Mumbai, where everyone will have a story on how life cheated them, or taught

There are interesting directorial touches. For example, Deepak tells Rakhi he would take care of everything; the next second, he falls into her protective arms. them a great lesson. They navigate numerous contradictions, hopelessly wishing for a miracle that will transform their lives. It rarely does as poverty is such a leech. There are some interesting directorial touches: Deepak tells Rakhi that he would take care of everything and the next second, he falls into her protective arms. He needs her so much as it is a lonely battle. The scenes with the daughter are extremely touching and intensely real. Manav Kaul, who plays Vishnu, a security officer who works with Deepak, puts out a flawless performance, gently taking Deepak to see the crudeness and indifference of the city and how he one day plans to get out of the demeaning muck. Life has its surprises and Rakhi gets one too, but it is going to be one long painful journey ahead, though life may have materialistically changed for the better. CityLights is a remake of Filipino film, Metro Manila. The film’s tagline asks: Will love survive in the heart of darkness? If you know the kind of films that Mahesh Bhatt produced in his best years, you would have the answer. IL

Rating: *** out of ***** CITYLIGHTS DIRECTION: Hansal Mehta ACTORS: Raj Kumar Rao, Patralekha, Manav Kaul INDIA LEGAL June 30, 2014

B-62, Sector-63, Noida 201307 (U.P) +91 9717131655 viakinteriors@gmail.com www.viak.in.

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

1. Mark the right one and you could be invited to Spelling Bee. A: Aficianado B: Aficionado C: Aficianodo D: Afficionado

A: with B: on C: for D: over

2. One of the following plural forms is wrong: A: Mothers-in-law B: Men-of-wars C: Knights Templar D: Lieutenant generals 3. That which cannot be believed. A: Incredulous B: Unreliable C: Untrue D: Incredible

9. Feline is for cats. Canine is for dogs. ....... is for cattle. A: Alvine B: Corvine C: Bovine D: Lupine

16. A smaller word for “audacious”. A: Big B: Neat C: Bold D: Cute

4. Robin keeps reading books. He is a ......... . A: book-keeper B: book-lover C: book-worm D: scholar

10. A B-girl is a ........ . A: prostitute B: big girl C: bar girl D: beautiful girl

17. A woman’s small handbag. A: Reticule B: Miniscule C: Purselet D: Fingerela

11. “In the altogether” means ......... . A: happy B: everyone C: total D: naked

18. What is a “galley”? A. Street B. Kid C. Kitchen of a ship D. Gallbladder

12. What does internet slang “cul” mean? A: call you later B: call us later C: see you later D: come you all

19. One of the following is NOT a synonym of “politician”. A: Wheeler-dealer B: Flesh-presser C: Baby-kisser D: Four-striper

13. What’s a plastic human figure in the window of a clothing store? A: Mannequin B: Maniquin C: Manikin

20. What’s a “tour de force”? A: Forceful show B: Tortuous tour C: Must tour D: Great feat

6. Many are confused about this one. Are you? A: Pronunciation B: Pronouncation C: Pronounciation D: Prounonciation 7. He has nobody to fall back ............. .

SCORES

15. Everyone has a civil duty not to harm another person. A: Murphy’s law B: Parkinson’s law C: Law of tort D: Law of averages

ANSWERS 8. Between the devil and the deep sea 9. Bovine 10.prostitute 11. naked 12. see you later 13. Mannequin

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

Humankind Law of tort Bold Reticule Kitchen of a ship Four-striper Great feat

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!

14. A misanthropist hates ......... . A: women B: god C: humankind D: mountains

8. Which of the following is the correct expression? A: Between the devil and the deep sea B: Between the deep sea and the devil C: Between the devils and the deep seas D: Between the devil and the deep seas

5. Gita just replied: NOYB. What did she mean? A: Never ogle your bride B: Never offer your bike C: Never on your bike D: None of your business

Aruna

D: Manniquin

1. Aficionado 2. Men-of-wars 3. Incredible 4. book-worm 5. None of Your Business 6. Pronunciation 7. on

WORDLY

textdoctor2@gmail.com INDIA LEGAL June 30, 2014

PEOPLE / combating heat Photos:UNI

SWIFT DRIFT A boy paddles his boat along the weed-covered Anchar Lake in Srinagar where is more pleasant at 29 degrees centigrade.

THIRSTY SPELL A villager takes his cow across parched land of a dried pond searching for water on the outskirts of Bhubaneswar.

REVIVING VEGGIES A vendor splashes water on his vegetables to keep it fresh as the sun burns next to a railway track in Dhaka. SALT WALK A salt worker in Chennai carries salt before loading it onto a supply truck at a salt pan. Chennai is one of the hottest cities in south India.

COOLING SPLASH As the heat scorches in Agra, a visitor tries to get some respite.

WINDOW SEAT A man reads a newspaper as he sits on the window of a temporary shelter for homeless people as mercury crosses 46 degrees in New Delhi.

MELTING HEAT A farmer tried to keep himself cool with an ice-cream as he waits to dispose his wheat crop at a wholesale grain market in Chandigarh.

June 30, 2014