India legal may 15, 2014 by India Legal

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CRICKET CZARS: How two men, Srinivasan and Modi, sullied the gentleman’s game

NDIA EGAL I L

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May 15, 2014

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STORIES THAT COUNT

E L E C T I O N S

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FACTORS

Is Model Modi for real? l Do hate speeches count? l What are the polls missing? Will the President play a role? l

ALSO DADDY DEPRIVED

Do divorced fathers have rights? 56

BULLY BRANDS

Food giants hogging markets 60

KINGFISHER’S MALLYA

The Badshah of Bad Times 36

LEAD/ the nation/letter from the editor/elections 2014/gujarat model

Of Spices, Bhangra and Banking Inderjit Badhwar

May 15, 2014

ven as all of India swirls dizzily in the eddy of Elections 2014, voters try to grasp at themes and slogans and catchphrases and buzzwords that go floating by, in order to try and make some coherent judgment about their own choice of party and candidate. The ones easiest to seize are caste, community, linguistic and chauvinistic appeals. These are the tried and tested honey pots of prejudice that have attracted swarms of voters during the last two decades. But the most perplexing one of the current political scenario is the exhortation to vote for Narendra Modi for his Gujarat Model of economic progress. It has caught the imagination of foreign investors (as the accompanying story by Ramesh Menon shows), as well as the mind’s eye of Indian business barons like the Tatas, and made the BJP prime ministerial candidate the darling of trade and commerce groupings like FICCI and ASSOCHAM. More than that, it has bowled over ordinary people in small towns and rural India. They bandy the phrase about as if they had learned it in their high school classrooms. Question them closely and you will find equal amounts of fantasy and reality in their perceptions and beliefs. Some have actually been to Gujarat as seasonal or migrant laborers and traders in Surat, and Kutch and Ahmedabad, and testify to better working conditions, sanitation, women’s safety, relative lack of crime, better power generation, and … yes … a relatively riot-free atmosphere, as compared to the blacked-out, grime-besotten, sewage-choked, and mafia-ruled alleys and lanes of Western UP’s mufassil towns and villages. This, often, is reality, even though many other parts of India to which they have never travelled, might provide a strikingly similar contrast. The fantasy artists are usually the better educated, well-heeled, pro-Modi, pro-BJP diehards, or the recently-converted Modi-ratti, who ballyhoo the “Gujarat Model” as someone would Adam Smith’s The Wealth of Nations, Myrdal’s Asian Drama: An Inquiry into the Poverty of Nations, Kaldor’s Model of

Economic Growth, or Hicks’ Capital Formation in Underdeveloped Countries. It is, of course, nothing of the sort, being no more than a yarn woven from spin doctor’s imagination. But these yarn-makers must take a bow. They have given voice and face to what are indubitably solid achievements in Gujarat. And they have injected India’s political scenario with a healthy dose of muchneeded debate on the Wealth of Indian States and how it should be created in the future. Of course, some of the progress attributed to the Modi Model is hype, as the Arvind Kejriwal road show audit demonstrated through statistics and interviews. Yet much of it remains demonstrably admirable and worthy of emulation. And Modi is well within his rights to go to Uttar Pradesh and challenge Mulayam Singh Yadav to light even a single candle to the progress in basic infrastructure in Gujarat. While allowing Modi the liberty to claim credit for the Gujarat Model during the election year, we should remember that it should also be the other way around: Gujarat should claim credit for creating a Modi. For the model is not the Modi Model but rather the Gujarati Model. I cannot say this better than did Aakar Patel in the Mint, The Wall Street Journal: Do the Patels of America, who run their empire of motels, need Modi’s genius? Do the Memons of South Africa? The Gujaratis of East Africa, who dominate the economies of Kenya and Tanzania? The Palanpuri Jains, who compete with Hasidic Jews in controlling the diamond bourse of Israel and have made Brussels and Antwerp Gujarati outposts, do they need the Gujarat Model? Patel adds: “What about Azim Premji in Bangalore? Does he need Modi? Did the Tatas? Mumbai’s stock market is preponderantly Gujarati, and has been since the 19th century. The best shops in the spice markets of Kochi have boards saying “GUJARATI OWNER”, because that is a byword for competence, and a reputation acquired over centuries, not since 2001. Dhirubhai Ambani did not need Modi to make his

fortune. The only Gujarati I can think of, who has made his billions in the reign of Modi is Gautam Adani, in whose plane Modi is cutting across the country delivering sermons. Meeow, meow! But point well taken. What I do not accept, however, is Patel’s next thought, that the Gujarat Model cannot be replicated in West Bengal, Odisha or Bihar, “unless enormous numbers of Gujaratis are produced and sent forth to colonize these parts, armed with their business chops, their vegetarianism and their hypocritical abstinence from alcohol (a most unappealing thought) to acculturate the natives. “And it is embarrassing for many Gujaratis—I am one—to be told that all of the success of their great state is attendant on the sublime genius of one man. Now I have always liked the rogue who grabs what he can. Some cultures are always in need of saving. Modi can hardly be faulted for his behavior in claiming to be a self-referential and angry prophet of the Hebrew kind. I have a problem with the gullibility of those who fall for this, and who thrust their insistence upon others.”

enon’s accompanying story goes into several details on the facts and figures regarding Gujarat’s economy and performance. But it seems to me that the natural Gujarati entrepreneurial energy and efficiency was better poised to harness the energies that broke loose after the Indian economy opened up in 1991. This does not, however, mean that other linguistic and ethnic groups and states in India were minus skills and talent. The combination of all is what has contributed to make this nation stand taller than it did in 1947. India is blessed with an embarrassing wealth of models. Punjabi Model: robust agriculture, setting up shop in Congo jungles, bhangra-rock; Bihari Model: journalist production, IAS officers, plumbers and electricians; Malayali Model: female literacy, adult education; Himachali Model: rural electrification, hill roads, horticulture, hydro-power; Haryana: urbanization, tourist networks; Tamil Nadu: automobiles, heavy engineering, films; Karnataka and Andhra Pradesh: IT, ITES; West Bengal: ideas, spirituality, banking, and Oh! Calcutta... these are the first that come to mind. Every state possesses a genius. This is not to suggest that Modi is doing something immoral or wicked in claiming that the Gujarat Model outshines that of all other Indian states. Rather, this is to state that there are other models too. And that if there is a superior Gujarat Model then it should be subjected to

careful and exacting scrutiny before it is to be taken as the only model for prosperity and progress with the Modi tag attached to it. Just before India held its first general elections in November-December 1951, the great economist and social scientist Asoka Mehta asked how and for whom should India’s 18 crore electorate vote? It is here that political parties play a role, he said. They are the brokers of ideas and the sanctions behind policies. Even then, there were regional and sectional parties. But Mehta said that though they played a significant role, they cannot effect change or shape fundamental policies facing the nation as a whole and that the electorate would do better in expressing itself through major national parties for the welfare of the people. He then categorized the major parties. Congress had turned from a movement for freedom to a party of “development” but was essentially conservative in nature, and cautious about changes in finance, agriculture, industry and the nature of government. The Hindu Mahasabha was essentially a retrograde party, hardly interested in social or economic problems of the people and “bases its policies on religious impulses and hopes that the solidarity so generated may be a substitute for social strains and economic hardships of our times.” The Socialists believe that “the difficulties that confront our people today provide an opportunity for ushering in fundamental changes through such measures and distribution of land to the tiller, abolition of privilege, and a surge forward to economic and social spheres.” The Communists, he said, “lack faith in the Indian people and believe their problems can only be solved through the intervention of Soviet authorities. The Communists do not believe in democracy and do not hesitate to destroy democracy when such an action suits them.” This was one of India’s greatest thinkers in 1951. See for yourself, what has changed, what has not changed. Empirically, there may be no Modi Model or Gujarat Model. But symbolically it is significant that the development debate has been brought to centrestage by a man whose intellectual and spiritual cradle has been the Hindu Mahasabha, described so vividly by Mehta. In the final analysis, the Modi Model may be a challenge not only to opponents in other parties but also to those like the RSS and conservatives within the Sangh Parivar.

editor@indialegalonline.com May 15, 2014

MAY 15, 2014

VOLUME. VII

ISSUE. 17

Editor-in-Chief Inderjit Badhwar Managing Editor Ramesh Menon Executive Editor Alam Srinivas Senior Editor Vishwas Kumar Contributing Editors Naresh Minocha, Girish Nikam Associate Editor Meha Mathur Deputy Editors Prabir Biswas, Vishal Duggal Art Director Sudhir J Kumar Deputy Art Director Anthony Lawrence Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator Kh Manglembi Devi Production Pawan Kumar Verma

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May 15, 2014

LEAD/ THE NATION / ELECTIONS 2014

Letter from the editor INDERJIT BADHWAR digs into the symbolic significance of the much ballyhooed Gujarat Development Model. Is it any different from models followed by other states or is it a carefully calibrated electoral hype designed to dispel Modiâ&#x20AC;&#x2122;s image as the RSS poster boy?

DE-MYSTIFYING THE GUJARAT MODEL While the development story of Gujarat has several positives to make India proud, the state prospered before Modi arrived on the scene, and other states have done better on the human index, writes RAMESH MENON

Craving for the 1999 magic A huge pro-BJP surge in Bihar and Uttar Pradesh holds the key to whether the Bharatiya Janata Party will surpass the 272-seats mark along with its allies. Can Narendra Modi pull it off with the Hindu polarization card again? An in-depth statistical analysis by GIRISH NIKAM

Prophets of hatred The political scenario has always been vitiated by character assassination, communal and casteist vitriol spewed by desperado politicians out to catch votes. But this time a more vigilant Election Commission is stepping in to silence the voices of those who would provoke violence, reports SHOBHA JOHN

Thorns ahead? What cautious or bold steps will President Pranab Mukherjee take if no political alliance achieves a clear majority? BHAVDEEP KANG analyzes the precedents set by past heads of state

22 28

GLOBAL TRENDS

Bully brands

ALSO

Free competition and choices are under challenge in North America, as a few food brands have aggressively set out to capture the world market. DAVID E GUMPERT provides an insight into their working

Power games Money laundering

All you need to deal in this illegal parallel economy is a `10 note, a trustworthy contact, and enough guts to carry millions of rupees, writes ALAM SRINIVAS CASE STUDY

Stillborn

A Mississippi (US) court sets aside murder charges against an African American woman, who consumed cocaine during pregnancy. NINA MARTIN describes how the case became an emotive issue for women’s and unborns’ rights groups SPORTS

Shuttlecock blues Badminton ace Saina Nehwal, who once smashed her way into the hearts of even her competitors and wowed the world with her power play, is fizzling out. GAURAV KALRA writes that she could take a leaf out of tennis player Rafael Nadal’s comeback

The Ukraine crisis is the result of Uncle Sam’s desire to expand its sphere of influence, and Moscow’s growing insecurity about Kiev’s inclination to join NATO. SEEMA GUHA describes the contrasting ideological pulls in this east European nation BOOKS

Big event, big entries

A series of books on are on offer this election season to help you fathom the complexities of the country. INDERJIT BADHWAR comments on Pitfalls of Indian Democracy: Bapu to Anna by Hari Jaisingh

Cricket, commerce & corruption

Cricket Czars: Two Men who Changed the Gentleman’s Game by ALAM SRINIVAS provides an insight into the machinations of N Srinivasan and Lalit Modi. Extracts from the book

REGULARS

SPECIAL STORY

64 Two-decade wait for justice in Kerala ….....32 Kingfisher’s Czar of Bad Times… ..............36 Allahabad court order against Supertech…..44 Column: On the election fraud in Arunachal Pradesh ....47 Troubled times for Kerala CM Oommen Chandy.. .....48 Trauma of fathers in divorce cases.............56

Letters…....................................................................................8 Ringside…...............................................................................10 Supreme Court........................................................................11 Is That Legal?..........................................................................76 Consumer Watch ....................................................................78 Wordly-wise .............................................................................81 People .....................................................................................82 Cover Design: ANTHONY LAWRENCE Cover Photo: GETTY IMAGES May 15, 2014

LETTERS

e Prizner Win000 `1

LETTER OF THE FORTNIGHT A thought to the women

IT is truly heartening to see that the April 15, 2014 issue of India Legal contains as many as three articles on legal aspects pertaining to women. The Runaway Bridegroom (by Mahesh Trivedi) reveals the dire need to strengthen the system to curb the increasing number of cases of desertion of women by their NRI husbands and the need for stronger governmental intervention to facilitate meaningful assistance to these distressed wives. The loophole of the 2005 amendment to the Hindu Succession Act, which gave equal rights to daughters to get a share of their father’s property as that of sons, is aptly highlighted in House of Discord (by Shivani Dasmahapatra). Apparently, despite the good intentions to overcome gender inequality and discrimination, this piece of legal reforms left a category of women—the wives of sons—by the wayside, dealing a harsh blow. The plight of harassed husbands, as brought out in Save Our Souls (by Anik Basu), reflects the other side of the story. It highlights the misuse of the provisions

E-MAIL TRAIL Global correspondence triggered by India Legal Thursday, April 10, 2014 I am now reading through your latest edition of India Legal starting with the editorial. A courageous endeavor, much to be admired. Yesterday, I interviewed two professors at MIT, both Chinese, for To The Mountaintops. I discussed with them India via-a-vis China. Interestingly, they were MUCH more critical of the Indian political/legal/economic system than most of the Indians I spoke with during our recent trip. The MITers maintain that India is hopelessly

May 15, 2014

of Section 498A, IPC relating to dowry harassment. This definitely calls for an urgent systemic solution. These articles bring out the multifaceted aspects of the legal provisions

and the impact on individuals, both men and women. This, by no means could be achieved without thorough research. I am looking forward to many more such articles. Miranda Ingudam Under Secretary, Lok Sabha Secretariat New Delhi

corrupt and inefficient as compared with China and is therefore doomed to wallow in the doldrums. The Indians I spoke with are optimistic that positive change is already being demonstrated in many ways. India Legal, viewed as a constructive leap of faith building, seems to me to be very much part of that optimistic mindset. James Gabbe, Reconteur, To the Mountaintops New York

Friday, April 11, 2014 Editor replies: My view is that the penultimate corruption is the stifling of dissent and creativity. And mass murders by governments of which China has been a showpiece. India

has always been bursting at the seams with ideas, contrarianism, multiple choice, poetry, philosophy, films, the largest free press in the world, elections, public anti-corruption crusades that would make Jefferson proud. Indian agriculture is a shining example of how a once starving nation gained surpluses and self sufficiency through small, independent farmers, while there were famines under the Chinese Communists that took millions of lives—all whitewashed and hidden behind the bamboo curtain. There has never been or be Tiananmen Square in India. The Chinese should send observers to watch the Indian general election show underway, in which voters more than twice the size of the US population are casting their votes peacefully and on issues ranging from corruption to gay rights to stricter anti-gay rights. Chinese India-baiters would call this indiscipline because the ring of freedom has been not in their ears but around their nose. When did you last hear of a modern Chinese poet or novelist? India’s literary creative scene and international book fairs are the envy of world publishing.

into our movie)—bluntly critical of certain aspects of China’s political and economic systems and of its culture as well. As we’ve mentioned prior, we have much experience with Chinese who, when speaking on the record, pull their punches when talking about the PRC (China). This rather august professor wasn’t one of them. One likely reason is that he has been living in the US for some time (travels to China frequently) and has US Citizenship. James Gabbe

Friday, April 11, 2014 Well the Communist party is OK with criticism that is in-line with its current dogma of being anti-corruption. I stand by what I said. Any Chinese with family still in China are likely to feel intimidated about speaking frankly. There is an interesting Op-Ed in today’s New York Times you may have read, about how criticism of the mass murders that happened during the Cultural Revolution is still off limits. Richard Russell

Saturday, April 12, 2014 Friday, April 11, 2014 You are preaching to the choir. I’m in awe of India and the Indians. I have great admiration for China as well. The differences are stark and provocative. So are the commonalities. A story to be shaped and shown. Hence, To the Mountaintops. James Gabbe

Friday, April 11, 2014 Well here are my two cents. I think the MIT folks are in fear of consequences should they be overly critical of China. China is routinely suppressing the free flow of information to its citizens. Witness Bloomberg’s self censoring to maintain a foothold in china. Is there a magazine like India Legal in China? For Chinese to assert that corruption is more rampant in India than in China is odd. Let's not pay ‘the china price’ of keeping silent about their dictatorship. — Richard Russell

Friday, April 11, 2014 Up the ante to three cents. One of the MITers was on the record (which means, ultimately,

It will be only a matter of time that India will be more like China and China like India (in terms of) the desirable parts. Also, isn’t it a cultural trait (that) the Chinese being tolerant and harmonious do not like to criticize their government, say unlike South Korea and France? Quoting James Gabbe: A glory of India is that India Legal can be published. A glory of China is that many hundreds of millions have experienced vast improvement in their fundamental well-being in a few decades. China, I believe, will someday have an Indy (Inderjit Badhwar) creating a “China Legal”. India, I believe, will someday be a vastly more equitable place in terms of fundamental well being. It’s thrilling to watch these two giants shaping their destinies as new global dynamos. — Hong Liu

Sunday, April 13, 2014 Thank you, Ms Liu. You are a key part of our effort to tell our Mountaintops tale in a way that, enlightens and helps to bring people with different views a mite closer together. James Gabbe

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

May 15, 2014

Aruna

VERDICT The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. â&#x20AC;&#x201D; Judge Learned Hand

May 15, 2014

SUPREME COURT

P Sathasivam calls it a day T

he Chief Justice of India P Sathasivam retired on April 26, 2014. He was succeeded by Justice RM Lodha. In his tenure at the Supreme Court, Sathasivam passed landmark judgments in Jessica Lall, Sanjay Dutt, mercy petitions and Muzaffarnagar riots cases, among others. PROMOTING JUSTICE (L to R) Managing Editor, APN TV, Vinay Rai; Rajshri Rai, Editor-in-Chief, APN TV; and Inderjit Badhwar, Editor-in-Chief, India Legal, presenting the inaugural copy to P Sathasivam Anil Shakya

Education for all T

he Right to Education (RTE) Act may have made it mandatory for children aged between six and 14 to get compulsory education in India but the scenario is deplorable. While responding to a PIL filed by the National Coalition for Education, the apex court asked the center and the union territories to explain why there was an acute dearth of schools and trained teachers in all parts of India. The PIL pointed out that this was violating the RTE Act. It referred to numerous studies, which indicated that around 3.77 crore children between six and 14 years couldnâ&#x20AC;&#x2122;t attend schools, as the concerned governments had failed to provide the required infrastructure and the right ambience. The lawyer representing the coalition also wanted the court to instruct states and union territories to finish neighbourhood mapping for schools, followed by construction of new schools, appointment of additional trained teachers every month, as well as improvement of school infrastructure. May 15, 2014

SUPREME COURT

Cleaning the augean stables I

Voting rights for NRIs N

on-resident Indians (NRIs) flying into the country to cast their ballot is not a new phenomenon. But the apex court, committed to ensure that nobody is kept away from voting, took up cudgels on behalf of the community. It was at the court’s insistence that the Election Commission (EC) had earlier examined whether it was possible for NRIs to vote from overseas in the 2014 general elections through Internet or postal ballot. The initiative then was in response to a petition from NRI doctor Shamsheer VP. The petition put up the logic that if staff at Indian missions could vote at embassies or high commissions, why was it mandatory for NRIs to be in India for exercising their franchise. However, after hearing the arguments put up by EC, a bench of Justices KS Radhakrishnan and Vikramjit Sen agreed that it was too late for the commission to implement any process, as voting was already over in some phases. The bench felt doing so would open a “Pandora’s box”. The commission cited statutory and logistical problems, even though it agreed that NRIs must exercise their franchise. The court also asked the center and the EC to come back to it with a viable process. It also directed the EC to submit the panel report on options for NRI voting.

May 15, 2014

n a verdict that set the cat among the pigeons in India’s corporate sector, a bench of Justices KS Radhakrishnan and Vikramjit Sen recently ruled that the Comptroller and Auditor General of India (CAG) had the legal right to check account books of private telecom companies having revenue sharing arrangements with the government on spectrum use. However, the bench also made it clear that the audit was not mandatory as per the law. While rejecting petitions by telecom service providers that the CAG couldn’t be allowed unbridled access to account books, the bench pointed out that a thorough scrutiny was crucial to ascertain there was no illegal gain to the service provider and undue loss to the government. The judgment paved the way for private companies in coal and power sectors doing partnership business with government to come under the spotlight of the CAG. The timing of the ruling is spot on, considering the apex court is looking into the 2G spectrum scam, alleged irregularities in coal block allocations, and the Reliance gas price controversy.

In favour of childcare W

orking women in India couldn’t have asked for more. Especially those saddled with childcare at home. While overruling a verdict of the Calcutta High Court, a bench of Justices SJ Mukhopadhaya and V Gopala Gowda allowed women working in central government to go on “childcare leave”

for two years at the most during their tenure of service. Referring to Rule 43C of the Central Civil Services (Leave), the bench said such a rule was applicable only for up to two minor children. It spelt out that childcare was not necessarily related to rearing, but also included attending the child for exams or during sickness. The court was hearing an appeal filed by a government servant Kakali Ghosh, whose request for leave was first turned down by the government, granted by CAT, and again rejected by the Calcutta High Court.

Third gender, now official W

Swear by death O

ne may think that a dying declaration is a crucial evidence in any trial process, but there are grey areas. The Supreme Court observed that the credibility of a dying declaration needs to be ascertained before considering it as a compelling evidence. A bench of Justice RM Lodha and Justice Shiva Kirti Singh noted that the declaration should be in the “actual words” of the victim, instead of being instructed by somebody else, to mitigate any doubt over its credibility. Based on this premise, the bench quashed the verdict of the Karnataka High Court that had convicted three people in a 2002 murder case. Earlier, the lower court had acquitted the accused on finding the death declaration doubtful.

Illustrations: Aruna

hile the apex court’s decision to vindicate Article 377—in which consensual sex between two gay adults is a crime—last December enraged the LGBT community, urban Indians and gay activists, the recent decision on transgender community opened up a world of opportunity for a section abused and marginalised by society. Considering that transgenders have every right to enjoy freedom of expression (Article 19) and live with dignity (Article 21), a bench of Justices KS Radhakrishnan and AK Sikri recognised them as “third gender”, separate from male or female. The bench also directed the center and state governments to include the community among the backward classes. The landmark judgment gave transgenders legal status, protection, and benefits. The transgenders could now avail the benefits of welfare schemes besides reservations in educational institutions and government jobs.

Admission pangs T

he nursery admission jigsaw puzzle of Delhi schools is becoming difficult to piece together with every new twist and turn. After the Delhi high court's interim order early April had allowed schools to admit children selected in neighbourhood and other categories, the apex court stalled the process. A bench of Justices HL Dattu and SA Bobde took into account that the inter-state transfer criteria was not included in the high court order while issuing notices to the Delhi government and other respondents. The high court had also postponed taking up the issue of points awarded to inter-state transfer category in its order. The parents of students under the inter-state transfer category had therefore appealed against the high court order. The counsel for parents, senior advocate Nidhesh Gupta alleged that the high court was silent on inter-state transfer seats that were vacated after the Delhi government’s February 27 notification had scrapped the five points awarded to children in the category. He pointed out that inter-state transfer children had virtually no chance of getting admitted after the high court order, as the empty seats were to be offered to the alumni category, with the same number of points. May 15, 2014

LEAD/ gujarat development

MYTH, MANIA OR

REALITY? S

narendra modi can claim credit for his state’s consistent growth and ability to attract huge investments. but has this helped improve the lives of the poor or ensure inclusive development? By Ramesh Menon 14

May 15, 2014

upporters of Narendra Modi wax eloquent how the Gujarat Development Model can change the future of India. Ask them what it is and you will find them mouthing the same thing that both Gujarat and BJP ads scream about. What they talk about is the Modi’s style of governance. Gujarat was always a prosperous state fired by its enterprising people who were born entrepreneurs. They did well wherever they went. No wonder that motels in the United States are jocularly referred to by the Americans as “Potels”, as Gujarati Patels run it successfully. Take a peek at how many Patels and Shahs are there in the

telephone directory in London and you will see the influence and power they wield. However, Modi’s public relations campaign to project himself as a development guru must also give credit to Gujaratis. Prof Sarman Singh, head, Division of Clinical Microbiology, All India Institute of Medical Sciences, New Delhi, asks a pertinent question: “Would Modi be as effective if he was heading states like Uttar Pradesh and Bihar?” Other states have their own development models. Decades ago, Kerala developed one that is now discussed globally. States like Bihar, Odisha, Punjab, Madhya Pradesh, Chhattisgarh, Uttarakhand and Tamil Nadu have consciously worked on different models to push inclusive growth and improve development indicators. Still, no critic can deny Modi’s achievements in terms of growth, investments and development. He is the darling of industry associations such as CII and FICCI. The “Vibrant Gujarat” jamboree attracts hundreds of businessmen, not just from India but abroad. A few years ago, almost 9,000 MoUs worth `1,239,562 crore were inked at the investment fair. Recently, the two Ambani brothers promised to invest a cumulative `85,000 crore in the state. And Tata Group opted for Gujarat as the location for its Nano car project. In all these aspects, Gujarat is dazzling. Modi often mentions that Gujarat is one of highest contributors to the Gross Domestic Product. He highlights Gujarat’s manufacturing miracle. But the fact remains that “alternative” models in other states have worked equally well. R Nagaraj and Shruti Pandey wrote in the Economic and Political Weekly that if import-intensive and resourcesensitive petroleum refining sector was taken out, Gujarat’s manufacturing would contribute a smaller share. Two refineries in the state, owned by Reliance Industries and Essar Group, are force multipliers for Modi. In addition, Bihar under Nitish Kumar has emerged as the fastest-growing state with a rate of 10.9 percent. Between 2006 and 2010, Bihar shed its BIMARU status (an acronym for sick states). While Gujarat was the fastest growing state between 2001 and 2005 with an average rate of 11 percent, the growth rate

dipped to an average of 9.3 percent between 2006 and 2010. This allowed Chhattisgarh, Haryana, Maharashtra and even Orissa to overtake Gujarat. Gujarat is one among several prime investment destinations. According to the Department of Industrial Policy and Promotion, the topmost state in 2013 was Odisha, which attracted `97,833 crore, followed by Madhya Pradesh (`87,812 crore). Gujarat came third (`81,032 crore). Gujarat ranked fourth among states in terms of FDI destination between 2000 and 2009. In 2011, it fell to the sixth place, after Maharashtra, National Capital Region, Tamil Nadu, Karnataka and Andhra Pradesh. Maharashtra’s FDI inflows were almost nine times higher than Gujarat. One of the main ingredients of Modi’s development model is the access to basic amenities. One of the state’s successes was to provide piped water to most people in record time. The Sardar Sarovar Narmada project, which entails an investment of `22,000 crore, has led to the construction of almost 20,000 kms of canals. The state witnessed the building of 100,000 check dams and thousands of water harvesting schemes. Has this guaranteed better quality of life for the poor? India’s Human Development Report 2011 showed a high rate of child

FLAUNTING GROWTH A file photo of Vibrant Gujarat Summit 2013

Alternative models in other states have done as well as Gujarat in recent times. Bihar, Odisha and Chhattisgarh have pushed for more inclusive growth. May 15, 2014

LEAD/ gujarat development

low and falling per capita PDS consumption and the highest rate of food grain diversion. BPL lists in the state have not been updated since 1998 and there is fear that many of the names are fakes. Data provided to the Supreme Court in June 2013 on the Right to Food showed that Gujarat provided subsidized grain to 7.35 lakh families under the Antyoday Anna Yojana and 24.35 lakh BPL families in total. In comparison, according to the Right to Food Campaign, a network of activists, the Food Security Act would benefit 77.24 lakh families in the state.

GREENER PASTURES Nano Plant of Tata Motors at Sanand

malnutrition in Gujarat, with 69.7 percent kids of the age of five being anemic and 44.6 percent suffering from malnutrition. According to the latest census, Gujaratâ&#x20AC;&#x2122;s infant mortality rate of 38 per 1000 births was much higher than Keralaâ&#x20AC;&#x2122;s 12. The maternal mortality rate in Gujarat is one of the worst among the mainline states. In the last two years, when Modi faced flak, he realized that he had to work on these areas to gain wider acceptance. He increased allocations on health and education in the latest budget. Some of the new health schemes can be replicated nationally, says Gurgaon-based health activist Heer Choksi. One of them is the Mother and Child Tracking System to track children under five years and pregnant women and ensure they get health care. Gujarat is now setting up web-based health information and monitoring system to ensure better delivery. Modi has criticized the National Food Security Act, saying it was not expansive enough. He should have possibly investigated the existing Public Distribution System (PDS) in Gujarat. According to research by Reetika Khera of IIT (Delhi) for the National Sample Survey Organization, Gujarat has a

Gujarat was well-developed and well-governed before Narendra Modi too. The roads were in very good condition in the 1970s and 1980s. 16

May 15, 2014

n the last Gujarat assembly elections, Modi asked audiences why India had not accomplished what Gujarat had under his leadership. It was very much clear that he was signaling how he could replicate the Gujarat style of governance nationally to rescue India from policy paralysis and economic slowdown. When it comes to governance, Modi rules with authority. Things do move faster as red tape is minimized. If you want to set up an industry or invest in Gujarat, you will get immediate response from the state officials. Officials bend over backwards to accommodate the demands of business community. But what has his style of governance really achieved for his state? When Bihar made demands for more central funds, the government set up a committee under economist Raghuram Rajan. Under its new formula for central allocation, states like Kerala would get lesser funds while Bihar would get more. Surprisingly, Gujarat was classified as one of the less developed states. This did not amuse Modi loyalists, who claimed Gujarat was the most developed state. Modi complains how New Delhi did not care for states, where the Congress is not in power. But Gujarat was unable to spend the money given by the center. For example, `957.95 crore was allocated for constructing offices for the roads and buildings department, but not even half the amount was spent. Citing such examples, the CAG said that there was a wide variation under most major heads of account and pointed out that Gujarat failed to produce a utilization certificate of `9 ,066.34 crore. According to

CAG, 67 percent of central grants for 2010-11 allocated for Kanya Kelavni, the prestigious annual girl child education campaign, were unused and returned. Out of the allocation of `11.55 crore for implementation of the Rashtriya Madhyamik Shikshan Abhiyan, 99.2 percent was returned. Out of the `97 crore allocated for computer literacy and studies in schools, 67 percent was returned. The entire `40 crore for creating a long term flood mitigation project was returned. “Gujarat needs to improve its social indicators and be on par with states like Kerala, Karnataka and Maharashtra,” says Planning Commission member Sayeda Hameed. Everyone who visits Gujarat talks of the state of roads. But even in 1978, when I first went to Gujarat as a cub reporter, the roads were in excellent condition. Potholes were difficult to find on the state highways. Large industrial estates were being built then too. Every state chief minister, irrespective of the party he belonged to, pushed for the growth of commerce and industry. To be fair to Modi, what he did was to give a fillip to large business groups by giving them cheap land and tax sops in plenty. In the last decade, Modi’s regime acquired farmlands that were spread over thousands of acres, and converted them into industrial zones. The farmers haven’t always been happy with the acquisitions. Leading a movement against acquisition is former BJP MLA Dr Kanu Kalsaria. He got farmers to oppose a move to allot 700 acres to Nirma for a cement plant. While officials said that it was wasteland, 300 acres included wastelands and reservoirs that 50,000 farmers benefitted from. Acting on a complaint, the Ministry of Environment and Forests cancelled the plant’s environment clearance.

There are other stories about the adverse impact on farmers. In the late 1990s, farmers willingly gave away fertile land for the Sardar Sarovar Narmada Dam as they hoped that the network of irrigation channels would bring water to their fields. In 2000s, during a decade of Modi’s rule, they realized that 80,000 hectares of the 1.84 million hectares that was to be irrigated was denotified, and sold to businessmen. More land is being identified under the proposed Special Economic Zones, Special Investment Regions, industrial parks and estates. A study, Poverty Amidst Prosperity: Essays on the Trajectory of Development in Gujarat, suggests that numerous indicators like employment, social equality, sustainable livelihoods and access to education, health and justice took a back seat in Modi’s race for economic growth. NSSO data showed that the state’s employment growth was 2.69 percent per year between 1993 and 2005. Between 2004 and 2010, it came down to near zero percent. Rural employment suffered, as farmers had less land for cultivation. Land owning patterns changed with the growth of the industry. In the late 1990s, Planning Commission and UNDP approached the Centre for Development Alternatives (CFDA), an academic research centre in Ahmedabad, to produce the state’s Human Development Report. It was completed in 2001. But it projected the state in a bad light vis-à-vis health, education, and sex ratio. Modi refused to sign it. He raised several objections to the CFDA statistics. The researchers refused to change anything. The report shuttled from one department to another. Finally, Modi signed it in 2003. Gujarat does not have a State Planning Commission. It has not made a plan

POWER DISPLAY Adani Group’s Mundra Thermal Power Station in Kutch district

May 15, 2014

LEAD/ gujarat development

Getty Images

ABROGATING RIGHTS Farmers of Gujarat protest against the state government's decision to develop Mandal-Becharaji as a special investment region at a rally in Gandhinagar

May 15, 2014

document in the last 10 years. An academician, who follows the state’s policies, says, “If you ask officials about the lack of long-term planning, they say that the plan is made by Modi.” Gujarat does have annual plans but not the five-year ones. A retired bureaucrat, who was rehabilitated by Modi, says: “There is no need for a State Planning Commission. We know what is going on. We brought out a report in 2004 and that is enough. It does not have to be done every year.” Modi recently said India first had to build toilets, and the construction of temples could wait. But it would have helped if he had looked into his own backyard in Gujarat. His government shut off areas where people relieved themselves with huge walls or plantations. The idea was to camouflage areas where VIPs would pass by while travelling from Ahmedabad to Gandhinagar. Shankersinh Vaghela, a former chief minister of the state, said: “Modi is just trying to be dramatic. Does he not know that out of the 50,000-odd anganwadis that the government runs, more than 18,000 have no toilets? He should first put his state in order.” A

2012 CAG report confirmed this. The Gujarat Pollution Control Board issued notices to 8 municipal corporations and 159 municipalities for not following guidelines on solid waste disposal. In 2004, Gujarat claimed it was free of manual scavenging but continued to avail of central grants to liberate scavengers. However, a 2006 survey by Tata Institute of Social Sciences said that 12,000 people in the state still carried “night soil”. According to census figures, 52 lakh households in the state do not have a toilet. Over 64 lakh households do not have drainage facility and 49 lakh people are defecating in the open. Gujarat has worked under Modi. But the state has always worked. In fact, in the 1970s and 1980s, I have seen similar kind of efficient and effective governance in Gujarat. It is not that Modi did not do any good work. It is just that other CMs before him have done it too, not just in Gujarat but elsewhere too. Modi may find it difficult to replicate the socalled Gujarat model across the country, but it has helped lift the issue to a national level of debate. IL

THE NATION / elections 2014 / modiâ&#x20AC;&#x2122;s prospects

Craving for 1999 magic will the bharatiya janata party, under its new prime ministerial candidate, repeat the performance that atal bihari vajpayee achieved 15 years ago? By Girish Nikam UNI

BASKING IN GLORY Modi acknowledging the huge public turnout at his Varanasi rally

May 15, 2014

THE NATION / elections 2014 / modi’s prospects

OW does one look at the ongoing general elections in the country, as it reaches its final stages? Do we look at it from the prism of 1999 elections, when the Bharatiya Janata Party (BJP) was at its peak and Congress suffered its worst defeat ever? Or do we look at it from the 2004 point of view, when India Shining brought grief to the BJP and National Democratic Alliance (NDA)? Or will 2014 be an entirely different ball game? What’s the similarity between 1999 and 2014? One certainly is the larger-than-life image of the prime ministerial candidates. In 1999, Atal Bihari Vajpayee, who had already served a short term as prime minister from 1998, had this halo around him, especially after the Kargil war. He had by then become the undisputed leader, who also carried a huge sympathy wave after his government fell because of disloyal partners. In 2014, the BJP also has a prime ministerial candidate, who has emerged over everyone else, riding what some may call a manufactured consent, though the support from the rank and file is indisputable. Through the time that elections were announced in early 2004 till the results in May, the Vajpayee wave swept the country. There was no state in the country, even where BJP did not exist,

that people didn’t speak of him. A similar situation prevails today, where Narendra Modi has become virtually a household name. The addition to the 2004 kind of wave today, which goes in favor of the BJP, is the severe anti-incumbency factor, as well as a sense of fatigue with the UPA government after 10 years of it being in power. So, will the UPA government meet the same kind of fate, which the NDA met in 2004? Going by all indications, it will. However, whether the Congress suffers humiliation in 2014, to the extent the BJP did in 2004 (when it won 138 seats down from 182 in 1999), or whether it will be worse than that (like the BJP suffered in 2009, when it came down further to 116 seats) is a moot point. For the BJP and its PM-candidate Modi, it would not be enough to repeat its 1999 performance, when it won 182 seats. For all the efforts and meticulous planning and hype, which has been generated at unprecedented scale, anything less than 200 seats will be seen as average performance. How does BJP get over 200 seats? From where can it make that quantum jump from its 2009 tally of 116 seats to reach 200? It can only come from Uttar Pradesh (UP) and Bihar, where it had just 10 and 12 seats, respectively, in 2009. The two states, which send 120 members of parliament to Lok Sabha together, are highest on Modi’s priority. If the two states can bring in around 60 seats to the BJP, it will be possible for it to reach or cross that crucial 200 mark, which will mean reaching the 272 magic figure with relative ease, though it would have to cobble more alliances. The crucial question in both UP and Bihar is: will the BJP be able to overcome caste-based politics and weave a Hindu votebank pan-India? It did manage that in 1998, winning an unprecedented 57 seats, and so also in Bihar where it won 20 seats. That was a shortlived Anis Khan

May 15, 2014

euphoria as in 1999, with Vajpayee wave at its peak, it slid down badly to just 29 seats in UP, though it bettered its 1998 performance in Bihar winning 23 seats. Is the Modi “wave” in UP bigger than the Vajpayee wave in 1999? Can it manage to recreate a 1998 or even come near it by overcoming the caste divide as it seems to have done then, and cobble up a Hindu vote bank? Going by the communal polarisation one witnessed in Western UP which went to polls on April 10, it seemed possible. But as the polls move towards central and eastern UP, some questions are being raised about that communal wave, with visible signs of it waning. Caste equations are taking centrestage. Similarly in Bihar, where it reached its peak performance in 1999 with 23 seats, in alliance with the Janata Dal (U), it has a huge challenge on hand. It won only 12 seats in 2009, in alliance with JD (U) again, and now for it raise it to around 20, without the JD (U) will be a tough ask. How much can the Modi “wave” ride over the caste politics of Bihar, and consolidate Hindu votes, is a moot point again. And how much its alliance with Ram Vilas Paswan’s Lok Janshakti Party (LJP) can help it is still a matter of conjecture. Another big factor, which should be bothering the BJP in its quest for harmonising the Hindu vote in Bihar is the apparent revival of Lalu Yadav’s Rashtriya Janata Dal (RJD), which can spoil their game. The story of Bihar is also about the consolidation of minority votes in favour of the RJD-Congress alliance. If it is helping the Samajwadi Party in UP, it’s also benefiting the Congress-National Congress Party (NCP) alliance in Maharashtra. The question, however, still remains: will this anti-Modi mobilization among the minorities lead to strategic voting, as expected by the non-BJP, nonNDA parties, or will it get diffused, as some in Uttar Pradesh fear? One of the major hurdles for the BJP to reach the crucial 200 figure mark is also the internal bickering in the party, as some feel. Though the dissonance one witnessed soon after the elections were announced, including LK Advani’s unhappiness, Jaswant Singh’s decision to contest as an independent

candidate and Murli Manohar Joshi’s dissatisfaction, has been buried now, the echoes of it are still heard. The significant number of defectors getting tickets (over 50, with 26 of them in UP itself ) is a factor, whose damaging possibilities cannot be undermined. For the BJP, one of the most crucial elements in this election is to convert it into a national vote rather than allowing it into an aggregate of states. For some years now, pollsters and analysts have been talking of Indian elections having been an aggregate of state elections, where each state behaves differently, depending upon the issues concerning it. So, has the Modi “wave” managed to convert this into a national elections, where state issues and concerns are overridden by a national issue—Modi for PM? According to Sanjay Kumar from Centre for the Study of Developing Societies, this trend is visible in some states, though it is not uniform across the country. “People are indeed talking of voting differently in those states, where the assembly and Lok Sabha elections are both being held,” he says. It is probably this trend, which has encouraged various pollsters and the media to project a growing support for the NDA, with one poll even getting it beyond the 272 mark. However, these elections are as much a test for these pollsters, as much as it is for Modi and his machinery.After having repeatedly failed to predict the outcome both in 2004 and 2009, their reputations are as much at stake, as Modi and his machinery’s ability to live up to the pollster’s predictions, and not having peaked too soon. IL

HISTORIC MANDATE Vajpayee being sworn in as PM by president KR Narayanan in 1999

May 15, 2014

THE NATION/ elections 2014/hate speeches

campaigning for the lok sabha has seen a new low. hate speeches, name-calling, attacks on character and marital status are all par for the course. is all fair in politics? By Shobha John 22

May 15, 2014

t’s a free-for-all now. Vicious, vile, vituperative. Accompanied by shrieks, shouts and screams. Never before has the political arena seen such personal attacks as this Lok Sabha campaign. So, be it politicians unleashing a full frontal attack against other male opponents, women referring to the age of other female contenders or cousins hitting out at each other — this election has seen it all. The language of political discourse has deteriorated to such an extent that all kinds of words are bandied about. “Idiot”, “stupid”, “monkey” seem banal as compared to ‘will chop you to pieces’. The “lakshman rekha of politics” has been crossed by pretty much everyone. The new low to which campaigning has stooped is the open threats leaders are issuing to voters to toe the line or suffer the consequences. Maharashtra Deputy Chief Minister Ajit Pawar, who is NCP leader Sharad Pawar’s nephew, allegedly threatened a village to vote for his cousin Supriya Sule, failing which he would ensure that water supply to the village stopped. At a rally at Bulandshahar bypass in Uttar Pradesh, Mulayam Singh Yadav threatened school teachers that if votes didn’t come, they would lose their permanent status. But these pale in comparison to the venom spewed on religious lines. BJP leader Giriraj Singh commented during a rally in Jharkhand: “Those who want to stop

Narendra Modi from becoming prime minister will have no place in India in the coming days. They will only have place in Pakistan.” The reference to Muslims was too obvious. VHP leader Pravin Togadia raised the pitch even further, instigating a group of Bajrang Dal and VHP members in Bhavnagar to forcibly occupy a house purchased by a Muslim in the Hindu-dominated Meghani Circle. He warned the Muslim to vacate the property within 48 hours, failing which the Hindus should attack him with stones, tyres etc. He assured them that nothing would happen, that court cases drag for years. The Election Commission stepped in, banning Giriraj from campaigning and directing the Bhavnagar administration to file an FIR against Togadia. But what upset everyone equally was the otherwise suave Shazia Ilmi of Aam Admi Party saying that Muslims have been too secular, and should become communal for their own good. Personal remarks flung at each other during the campaign period are equally shocking. Take BJP leader Subramanian

CRASS WAR (Facing page) VHP leader Pravin Togadia instigated a gathering to forcibly evict a Muslim from his property in Bhavnagar (Above) Even Priyanka, otherwise aloof, lost her restraint and dragged her cousin into a verbal duel

“Rural India is not the only consumer of crass. There is a vulgar middle class with money and loves distasteful content.” — PRATHAP SUTHAN, brain behind BJP’s “India Shining” May 15, 2014

THE NATION/ elections 2014/hate speeches

Swamy’s comments on reports saying that Priyanka Gandhi was willing to contest from Varanasi against BJP’s PM nominee Narendra Modi. He reportedly said, “They saved her. She would have got a thrashing. She is very unpopular, she drinks too much alcohol and she has a bad name, her husband has a bad name.” Earlier, Congress leader Imran Masood from Saharanpur said Modi would be chopped to pieces in UP. The

Counterpoint

Changing Muslim mindset Azam Khan’s statement actually reflects a rejection of the two-nation theory By Gopal Misra

t was the ultimate dream of many Muslims in prePartition India: a separate Muslim homeland in South Asia. But more than 65 years after the creation of Pakistan, many say that dream has been shattered. Azam Khan, an Uttar Pradesh (UP) minister and Samajwadi Party leader, is one of the many such disillusioned Muslims in the political weathervane state, whose beliefs and politics have turned the two-nation theory on its head. Khan sparked off a huge controversy recently, when he said Muslim soldiers chanting Allah-o-Akbar, the battle cry of Islamic jihadis against infidels, were responsible for India’s victory in Kargil. The Election Commission banned him from campaigning for the parliamentary election following the

May 15, 2014

degeneration of political discourse was obvious last year when Congress president Sonia Gandhi reportedly called Modi “maut ka saudagar”. This below-the-belt attack has percolated to the cadres too. IT’S GETTING PERSONAL When does an attack become personal? Social scientist Shiv Visvanathan explains: “It becomes personal when it invades the

speech, which, activists said, was provocative and likely to stir communal tensions, when India is in the middle of the world’s largest election. But one can say Muslim soldiers used the battle cry against fellow religious people. Muslims have always played a key role in Indian elections, and political experts say their vote is even more crucial this time. The country’s largest religious minority accounts for about 13 percent of the country’s more than 1.2 billion people. All the major political players—the Congress, the Bharatiya Janata Party and regional groups—realize that Muslims will have a huge impact on their electoral fortunes. Traditionally, Muslims have voted for the Congress, but their disillusionment with the party is pushing them to look at alternatives. They are on tenterhooks about the Hindu nationalist BJP’s likely return to power because they blame the party’s prime ministerial candidate, Narendra Modi, for Gujarat’s bloody religious riots in 2002. Thousands of Muslims were killed in the violence, regarded as the worst communal riots since the Partition. Political leaders in Uttar Pradesh refused to comment on Khan’s statement. A top SP leader said he did not want to discuss the issue until the elections are over. Pradip Mathur, leader of the Congress Legislature Party in the UP assembly, was also circumspect: “It is too sensitive to discuss during the elections.” Many Muslim leaders do not want to get drawn into the controversy for fear of alienating their constituencies in the midst of an election. “I do not believe that there is a minority issue, because the word minority is used only to protect the religious and cultural issues for a community. It should not be used for a political purpose,” says Arif Mohammed Khan, a former union minister. But some Muslims in Uttar Pradesh say they share Khan’s sense of disillusionment with Pakistan. They say that many Muslims, who had migrated from the huge northern state during the Partition, have been marginalized in Pakistan. Most of the family members of Nawab Mohammad Ismail Khan of Mahmoodabad, who had supported the cause of Pakistan, have now returned to India. He had hosted the 1937 Muslim

privacy of an individual. The question becomes complicated when he is also a public figure. Families are the source of controversy. Indian politics has always kept the personal lives of its protagonists out of the ambit of discussions. But not anymore. The personal has come to the forefront because ideology and issuebased politics have taken a backseat,” he says. This is unlike the West, where politi-

cians flaunt their families like medals. But then, it was Congress vice-president Rahul Gandhi who crossed the line, when he attacked Modi over his marital status. While Modi has always made a virtue of being a bachelor, when he filed nomination papers in Vadodara, he wrote “Jashodaben” against his wife’s name. This was all the ammunition the Congress needed. Personal lives and sensitivity be damned. Rahul said, “I don’t know how

“Kargil ki pahadiyo ko fateh karne wala koi Hindu nahi tha, balki Kargil ki pahadiyo ko nara-e-takbeer Allah-Hu-Akbar kehkar fateh karnewale Musalman fauji the.” (It was not the Hindus who conquered the peaks of Kargil, but Muslim soldiers raising the battle cry of God is the Greatest). — AZAM KHAN League session in Lucknow, where over 50,000 Muslims had gathered to endorse the demand for Pakistan amidst the chanting of Allah-o-Akbar.

ome experts say traditional secularists and Hindutva leaders are unable to interpret Azam’s statement, which actually reflects a paradigm change in the Muslim mindset. They have moved the Election Commission to put restrictions on his campaigns. Khan refuses to apologize. Experts say Khan may have ruffled political feathers, but his statement only reasserts that Muslims in India, as well as in Pakistan and Bangladesh, have abandoned the concept of the two-nation theory that Hindus and Muslims are different nations. The change is reflected across the subcontinent. Bangladesh has declared itself a secular state. In 2013, Bangladesh celebrated Swami Vivekanand’s 150th anniversary with more fanfare than pro-Hindu BJP ruled states in India. Pakistanis, despite strong opposition from the Taliban, have named a road crossing in Lahore to honor Sardar Bhagat

Singh, the Indian freedom fighter who was hanged for throwing a bomb in the assembly. The attack on Hamid Mir, a wellknown journalist in Karachi, has further disillusioned the people of Pakistan. He was shot thrice by gunmen in mid-April. The movement in support of the two-nation theory, which had blossomed with the support of the outgoing colonial rulers, is now dead. Some experts say that if there is a plebiscite in Pakistan today, few would like to remain in the socalled Muslim homeland, Pakistan. They believe Azam Khan is one of those who could really understand the disillusionment of Muslims with the concept of two-nation theory. Either way, the question on everybody’s lips in India today is: Who will the Indian Muslim vote for? It won’t be long before they have an answer. May 15, 2014

THE NATION/ elections 2014/hate speeches

SOUND BITE NARENDRA MODI: The shahzada (Rahul) and his matashree (Sonia) are just concerned about being in power. When they can forget you, why will you remember them? How long will you remember them? SONIA GANDHI: They say they will change everything in one day with a magic wand. Will the country chose as the prime minister a person who is a big liar? BJP LEGISLATOR HEERALAL REGAR: Sonia and Rahul Gandhi should be stripped of their clothes and sent back to Italy. SALMAN KHURSHID: We don’t accuse you (Narendra Modi) of killing people... Hamara aarop hai ki tum napunsak ho. (Our accusation is that you are impotent). You couldn’t stop the killers. P CHIDAMBARAM: There are deep flaws in his (Modi's) character. He cannot resist from making such provocative and derogatory remarks. BJP LEADER GIRIRAJ SINGH: “Those who want to stop Narendra Modi from becoming prime minister will have no place in India in the coming days. They will only have place in Pakistan.”

many elections he has fought. But it is for the first time that he has written he is married.” He wondered what type of women’s empowerment and dignity the BJP would dispense. Experts attribute this firing on all cylinders to an act of desperation of a waning party. “It is when you are about to be killed that you bite and chew your enemy. Survival is the destination, not the journey, however much of a cannibal you become,” says Prathap Suthan, the brain behind the “India Shining” campaign of the BJP in 2004 and chief creative officer of Bang in the Middle, a communication company. “Decorum and respect would have prevented me from advising anyone to rake up the wife issue. But then, all’s fair in love and war,” he adds. The BJP retaliated, with senior leader Arun Jaitley warning: “How many current senior Congressmen are in illicit relationships? And yet have paraded their wives only for photo opportunities during nominations.” The Congress backed off, with Rahul denying he had got personal. But that wasn’t the end of the matter. Assam CM Tarun Gogoi mockingly said the Bharat Ratna should be conferred on Jashodaben. “She is a symbol of great Indian

May 15, 2014

womanhood and a great lady,” he said. And the Shiv Sena said the Congress should first get Rahul married. IT’S INFECTIOUS All this would be laughable if it didn’t reflect the immaturity of the politicians governing our country. But if it is any solace, electoral battles abroad are much more personal and private lives are unmasked for all to see. But what surprised many was the charming Priyanka Gandhi tripping too. It was so uncharacteristic of her. But then, desperate times call for desperate measures, and the Congress does seem desperate. In her first-ever attack on cousin Varun Gandhi, who is contesting from Sultanpur, she told a gathering there that he had been led astray and that it was the duty of people to point him in the right direction. As expected, Varun hit back, saying she had crossed the “Lakshman rekha of decency” and that “decency and large-heartedness” should not be misconstrued as weakness. Visvanathan says Priyanka should know where to draw the line. “She should fight on issues; the family feud can’t become a public battle.”

TAILORED FOR BALLOTS (L-R) Shazia Ilmi of Aam Admi Party exhorts Muslims to vote on communal line; Mulayam Singh Yadav threatens teachers with consequences if they don’t vote for Samajwadi Party

outnumber the genteel class.” It’s no wonder, then, that in today’s TV hysteria, the adjective dominates the noun, says Visvanathan. “Otherwise you remain colorless. The sound byte is literally the sound bite.”

Leave aside national leaders, even smaller ones were showing similar colors. Gul Panag of the Aam Admi Party, who is pitted against Kirron Kher of the BJP in Chandigarh, tweeted: “Doubt if I’ll have the energy to run around like this and serve my people, when I’m 60. I guess that’s why there’s normally a retirement age.” Kher’s son Sikander tweeted, “Elections ki baat hai, it’s common for candidates from opponent parties to lash out at each other.” Sure enough, lashing seems common practice in politics today. But Ashok Malik, a political commentator says: “Politics has always been vicious. We would like to believe that politics in olden days was polite. The difference today is that there is social media and TV to capture every mean sound byte and shrill attack. Who knew what kind of campaigning was happening in some remote village before TV happened?” But then, TV anchors are equally responsible for the tenor of discussions. They play to the gallery to get higher viewership, says Suthan. “Sophistication doesn’t get people talking. This new style does. Rural India is not the only consumer of this crass. There is a vulgar middle class with money and loves distasteful content. They

LOUD AND VISIBLE Another reason for these personal attacks is the personalities of the main protagonists—Modi and the Gandhi family. Both evoke strong emotions. Gone are the days when political debate was imbued with wit and humour, grace and charm. Who doesn’t remember the grand oratory of Atal Bihari Vajpayee, peppered with poetry and moral courage? A TV footage of him in the presence of Modi after the Gujarat riots of 2002 shows him advising him to abide by “Raj dharma”, or a ruler’s duty. This gentle chiding is in contrast to the freefor-all, fangs-bared contest nowadays. Suthan says politicians are inflammable, easily provoked. “The louder, brasher and more controversial they get on television, the more people will love to dislike them. Either way, it translates into more shares on Facebook and mentions on Twitter. Quietness and style are no longer bankable currency.” That’s a sad commentary on our times. And those who can’t follow the rules of the game are sidelined. Like Jaswant Singh. Suthan, who worked with him during the “India Shining” campaign, says nostalgically, “He is an aristocrat. Absolutely refined. The man is and was a gem. It all comes from the upbringing, background and education.” Visvanathan finds the Scindias too imbued with civility. Is civility now housed only among the royals? However, if all this churning and vitriol throws up a good, decisive leader after the weak UPA regime, it will be worth it. Meanwhile, tolerate this cacophony. From a time when politics was the art of fighting a rival, it has descended to a struggle to eliminate the enemy. “When rivals become enemies, politics dies and life gets vicious,” says Visvanathan. Is this the death knell for civility then? IL May 15, 2014

THE NATION / elections 2014 / fractured mandate

THORNS

AHEAD 28

May 15, 2014

PIB

president pranab mukherjee will need to apply his discretion in case no party or alliance can cobble up a majority on May 16. but he has contradictory precedents to go by

T’S lonely at the top. And more so when you hold the fate of the world’s largest democracy in your hands! If the 2014 Lok Sabha elections throw up a fractured verdict on May 16, as several polls have predicted, President Pranab Mukherjee will have the freedom—and responsibility—to decide who will form the next government. History will judge him by the manner in which he exercises this political and democratic discretion. The president has no specific constitutional blueprint to guide him, and no set rules that he can follow. “Under a parliamentary system,” Dr Bhimrao Ambedkar observed during the Constituent Assembly debates, “there are only two prerogatives, which the head of the state may exercise. One is the appointment of the prime minister and the other is the dissolution of parliament. With regard to the prime minister it is not possible to avoid vesting the discretion in the president.” (italics ours). How will Mukherjee go about choosing the next PM? Will he invite the head of the largest political party, or as in 1998, the single-largest pre-electoral coalition? Will he ask for letters of support from the coalition partners and invite whichever group commands the backing of a majority of MPs in a post-electoral alliance, regardless of the individual seats of the pre-electoral association? In case no party or group is able to prove a majority, will Mukherjee swear in a minority government and let its fate be decided on the floor of the lower house? Or will he, in case of an extreme political deadlock, opt for fresh elections? Rashtrapati Bhawan sources say that in the event that no political formation can get to a majority, Mukherjee may be inclined to follow in the footsteps of President

By Bhavdeep Kang KR Narayanan, rather than President Shankar Dayal Sharma. In 1996, Sharma invited the single largest party, BJP, to form the government. The decision was criticized by experts, as the Atal Bihari Vajpayee regime fell in 13 days. In the summer of 1999, when the electoral mandate wasn’t clear, Congress President Sonia Gandhi stood in the forecourt of Rashtrapati Bhawan and categorically declared “We have 272 (members of Parliament) and more are coming”. President Narayanan wasn’t convinced. He asked for written proof from those who supported Congress. Sonia could not produce it, as she was let down by the Mulayam Singh Yadav’s Samajwadi Party at the last minute. This enabled Vajpayee to become the PM again. Following Narayanan’s example, in 2004, President APJ Abdul Kalam asked Sonia Gandhi for letters of support from other MPs and parties if the Congress wanted to form the government. These letters were produced, but had to be hastily redrafted when Sonia decided at the 11th hour that she would not be the next PM.

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THE NATION/ elections 2014 / fractured mandate

Presidents’ precedents how the predecessors resolved the tangle of a hung parliament

TOUGH CALL President Pranab Mukherjee with his Congress ilk. In case of a hung parliament, he might face the biggest test of his political savviness

1979: Total seats: 542 Janata Party: 200 Lok Dal: 64 Charan Singh’s Bharatiya Lok Dal, withdrew support to the Morarji Desai-led Janata Party. Neelam Sanjeeva Reddy asked both Desai and Singh to submit their respective list of supporters. Reddy invited Singh, with 64 MPs, to form the government.

1989: Total: 545 Janata Dal (J: 143 Congress: 197 Neither VP Singh, nor Rajiv Gandhi got clear majority. R Venkataraman invited Singh to form the government only when the Congress declined to form the government.

Senior Supreme Court advocate PP Rao believes the Narayanan model is the one to follow to ensure a stable government. “The president should ask the persons who stake their claim to form the government for letters of support in favour of the party or the party leader. He should then invite the person, who, he is convinced, has the backing of the majority”. Senior lawyer Dushyant Dave agrees: “In case a party or pre-poll alliance is nearing the half-way mark, the president should invite them. Otherwise, it is best to go with the Narayanan model”. Constitutional expert Rajeev Dhavan, however, believes Narayanan made a mistake. “The president could well have sworn in a minority government and left it to the Lok Sabha to decide its fate. The a priori demand for proof of majority in the form of letters of support is the wrong way to go about in democracy. It is tantamount to say-

PIB

May 15, 2014

1990: Total: 545 National Front: 142 Samajwadi Janata Party (SJP): 64 JD government fell and Chandrashekhar staked claim. President R Venkataraman asked for evidence of support before swearing him in.

ing that if you cannot prove your majority before the house is convened, you cannot form a government,” he observes.

he exercise of presidential discretion in the matter of a hung parliament involves bewildering complexities. Past presidents grappled with several permutations and combinations during fractured mandates. They responded in differing ways too. President R Venkataraman invited VP Singh in 1989 only after he was told that the single-largest party, Congress, did not wish to stake its claim. Although Singh’s Janata Dal fell far short of a majority, the pre-electoral tie-up with the BJP and Left Front clinched the issue. The jury is still out on whether Venkataraman should have invited the National Front rather than the Congress first, as it was the single-largest pre-election alliance. The following year, Venkataraman had to deal with a bizarre situation, when the late Chandrashekhar, with just 64 Lok Sabha MPs’ support, sought to form a minority government with the outside support of Congress. The president asked for evidence of support before swearing him in. In 1991, the country saw another minority government, headed by Congress’ PV Narasimha Rao. This, unlike Chandrashekhar’s regime, lasted for five years. In 1996, Sharma evoked the ire of the Third Front when he asked Vajpayee to form the government. Vajpayee was quickly replaced by Janata Dal leader HD Deve Gowda, who had the outside support of Congress, and later by IK Gujral. Narayanan, who assumed president’s

1996: Total: 545 BJP: 161 Congress: 140 BJP emerged as the single-largest party. President Shankar Dayal Sharma invited the BJP to form the government. He came in for criticism, as the Atal Bihari Vajpayee regime fell within in 13 days.

1998: Total: 545 BJP: 182 (NDA: 264) For the first time the BJP mooted NDA. President KR Narayanan invited Atal Bihari Vajpayee only when Telugu Desam made it clear that its 12 MPs would abstain in case of a confidence vote.

office during Gujral’s premiership, had little patience with uncertainties. In 1998, he invited Vajpayee, whose pre-election alliance had 264 members, only when Telugu Desam made it clear that its 12 MPs would abstain in case of a confidence vote. When that government fell in 1999 and no party could prove it had the support of a majority, Narayanan called for fresh elections. Until then, the overriding principle was that any government, however shortlived, was better than no government. Narayanan possibly took his cue from Neelam Sanjeeva Reddy, who, in 1979, asked both Morarji Desai and Chaudhary Charan Singh to submit lists of supporters. Although the Janata Party had a tally of 200, he chose Charan Singh and his band of 64 MPs on the basis of promised outside support, including from the Congress.

owever, as the debate about fractured mandates continues, Rao talks about a solution that has not been tried thus far. “The president can choose to summon the lower house with a single item on the agenda, that is, the election of its leader,” he says. Constitutional expert Subhash Kashyap endorses this: “The president can exercise his powers under article 86 of the constitution. Let the house throw up a leader.” In fact, Ambedkar envisaged this possibility as he contributed to the constitution’s draft: “The only way by which we could provide for the appointment of the prime minister without vesting the authority or the discretion in the president is to require that it is the house which shall in the first

1999: Total: 545 BJP: 180 (NDA 269) Congress: 114 President KR Narayanan asked Congress President Sonia Gandhi to furnish proof that she had support of 272 MPs and more were coming. She could not produce it. This enabled Vajpayee to become PM again.

2004: Total: 543 Congress: 145 BJP: 138 (NDA: 189) President APJ Abdul Kalam asked Sonia Gandhi for letters of support from other MPs and parties if the Congress wanted to form the government. The UPA took shape, with 335 MPs.

instance choose its leader, and then on the choice being made by a motion or a resolution, the president should proceed to appoint the prime minister”. Supreme Court’s Bihar judgement (2006), which dealt with Article 356 of the constitution, is significant in the current context. In 2005, Bihar governor Buta Singh dissolved the state assembly because he thought that political parties sought to cobble up a majority through unethical means, which included horse-trading. As the matter reached the apex court, it held that the governor had no such powers, and the dissolution was against the democratic principles of majority rule. “It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the state into another election,” it observed. In a nutshell, the judgement concluded that post-elections every avenue to install a popular government must be explored. Given the contradictions, presidents officially seek views from legal experts. Mukherjee appointed former law secretary, TK Vishwanathan, as his special advisor on legal and constitutional matters. Obviously, he wants to be prepared in case the 2014 elections lead to complications. Earlier, Kalam consulted the late Justice JS Verma and former attorney general, K Parasaran. As Dave points out, there may be precedents but electoral politics throws up new realities and challenges. However, no one is better suited to meet them than Mukherjee, who has an encyclopaedic knowledge of history, fanatical regard for constitution, political experience and creative thinking. IL May 15, 2014

PROBE/ kerala /court verdicts

TRAVESTY

Anthony Lawrence

May 15, 2014

ustice delayed is justice denied. And justice delayed for decades is akin to no justice at all. Several cases in Kerala fall under the latter category; the victims or their families have fought in vain for 17 to 22 years in the courts of law. In cases, such as Abhaya murder (22 years), Kozhikode ice cream parlor (17 years), Suryanelli (18 years) and Chekannur Moulavi (21 years), the legal battle continues. But in the Vithura case (19 years), the victim gave up her fight. The reasons for the delay included absence of witnesses, the judicial process that rightly allows series of appeals, biased and incompetent investigating authorities, and the inability of a few judges to understand the issues. Some of these high-profile cases involved powerful national and local politicians. However, the will of the victims and powerful supporters have moved many of these cases, albeit step-by-step, towards fair outcomes. Havua Umma, widow of Chekannur Moulavi, believes her husband was murdered because, as a religious leader, he tried to liberate people from fanaticism, angering the Muslim leaders. She alleges that Kanthapuram Aboobacker Musalyar, Sunni leader and general secretary of All-India Jam’iyyathul Ulema, was the mastermind. She has presented 10 audio cassettes, in which Musalyar called for Moulavi’s death, as evidence. Although a lower court named Musalyar as the 10th accused, the higher courts felt the evidence against him wasn’t enough. The proof in criminal cases, especially those related to murder, need to be substantial, and this helped Musalyar , who was listed among 500 influential Muslims in 2009 and 2011 in a listing titled The Muslim 500, by the Royal Islamic Strategic Studies Center, Jordan. Only one of the other nine accused was indicted. The others were let off because of lack of witnesses who, alleged Umma, were whisked away to the Middle East. In the Vithura case, a girl charged that she was forced into the flesh trade at the age of 16 after she was lured by a lucrative job, and raped by several persons, including actor Jagathy Sreekumar. Worn down by appeal after appeal in different courts, she urged the Kerala High Court to club all the 22 pending cases. The court refused; later, the lower trial court declared the victim as hostile, and acquitted the accused in 15 cases. Dejected, the Vithura victim vowed she would never approach another court in her life, even if it meant her death. She wrote a letter to Kerala’s chief minister about her lack of faith in the judiciary, and wished to be left alone.

in high-profile cases in Kerala, victims have waited for decades for a fair trial because of lack of witnesses and incompetent investigations By TK Devasia

OF JUSTICE May 15, 2014

PROBE/ kerala /court verdicts

“CBI Deputy Superintendent Varghese Thomas concluded that Sister Abhaya was murdered. He was not allowed to pursue the case. Disgusted with pressures from his superiors, he quit CBI.” — JOMON PUTHENPURACKKAL,

Convenor, Sister Abhaya Action Council

FATHER JOSE POOTHRUKAYIL

FATHER THOMAS KOTTOOR

SISTER SEPHY

CBI arrested Fr Jose Poothrukayil, Fr Thomas Kottoor and Sister Sephy only after the court criticized the CBI in the Abhaya murder case.

There is merit in the argument that in both the cases, the courts gave the judgments based upon the evidence, or lack of it, because the accused too have certain rights. The allegations against the accused have to be proved conclusively, they have the right to appeal against judgments, and the absence of witnesses could be for legitimate reasons. But what if the investigators botch up cases deliberately to protect powerful persons, and judges fail to understand the issues involved? Take the case of Sister Abhaya’s murder. The nun was allegedly murdered because she

May 15, 2014

witnessed sexual acts between two priests and another nun at her Kottayam convent on February 27, 1992, when she woke up early to study for an exam. Initially, the state’s crime branch concluded that it was a case of suicide. The investigators apparently destroyed evidence that could have proved it as homicide. The Central Bureau of Investigation (CBI) alleged that the former crime branch superintendent, KT Maichel, was responsible for the destruction of evidence. The convenor of Sister Abhaya Action Council, Jomon Puthenpurackkal says: “Maichel blamed former CBI deputy superintendent, Varghese Thomas for the destruction of evidence. But it was Varghese who concluded that Sister Abhaya was murdered. He was not allowed to pursue the investigation. Disgusted with pressures from superiors, he quit CBI nine years before retirement.” Logically, the CBI was also involved in the cover-up. The agency took six years to disprove the crime branch’s suicide theory. But it still tried to close the case without tracing the accused. It was only after court’s criticism that the CBI arrested two Knanaya Catholic priests, Thomas Kottoor and Jose Poothrukayil, and a nun, Sister Sephy. Puthenpurackkal believes that justice in the Abhaya case cannot be done unless the investigators, who sabotaged the evidence, are brought to book. The Kerala High Court has accepted his petition to pursue this, and directed the CBI to probe the role played by nine persons, including Maichel, a former CBI superintendent, sub-divisional magistrate, and the chief chemical examiner and her assistant in the cover-up.

he worst role played by the investigators was in cases that involved known politicians, like Rajya Sabha Deputy Chairman PJ Kurien and Kerala’s Industry Minister PK Kunhalikutty. In the Suryanelli case, Kurien was among the 40-plus people accused of rape. But the state police dismissed the charges against the senior Congressman. A special investigation team exonerated Kurien, based on travel logs maintained by his driver. The SIT arraigned 42 accused on the basis of the vic-

tim’s statement, but refused to believe her testimony on Kurien. An SIT member confessed that Kurien was saved by Siby Mathew, the head of the team, who was possibly influenced by the then ruling state government.

“In the Suryanelli case, Kurien was among the 40-plus people accused of rape.The SIT arraigned 42 accused on the basis of the victim’s statement but did not believe her testimony on the Rajya Sabha deputy chairman.” — PJ KURIEN

enior advocate M Jayashankar says the division bench of the Kerala High Court “took a strong stance against Kurien during the initial hearings, but changed track after it became clear that he would be inducted in the central cabinet. The bench declared the victim as a child prostitute and let off the convicts. This enabled Kurien to get clean chit from the high court and Supreme Court.” However, when the Suryanelli matter went to the Supreme Court, it was kept pending there for over eight years. Only after the brutal Delhi rape case recently did the Suryanelli victim remind the apex court about her appeal. The latter’s special bench, which was formed to hear sexual abuse cases, quashed the high court’s order, which had acquitted 34 of the 35 accused. The apex court also ordered a re-hearing of the case. A new division bench of the high court sentenced the main accused to life sentence, and 24 others to imprisonment between 4 and 13 years. However, the victim, who is 36 now, wants a verdict against Kurien. She has filed an appeal for a review of these judgments. The petition is under the consideration of a division bench. The victim’s mother is scared for her. “My daughter has suffered a lot. She was implicated in a false theft case at her workplace, denied the right to worship at the church and ostracized. We don’t know what will happen if we continue the fight,” she says. The Kozhikode sex scandal case, involving Kunhalikutty, was kept alive by veteran Left leader VS Achuthanandan. Aided by senior lawyers, the nonagenarian politician waged a relentless battle to take on the

V ACHUTHANANDAN

PK KUNHALIKUTTY

Left leader VS Achuthanandan waged a battle against Industry Minister PK Kunhalikutty in the Kozhikode sex scandal, where flesh trade thrived under the cover of an ice cream parlor.

industries minister, who allegedly tried to influence justice in the case where flesh trade thrived under the cover of an ice cream parlor in Kozhikode. Although the Kerala High Court and Supreme Court gave a clean chit to Kunhalikutty, Achuthanandan asked the apex court to order a CBI probe. The attempt by Kunhalikutty to deflect justice was revealed by his co-brother, KA Rauf, who claimed that he handled the sabotage operation on the former’s behalf. The SIT, which was constituted to probe Rauf ’s revelations, interviewed several witnesses but found insufficient evidence to chargesheet Kunhalikutty. It’s an uphill road to justice, indeed. IL May 15, 2014

AVIATION/ kingfisher airlines

Photos:Rajeev Tyagi

KING OF BAD

TIMES 36

May 15, 2014

Vijay Mallya continues to live flamboyantly and spends huge sums to buy cricketer Yuvraj Singh. But his airline remains grounded, lenders are agitated and employees are left without salaries. By Rajendra Bajpai

ingfisher Airlines has timely died an untimely death, but has left behind a clutch of empty-handed creditors, thousands of hapless investors and hundreds of cursing employees, who have not received salaries for over 18 months. Running an airline is a risky venture, where success is not guaranteed, and failure is the most likely outcome. But Kingfisher did everything to ensure its own demise. It borrowed heavily and did not create many tangible assets. It did not pay oil companies, defaulted in payments to aircraft lessors, and collected taxes from passengers but did not deposit the money with the government. The airline owes its creditors over `7,000 crore. The lenders have little hope of recovering this amount and SBICAP Trustee Company, a subsidiary of State Bank of India, has decided to sell the Kingfisher brand, which was pledged to the lenders.

NO TAKERS Vijay Mallya, the high-profile, jet-setting and flamboyant promoter of Kingfisher, also presides over the cash-rich United Breweries and United Spirits. His brewery sells Kingfisher beer, which is a separate trademark. So, the buyer of Kingfisher Airlines will not gain access to the beer brand or leverage on the latter’s reputation. Trade-marks on sale currently include Fly Kingfisher, Flying Models, Funliner, Fly the Good Times, Kingfisher and Flying Bird Device. The question that begs an answer is: what’s the worth of these brands, since the

airline has not flown for over 18 months? What will anyone do with the brand name? None of the existing airlines are interested in Kingfisher. “Who would want to marry a woman who is in the oxygen tent?” asks the chairman of a private airline. “The beer brand may have value but the airline has none,” he clarifies. Mahua Roy Chowdhury, an intellectual property rights expert and managing partner of solicitors Solomon and Roy, says that airlines like GoAir, SpiceJet, Jet Airways and Indigo will not be interested in Kingfisher. Except Indigo, the other airlines are struggling anyway, and would want to focus on sorting out their own financial and operational problems. Without regulatory licenses brands have little value, adds Chowdhury. The fact is that Kingfisher has lost flying licenses and parking slots at various airports. V Murlidharan, CEO of SBICAP, refuses to hazard a guess on the sale of the brand, and a spokesman of the airline declined to speak to India Legal, saying several cases were pending in court and the matter was sub-judice. Rashesh Shah of ICICI Securities agrees that the Kingfisher brand would have had some value if the airline had been still flying. “Nobody will be easily willing to buy the brand and the seller certainly will not be able to dictate the price,” he explains. The only window of opportunity, according to Chowdhury, is if a foreign airline, which wants to set up domestic operations, gets excited about the Kingfisher brand. In such a case, the foreigner can save money on building a local brand.

POINT OF NO RETURN The employees of the grounded airline haven’t received salaries for the past 18 months

Legally grounded Airports Authority of India forced Kingfisher to operate on cash-and-carry basis because of past dues Income Tax Department said the airline hadn’t paid service tax as well as TDS on salaries SBI declared Kingfisher as bad debt, and refused to give further loans Aircraft lessors sued the airline for non-payment of lease rentals Petroleum firms threatened to stop supply of aviation fuel several times Employees filed cases against the airline for non-payment of salaries

May 15, 2014

AVIATION/ kingfisher airlines

Who’s responsible for the crash? Directorate

General of Civil Aviation (DGCA) should have taken stricter action against Kingfisher, and earlier Securities and Exchange Board of India (SEBI) could have intervened in the interest of small shareholders, as the airline is listed on the exchanges Ministry of Corporate Affairs should have questioned the management on issues of corporate governance and responsibilities Tax authorities could have acted earlier and put more pressure on Mallya, the promoter to recover their dues Petroleum firms should have red-flagged the financial mess in Kingfisher Lenders should not have agreed to corporate debt restructuring; they should have monitored it better to make sure the airline did not crash land

When Kingfisher was flying high, consultancy firm Grant Thornton valued the brand at $550 million. It was on this basis that Mallya could raise cash. Now, Thornton is not willing to discuss why it had valued the brand at that amount, or what the current valuation is. Several analysts have come down heavily on the way Kingfisher was managed, and dub it a prime example of reckless profligacy.

WRONG PRIORITIES Vijay Mallya paid `14 crore to buy Yuvraj Singh (center) for Royal Challengers Bangalore

OPULENCE THAT INSULTS Ironically, while the airline remains grounded, Mallya continues to fly high. The company’s employees find his flamboyance extremely jarring. The beer baron owns a personal

jet, a yacht, an IPL cricket team and a Formula 1 race team. He recently paid `14 crore to buy cricketer Yuvraj Singh for his IPL team, Royal Challengers Bangalore. The employees may be in trouble but Mallya lives it up, flying his friends to cricket matches in South Africa and West Indies. Jai Prakash Sharma, a senior professor in Delhi School of Economics, who examined the fraud committed by founders of Satyam Computers, has trained his eyes on Kingfisher. Sharma feels Kingfisher was the fastest-growing airline and regarded as firstclass, but its fall was sudden. In a public seminar, he had predicted that the airline could turn out to be the biggest fraud in corporate India’s history. Mallya draws his political clout from his membership of the Rajya Sabha. In its report, equitymaster.com writes: “Mallya… made no attempt to stem the steady decline in the company’s fortunes. First, the jet fuel suppliers stopped giving the airline fuel credit. The unpaid fees to airport operators and other agencies deprived it of licenses. And finally, pilots and cabin crew were forced to leave the cash-strapped airline for non-payment of salaries.” It added that the company had willfully defaulted on loans but the government took no action. “But instead of holding the promoter responsible, the aviation ministry was at one point considering bailing out the defunct airline,” comments equitymaster.com. “Lack of bankruptcy laws left little recourse for the bankers, who until recently could not even seize the airlines’ immovable properties,” informs the portal. THE NOOSE TIGHTENS State Bank of India (SBI), the main lender to Kingfisher, has belatedly decided to declare Mallya a willful defaulter. If that happens, the beer baron and his other companies might find it difficult to get loans in future. SBI has asked consultancy firm, Ernst & Young, to do a forensic audit of Kingfisher’s books. Latest reports suggest that United Spirits, the cash cow of the Mallya Group, might finally slip out of promoter’s hands. It’s unclear why he is allowing it to be taken over by Diageo plc. Is Mallya shedding responsibilities or monetizing his assets? IL

Courtesy BCCI

May 15, 2014

SPECIAL STORY/ hawala operations

THE TWISTED TRAIL all you need to deal in this illegal parallel economy is a `10 note, a trustworthy contact, and enough guts to carry millions of rupees By Alam Srinivas

NEW FACE OF HAWALA The operators are now mostly suave, rich, educated and jetsetting businessmen as well as professionals

May 15, 2014

HE common image of a hawala trader, who transports black money from one destination to another, both within India and abroad, is that of a goon. He belongs to a mafia gang and, therefore, has the feel and look of an underworld criminal. He may be one of those rustic real estate brokers who cannot speak a sentence without a few abuses. He can be a trader, who is based in the narrow bylanes of Delhiâ&#x20AC;&#x2122;s Chandni Chowk, Karol Bagh and Connaught Place. All of the above is true. Most hawala dealers in the capital are located in Chandni Chowkâ&#x20AC;&#x2122;s Ballimaran, peripheral areas like Rohini, and little-known commercial centers in West Delhi. They are generally people dealing in huge amounts of cash. They run jewelry shops, huge restaurants, wholesale trade in paper and unofficial lending agencies. They are faceless; you may never meet them and they deal through human couriers and middlemen. But there is the other side of this illicit business. In the post-reforms era, several suave entrepreneurs have gatecrashed the party. They are dressed in black and grey suits; they talk in fluent English; and they crisscross

OF BIG BLACK BUCKS the globe to pursue their legitimate businesses. Most of them have swanky, glass-paneled and wooden-floor offices in commercial centers. They are foreign exchange traders, chartered accountants and engaged in financial services. They are well-versed with financial jargon—margins, hedging, long- and short-selling. They meet you brazenly and regularly monitor the legal money flows across countries through the banking channels. But because they spotted huge opportunities in hawala trade, especially over the past decade or so, they entered the shadowy world of black economy.

n the past two decades, hawala has been used in real estate deals, where 50-70 percent of the money is paid in cash, gold, drugs and other smuggling; where proceeds across the country need to reach the mafia gangs; and bribes, where sums have to reach individuals based elsewhere. Hawala is the safest illegal way in which elections are funded. Almost 99 percent of the expenditure by political parties and candidates in any election are unofficial and, therefore, cash needs to be transferred within and across constituencies. Hawala has existed in India for centuries. It originated as a safe and secure system to transfer money across cities, and across borders. Most businessmen were scared to carry cash or bullion to make payments. They needed another way, which was both efficient and trustworthy. Hawala derived from an Arabic word, hewala, which literally meant transfer. It was common for money transfers in the Middle East, North Africa and Horn of Africa. In India, hawala evolved as the hundi system. In their book, The Concise Oxford History of Indian Business, authors Dwijendra Tripathi and Jyoti Jumani state that it was “a well-entrenched credit institution in vogue all over the country” in the 16th century. “Hundi was a sort of bill of exchange drawn by a party on his agent or correspondent elsewhere asking the latter to pay to the drawee a specified amount the equivalent of which the drawer had received. This precluded cash movement…” As one can imagine, it was the official way for payments in the days when banks and modern financial instruments were unknown commodities. A hundi, or a piece of paper, was enough to ensure payments. The system was absolutely trustworthy. Over the next few centuries, as the British introduced modern bank-

OLD FACE OF HAWALA The trade was earlier dominated by rustic goons, hardcore criminals from the underworld or abusive agents from real estate

Illustrations: Anthony Lawrence

May 15, 2014

SPECIAL STORY/ hawala operations

ing, hundi was replaced by the globally-recognized hawala. Smugglers and narcotics and criminal gangs used it. The sale proceeds from their activities were transferred through hawala. The system had near-zero percent inefficiencies (it can be dubbed as the original six sigma). You paid money to a trader in Delhi. Armed with a code, a person in Timbuktu could draw the same amount from the dealer based there. As the Interpol, the global investigating agency, defined it: It was “money transfer without money movement”.

Money changes hands X

ow does the modern system operate? What is the modus operandi of a hawala trader these days? The first step is to find an individual, who can put you in touch with the dealer. Normally, such middlemen are around you; they can be the chartered accountant, who files your tax returns, the financial planner who advises on your investments, or the wealth manager, who basically handles the assets of high net worth persons. “These middlemen are professionals in every sense. They can advise on taxes, investments and wealth creation. But they are experts in how to bundle the lakhs of rupees in tight packages of `500,000 or `1,000,000 each, which are usually wrapped in a newspaper. If you pick up the package, you couldn’t guess the amount,” says a Mumbaibased businessman, who has dealt with them. Obviously, they know several hawala traders in their cities. The next step is the visit to the hawala operator. It is advisable to take the middleman with you to protect the money, feel more secure, and ensure the meeting takes place comfortably. It can be unnerving if you have to park the car on an empty road in Delhi’s Rohini, or stand alone in a narrow, crowded and bustling Chandni Chowk’s street with

A hawala trader could be a chartered accountant, who files your tax returns. A professional in every sense, he could be donning an Armani, exuding class and taste. 42

May 15, 2014

the money. All that you think of, rightly or wrongly, is whether you have been set up. If your contact has put you in touch with an old-timer, there is never a face-to-face interaction. You just wait in the car, or on the street, till you notice a thin, bedraggled and almost-starving teenager with a back pack, aimlessly ambling on the road. Your mobile will ring as soon as he passes you. It is the trader, who asks you to give the money to the kid. You hesitate for a while, and then give in. In case you have come to pick up money, the back pack will be full of cash bundles. If you are lucky, the middleman may know the suave operator. In such a case, you do get to visit the hawala man. You walk into a fancy office, whose nameplate will read ABC Forex Traders or XYZ Financial Services. You enter a huge cabin unlike the corner rooms in large companies, and shake hands with someone dressed impeccably, may be in an Armani. Everything in the room will smack of class and taste, including the crockery to serve tea or coffee.

MODUS OPERANDI

without movement M

3b 3a

As the hawala man’s colleague counts the money in an adjoining room, the conversation veers around to politics, who will win in the forthcoming elections, and the implications of the Supreme Court’s decision on Section 377 of the Indian Penal Code. In case the trader is a real estate player, you can discuss the future of DLF (which had dealings with Sonia Gandhi’s son-in-law, Robert Vadra) in case BJP comes to power.

hether it is dealings with oldtimers or new-age operators, remember to carry `10 note if you have gone to get cash transferred to another location. This is crucial because the serial number on it acts as the code, which you give to the operator. He takes it down, and you stash the note in a safe place. Later, you tell the person, who has to receive the cash, the serial number. Only if he can repeat it can he get the cash in whichever city he is located. Obviously, there is no physical transfer of the cash. Hawala operators in various cities,

Customer A meets hawala broker X and hands over the money (red arrows) for recipient B in another city; tells a password (blue arrow). X calls up another broker M in the B’s city; tells him the password. B who knows the password (2a) from A meets M and tells him the same (3a). If the password is correct, M hands over the money (3b) to B. X will settle the debt to M at a later date.

both in India and abroad, routinely collect black money. When the money has to be paid elsewhere, they simply call up their colleagues in the city, who pay off from the cash that he has collected. The dealers usually store the cash in vaults, godowns and warehouses. The smarter ones rent lockers in banks, whose managers they know, and stash the notes in them. A part physical transfer of the cash takes place when the money has to be collected from a smaller town, where there are no operators. Thus, the money needs to be brought to the dealer’s base, which may be a few hundred kilometers away. The transporter is an individual dressed in a specially designed garment, which can easily hide the cash. He or she travels in a bus, taxi or train. Flights are avoided for obvious reasons. The usual commission for hawala transfer is 0.5 percent, i.e. `500 per `100,000. However, if there is human transportation involved, as explained earlier, there is a premium involved, which will depend on the distance that the cash has to be carried. The mechanism is foolproof; the margin of error in the amount or money not reaching the recipient is possibly 0.001 percent. It is like the Mumbai’s dabba system, which was studied by several global B-schools. Well, a Delhi-based individual did face a problem, when he had to collect `20 lakh in two equal instalments. He says: “When I got the back pack from a kid, I found there were nine bundles of `1 lakh each, instead of 10. I frantically called the sender, who got in touch with the operator. After a few minutes, I was told I should accept the nine bundles, and next time I would receive 11 bundles, instead of 10. It is as safe as that.” IL May 15, 2014

PROPERTY/ noida scam /supertech Ramesh Menon

LAND OF NO

RETURN when the allahabad high court asked a top builder to demolish its two residential towers, it signaled that illegal buildings will not be spared just because they were built and sold By Rakesh Bhatnagar

March 15, 2014

udicial activism in land deals has provided succor to many. As unscrupulous property dealers collude with government authorities to violate building laws with impunity, courts have stepped in and given much-needed relief to the aggrieved parties. The latest judgment in this regard was on April 11 this year when the Allahabad High Court directed builder Supertech Limited to demolish two 40-storey residential towers, Apex and Ceyane, in its Sector 93-A, Noida housing project. The two towers, part of Supertech’s Emerald Court project, comprised a total of 857 apartments, of which about 600 were sold—at a starting price of `1.2 crore each. The total investment in the two towers was to the tune of `400 crore. The verdict minced no words: “It has repeatedly come to notice that builders, with officers of development authorities, flout every rule, including building ones.” A bench comprising Justices VK Shukla and Suneet Kumar ordered the demolition within four months. The order also said money should be refunded to all who had invested into the project, “with 14 percent interest compounded annually”. But this seems easier said than done. On April 15, Supertech called off a press conference and virtually stonewalled buyers’ demands for a refund, even as Noida Authority sealed the project site, bringing construction to a halt. The 38-page verdict exposed the connivance of the Noida Authority, the state government and various agencies entrusted to help real estate developers execute their projects with due diligence. The petitioners, Emerald Court Owner Resident Welfare Association, had filed a special leave petition in December 2012 against the builder for illegal construction. They wanted the project to be reduced from 40 floors to 24 floors, and the height from 121 meters to 66 meters. The lawsuit said the mandatory distance of 16 meters between towers had not been maintained and they had been deprived of car parking space, a requirement under National Building Code (NBC) of India

2005. The observations were shocking. It was a tough fight for the residents as they fought against an aggressive builder, an indifferent Samajwadi Party in UP and a corrupt Noida administration. They faced stiff resistance in maintaining the lawsuit as the builder and Noida Authority sought its dismissal, saying the petitioner ought to have sought remedy before the CEO, Noida. They justified the alleged illegalities under the garb of a revised building plan, even though the project flouted the NBC and fire-safety guidelines. BLATANT COLLUSION These irregularities from a builder, who claimed to have converted more than 33 million square feet of residential and commercial entities across India, was unexpected. Supertech sought approval from Noida administration for a third revised project plan, and this was sanctioned on November 26, 2009. It purchased additional floor area ratio (FAR) and got the map revised, on March 2, 2012. This permitted the builder to add 16 floors to both towers. Contesting the lawsuit of the petitioners, the builder said that while the two towers were approved on November 26, 2009, the RWA had filed its lawsuit after three years, in December 2012. It also argued that the multi-storeyed residential buildings were in an “advanced stage of construction and more than 21 floors have been constructed in the two towers and about 600 flats already sold to the prospective buyers.” The HC slammed the authorities, saying Supertech, the UP government and the NOIDA management were “hand in glove, shielding each other against blatant violation of building regulations.” It was due to this connivance that the Noida management did not move beyond simply issuing a notice to Supertech. The court also said it was not a case where the developer had violated on its

The judges said UP government, Supertech and Noida officials were “hand in glove, shielding each other against blatant violations of building regulations.” May 15, 2014

PROPERTY/ noida scam /supertech

ELUSIVE HOMES Buyers hold protest at the construction site of Supertech’s Emerald Court project in Noida

own the common area or facilities under the sanctioned plan. Instead, “It is a case of violation of building regulations by Noida Authority in sanctioning the map, which has adversely affected the rights of apartment owners.” The HC said this layout plan was in violation of mandatory spaces between building blocks and clear space. But for these violations, the HC said, the additional FAR purchased by Supertech in 2011 could not have been executed on the ground or at the towers’ building site. OTHER IRREGULARITIES Refusing to buy the builder’s plea that demolition at this stage would cause tremendous loss to it and investors, the HC followed a Supreme Court (SC) judgment in 1999, wherein it had sanctioned the demolition of an underground air-conditioned market complex in Lucknow, as it was illegal. The

The high court said there should be no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their subservient. 46

May 15, 2014

HC further said that there should be “no judicial tolerance of illegal and unauthorized constructions by those who treat the law to be their subservient. Those indulging in such activities will not be spared.” The court noted with anguish that builders, by “joining hands with development authorities, openly flout every conceivable rule, including building regulations. The builder is always under the impression that once the frame of the building is illegally constructed, then the Court can be persuaded to take a sympathetic view and permit the construction, even though it’s in total breach of legal provision”. The court also noted the skyrocketing prices due to scarcity of land for group housing. At the time of launch of the Emerald project in 2009, the builder had charged `2,900 per sq feet; the prevailing rate today is between `5,000-9,000 per sq feet. “The time has come, when everyone should realize that rule of law is not a purchasable commodity and illegalities will not be tolerated,” the HC order added. It may be recalled that a couple of years ago, the SC had ordered the pulling down of two floors of the plush White House apartments on Bhagwan Das Road near the Supreme Court complex in New Delhi. The SC had also allowed demolition of a commercial complex in Palm Towers Cooperative Housing Society in Navi Mumbai, Maharashtra. The judges had lambasted all the ruling political parties for encouraging unauthorized constructions and allowing illegal occupation of land by the unscrupulous developers, builders and affluent people. It may be pertinent to point out here that Delhi-NCR residential real estate market alone has an estimated 1.4 lakh units of unsold inventory. It amounts to approximately 27 percent of total units under construction. Half of the under-construction units fall in Noida and Greater Noida, followed by Gurgaon. Significantly, a recent report said that about 66 percent of unsold units are in Noida and Greater Noida, where a large number of housing and commercial projects may face the bulldozer in view of the revised land acquisition law. Land may be a good investment, but one that investors need to tread into carefully. IL

STATES/ column/arunachal/election fraud

The Black Hole how a candidate was eliminated from an election through a forgery

ndia has been internationally praised for conducting the world’s most complicated and largest election. While the Election Commission of India deserves kudos for this massive exercise, there are shortcomings, such as its conspicuous inability to deal with a shocking case of electoral fraud in which a candidate’s nomination was fraudulently withdrawn. Then his opponent was immediately declared elected unopposed! This is an outrageous story—a scandalous display of how fraud and corruption can destroy the democratic fabric and give the otherwise intrepid and fair Election Commission a bad name. Atum Welly, the former health and family welfare minister in the previous Congress-led Nabam Tuki government in Arunachal Pradesh was busy organizing his assembly election campaign, camping at Itanagar, the state capital, on March 26, 2014. His phone rang. At the other end, an angry supporter screamed asking why he had precipitously withdrawn—in writing—from the election fray. Welly was shocked. He could not believe his ears. Then news came that angry supporters had even stoned his house as they suspected he had been bought over by his opponent. Incidentally, 26th March was the last date for withdrawing nominations for the state’s assembly polls. Obviously, somebody had forged his signature on the official withdrawal papers. A desperate Welly called up his brother, Utung Welly, who was also his election agent. He said he was not aware of what had transpired. And neither was Welly’s proposer, Ravindra Tana. Both were campaigning along with Welly’s wife, Akani. The constituency is huge—spread out at a

Ramesh Menon, Managing Editor, India Legal

point-to-point distance of around 200 kilometers and has about 8,000 voters. Welly immediately filed a FIR by fax and lodged a complaint with the Election Commission that his so-called “withdrawal” should not be accepted by the electoral officer as his signature had been forged. The FIR was registered but no action was taken. Welly then requested the superintendent of police of East Kameng to go in for

When the assembly term expired in February 2014, Welly quit the Congress and moved to the BJP which gladly offered him a ticket. Following his fraudulent “withdrawal”, his opponent, the former deputy chief minister, Kameng Dolo of the Congress was declared elected unopposed by the Election Commission. Welly soon realized that he was not the only one. A similar case played out in the Anil Shakya case of BJP candidate Nabam Tade in the 15th Sagalee assembly constituency. As many as 11 MLAs from Congress have been elected unopposed which includes the former chief minister and other ministers. This can happen only in Arunachal Pradesh where there are no political loyalties. Horse trading is very common and is not looked down upon. There have been instances of the entire party switching loyalties in the assembly. As all his pleas in the state fell on deaf ears, Welly then flew to Delhi to meet Ashish Srivastava, the director general, grievances, of the Election Commission of India. Here his hopes were dashed again. Srivastava told him that after the Election Commission FIGHTING FOR JUSTICE had issued a certificate to a candidate sayWelly after lodging his complaint with EC ing he was elected; it had no authority to take it back or even declare it null and void. forensic tests to analyse the signature. The The only recourse Welly had, he said, was police ignored this request as well. There to file an election petition in the court. seemed to be a script playing out and Welly Action could not be taken against returnsuspects a lot of money must have changed ing officer Tarin Dakpe as he had resigned hands. “It was clearly against the objective soon after, Welly was told. and spirit of democracy,” he says. Welly has now filed an election petition Welly is angry and frustrated that due in the Guwahati High Court on April 11, process was not followed. “The returning 2014 saying that his withdrawal from the officer did not follow the rules of conduct of assembly election was illegal as his signaelections while accepting the purported ture had been forged and so it must be withdrawal of candidature and violated the declared null and void and the election mandate of the relevant rules and the conducted again. He is waiting for the Representation of Peoples Act 1951, and wheels of justice to now move and restore Conduct of Election Rules 1961.” his faith in democracy and justice. IL May 15, 2014

STATES/ kerala /chandy in the dock

PAYBACK TIME Kerala CM Oommen Chandy (L), facing court strictures, seen meeting the MoS for Railways, KH Muniyappa

PIB

WHEEL COMES

FULL CIRCLE a high court stricture may just trip cm oommen chandy. he was taken to task because of the involvement of his personal staff in criminal cases By Jacob George 48

May 15, 2014

erala Chief Minister Oommen Chandy seems to be getting a dose of his own medicine. Way back in 1977, AK Antony, the then Kerala Pradesh Congress Committee president, and Chandy, his lieutenant, had shrewdly used high court strictures to corner former chief minister K Karunakaran and got him to resign. The same tactic was used by the duo to unseat him again in 1995.

Today, it is Chandy’s turn to be in the dock. But the moot question is, whether he will resign the way Karunakaran was made to? On March 28, 2014, Justice Haroon Al Rasheed of the Kerala High Court slammed Chandy for failing to check unlawful activities in his office, which led to a land scam. The case has now been given to the CBI. This is the last thing Chandy and his Congress-led United Democratic Front (UDF) need during the ongoing Lok Sabha elections. If Chandy has to survive, the UDF will need to get more than 12 seats out of the 20 in the national elections. If it is below 10, it will be a little difficult for him to continue. But he is bold enough to say that the election will be a mandate for his government. “Whether it will be a gain or loss, I will take the responsibility,” he maintains. It remains to be seen if the high court stricture will impact him. GROUND FOR REMOVAL The judgment criticized Chandy for not being “prudent and responsible” in appointing persons of integrity in his office. The court also mentioned the infamous solar panel case in which a woman, Saritha S Nair, cheated several people with the help of officials in Chandy’s office. One of them was arrested and another, suspended. A high-profile advisor of the CM also resigned. In the present case, a land scam was allegedly masterminded by Salim Raj, a gunman of Chandy over the last seven years. The illegal activities of Salim Raj came to light when a group of people in Thiruvananthapuram complained that he and his accomplices had tried to grab 45 acres of their land, worth `400 crore, using influence with the revenue department. Another case was filed against Raj by a family in Ernakulam for allegedly grabbing their property. Raj, a constable in Kerala Police, became so powerful that even the state’s director general of police feared him. He acted as an extra-constitutional authority. “I was summoned by Raj to the VVIP suite, generally reserved for state ministers in a guest house in Trivandrum and threatened with serious consequences if we did not give up the land,” says Balu Subramaniam, a complainant.

The name of the CM’s gunman was not included the land grab first information report (FIR ) despite one of the petitioners, Shariffa of Ernakulam, pointing him out as the mastermind. He was one of the three accused in an earlier solar panel case. Three members of Chandy’s personal staff—Raj, Tenny Jopan and Jikumon Jacob—were asked to quit because of the links in this multi-crore scam. But except for Jopan, who was arrested, the local police did not bother the other two.

RETURN OF THE PAST On two occasions, in 1977 and 1995, Chandy and AK Antony (R) forced K Karunakaran (L) to resign on grounds of probity

DAMAGE CONTROL While the opposition came down heavily on the CM, asking him to step down, Congress leaders, in turn, attacked Justice Rasheed, accusing him of political intentions. Chandy argued that the court hadn’t heard his version before giving the judgment. “I am sure I will get a favorable judgment from the people’s court,” he said. However, on April 1, the advocate-general, on behalf of a desperate state government, appealed in the division bench for removal of the 70th paragraph of the verdict, which had scathing comments on the CM’s office.

It looks like the Machiavellian politics of 1977 and 1995 is being repeated. But who will challenge the adroit Chandy, known for his unique survival instincts? May 15, 2014

STATES/ kerala /chandy in the dock

Kerala’s political games SOLAR PANEL SCAM, 2013: Saritha S Nair cheated several people with the help of officials in Chief Minister Oommen Chandy’s office LAND SCAM, 2013: Salim Raj, a gunman of Chandy, tried to grab 45 acres of land in Thiruvananthapuram using his influence RAJAN CASE, 1976: Torture and subsequent death of P Rajan, a final year student of Regional Engineering College, Kozhikode, while K Karunakran was CM. Karunakaran had to quit ISRO CASE1994: Raman Srivastava, an IG close to Karunakaran was, falsely implicated in the ISRO espionage case. Once again, Karunakaran had to quit as CM

The verdict read: “The alleged involvement of members of the personal staff of the chief minister’s office in criminal acts has come to the attention of this court at multiple occasions. The above incidents show that the authorities at the helm of affairs of the administration of the state have not been prudent or responsible in appointing personal staff with integrity and character. The chief minister’s office should be a model institution serving the people of the state. Prima facie evidence of the presence of unscrupulous elements among the personal staff in the chief minister’s office and the associated criminal activities in these cases call for a thorough investigation into the crime.” Only the last sentence was stayed, while the rest was retained by the high court. SORDID PAST The big question facing Chandy and the Congress is, whether he will have to resign. After all, Karunakaran was forced to resign on two occasions when the high court came out with strong sentences: first, in the Rajan case in 1978 and then, in the ISRO espionage case in 1995. In both incidents, the mighty Antony faction led the move against Karunakaran. Fortunately for Chandy, there is no strong political force to oust him. Let’s look back at the two cases which made Karunakaran quit. The first dealt with P Rajan, a final-year student of Regional Engineering College, Kozhikode. On March 1, 1976, during the Emergency, he and another student, Joseph Chali, were whisked away from their hostel. Rajan’s father, TV Eachara Warrior, a college professor, filed a habeas

May 15, 2014

WILY CHARM Saritha S Nair cheated several people in the solar panel case with the help of officials in Chandy’s office

corpus petition in the Ernakulam High Court when the Emergency was lifted. The respondents were Karunakaran, the home secretary, the inspector general of police (IGP) and other senior police officials. Justice P Subramaniam Potti, who heard the case, observed: “Of course, it is open to the respondents to show that Rajan is no longer in such custody by reason of his having been released, or he having absconded or having died in police custody.” At a subsequent hearing in the case, which made legal history in Kerala, Karunakaran, IGP VN Rajan and special secretary to the state government, S Narayanaswamy, told the high court that Rajan had died in “unlawful police custody” as a result of continuous police torture. Karunakaran, meanwhile, was sworn in as chief minister for the first time on March 25, 1977, when the Congress-led UDF won the elections. But within a month, on April 25, he had to resign due to the Rajan case. Karunakaran had to resign again on March 16, 1995, on account of an observation of the high court in the ISRO espionage case. It looks like the Machiavellian politics of 1977 and 1995 is being repeated. But who will challenge the adroit Chandy, known for his unique survival instincts? He just may sail through. IL

CASE STUDY/ drug abuse/mississippi judgment

STILLBORN a us court acquitted a teenager charged with murder for “killing” the child in her womb due to cocaine consumption. the case polarized women activists and groups fighting for unborn’s rights. By Nina Martin

Mississippi judge has thrown out murder charges against a young woman in the 2006 death of her stillborn child, a significant setback for prosecutors in a controversial case that has been closely followed both by women’s rights groups and those interested in establishing rights for the unborn. Rennie Gibbs, who was 16 when she gave birth to her stillborn daughter Samiya, had been indicted for “depraved heart murder” after traces of a cocaine byproduct were found in the baby’s blood. The charge—defined under Mississippi law as an act “eminently dangerous to others...regardless of human life”—carries a maximum sentence of life in prison. But Lowndes County Circuit Court Judge Jim Kitchens, in a two-page ruling, held that under Mississippi law Gibbs could not be charged with murder. Kitchens made clear prosecutors could seek to re-file charges, but at most Gibbs could be charged under the state’s manslaughter statutes. A conviction on such a charge would carry a maximum sentence of 20 years in prison. “We are very pleased by the court’s ruling and hope that it will put an end to a prosecution that has dragged on for seven years,” said Lynn Paltrow, executive director of National Advocates for Pregnant Women, a New York-based non-profit organization. “No woman, much less a teenager, who becomes pregnant should have to fear that if she seeks to conMay 15, 2014

CASE STUDY/ drug abuse/mississippi judgment

using drugs during pregnancy, even when their babies were born healthy. Supporters say the threat of punishment can deter mothers-to-be from putting their unborn children at risk. But reproductive rights advocates argue that prosecution only deters women from seeking help with addiction and prenatal care. Those advocates see the cases—documented in this 2013 report by the National Advocates for Pregnant Women—as a part of a broader strategy by abortion opponents to employ the concept of fetal “personhood” to weaken women’s ability to end their pregnancies. Lowndes County Assistant District Attorney Mark Jackson said his office was “considering all options” as it contemplated what to do next. “We haven’t made a decision on what’s going to happen going forward,” Jackson said in an interview with ProPublica.

Anthony Lawrence

END OF A SAGA The Mississippi court’s verdict, absolving Rennie Gibbs from charges of killing her yet-to-be-born baby, brought an end to the seven-year old legal battle

May 15, 2014

tinue her pregnancy to term but suffers a miscarriage or stillbirth, she will be arrested and charged with murder.” SWEPT BY “FETAL HARM” As reported by ProPublica, the case against Gibbs is one of a wave of so-called “fetal harm” prosecutions across the US. Hundreds of women have faced criminal charges for

ROW OVER DEATH Samiya was born a month premature, and never took a breath after being delivered in November 2006. Within days, Steven Hayne, a Mississippi medical examiner at the time, declared her death a homicide, caused by “cocaine toxicity”. In early 2007, a Lowndes County grand jury indicted Gibbs, who is African American, for having smoked crack during her pregnancy, declaring that she had “unlawfully, willfully, and feloniously” caused the death of her baby. Since then, medical experts for the defense have said that Samiya’s likely cause of death was not cocaine but the umbilical cord that was wrapped around her neck when she entered the world. The defense lawyers have challenged Hayne’s conclusions, calling his autopsy findings “unreliable” and “inadmissible”. They have also challenged the idea that cocaine use by pregnant mothers can actually cause stillbirths. Jackson, the assistant district attorney, said if prosecutors sought new charges they would put some of the defense’s material before the grand jury. In his ruling, Kitchens said the Mississippi Supreme Court had in the years since Gibbs’ indictment decided that murder charges in such cases were not

Anthony Lawrence

appropriate. He did not decide anything related to the specific allegations and medical evidence in the Gibbs case. FEAR OF LAW The case has caused deep anxiety among advocates for low-income women in Mississippi. The state has one of the worst records for maternal and infant health in the US, as well as some of the highest rates of teen pregnancy and sexually transmitted disease. Many of the factors that have been linked to pre-natal and infant mortality, like poverty, poor nutrition, lack of access to healthcare, pollution, smoking, stress, are rampant there, especially among black women, who suffer twice as many stillbirths as whites. “The biggest threats to life, born and unborn, do not come from mommies but rather from poverty, barriers to healthcare, persistent racism, environmental hazards, and prosecutions like these,” said Paltrow. “Every medical group, including the ones that focus on babies, say that these kinds of prosecutions frighten women away from nec-

The stillborn case raked up issues like the rights of women and unborn, racial bias against African Americans and factors leading to pre-natal and infant deaths. essary care, to the detriment of children.” It is possible that prosecutors could try to indict Gibbs under the state’s illegal abortion statute, a charge that would carry a maximum sentence of 10 years. But Jackson, the prosecutor, said that was unlikely. “In our view, neither the law nor the evidence justify prosecuting this young woman, who was a teenager at the time, and we hope this is the end of it,” said Robert McDuff, one of Gibbs’ lawyers. “But if further charges are brought, we will return to court in her defense.” IL ----------------------------------------------Nina Martin covers gender and sexuality for ProPublica and has specialized in women’s, legal and health issues. Courtesy: ProPublica May 15, 2014

SPORTS / badminton/saina nehwal

RISE, RISE FALL

she shot to fame in 2008, won nine world crowns and rose to No 2 rank in 2013, but has gone downhill since then. what went wrong with saina nehwal? By Gaurav Kalra

he 2008 Beijing Olympics was a landmark event in Indian sport. Shooter Abhinav Bindra won the country’s first individual gold, while boxer Vijender Singh and wrestler Sushil Kumar added a bronze each to make it India’s most successful games in history. While the three medal winners basked in the spotlight, a fourth came agonizingly close to joining this elite group. A waif-like teenager, Saina Nehwal, lost an epic quarterfinal against Indonesia’s Maria Kristin Yulianti. She won the thrilling first game 28-26, but lost the second 14-21. In the decider, with a bronze assured for the semifinalists, Saina led 11-3. She stumbled, and allowed Yulianti to win 21-15. The shuttler later lamented how she actually allowed an “easy match to become diffi-

Saina’s confidence is down and she has lost to players she would beat convincingly earlier. Playing her no longer evokes the same fear among her rivals, say experts. 54

May 15, 2014

cult” and described it as “disheartening”. The defeat turned out to be the catalyst that propelled Saina to unprecedented successes. She clinched the bronze at the next Olympics in London (2012). In those four years, she won nine international tournaments, six of which were elite Super Series crowns. She triumphed thrice in Indonesia (2009 to 2011), and won in Singapore, Chinese Taipei, Switzerland and Hong Kong. In February 2013, Saina was ranked No 2 in the world. “Saina versus China”, screamed newspaper headlines, as she seemed to be the only woman, who could stop the Chinese shuttle players in their track. Chinese coaches worked overtime to find ways to contain this Indian trailblazer. Saina was an opponent to fear and respect. With her endearing persona, she became a household name in India. Since that magical day, Saina has slipped to number 9 in the world rankings and won just two tournaments, one of them the low-key Indian Open Grand Prix. Her most recent defeat came at the hands of Eriko Hirose of Japan, ranked seven spots below Saina, in the first round of the Singapore Open. Since she clinched the Denmark Open in October 2012,

Saina’s win-loss ratio is 43-24. As Vimal Kumar, former national badminton coach, assesses, Saina’s confidence is down and she has lost to players she would beat convincingly earlier. “Playing her no longer evokes the same fear among her rivals,” he says. One of the reasons, according to Kumar, is an explosion of talent, especially from Asian nations. Although the Chinese players still occupy the top three spots in women’s rankings, Thailand, South Korea and Chinese Taipei have made a concerted surge in recent times. No one typifies these winds of change more than the 19-year old Ratchanok Intanon of Thailand, who won the World Championships earlier this year and who is the youngest to win a Super Series event. She has won the last two encounters against Saina.

alaysia’s badminton legend Rashid Sidek thinks Saina “needs to work more and get stronger physically.” In fact, this was Saina’s defining quality not too long ago. She seemed to have limitless endurance to grind down her opponents. But the edge seems to have gone. Aparna Popat, who won a record nine straight national crowns, says: “She isn’t moving around as well. And because she is just a bit slower, the rallies go on longer, giving her opponents a better chance.” It is interesting that what was once her asset—to play long rallies—has become her Achilles’ heel. Experts feel that it is time for Saina to change her style a bit. A string of injuries in 2013 contributed to Saina’s decline. Her coach Pullela Gopichand admits that a hectic playing schedule despite back, toe and ankle problems may have backfired. “You want to protect your ranking, so you tend to play too many (matches) and that hurts you in the end,” Gopichand explains. Saina’s camp should have followed what tennis star Rafael Nadal did. After a shock second round exit at Wimbledon in 2012, he took an eight-month break to heal his troublesome knee. He missed the London Olympics, as well as the US and Australian Opens and only returned when he felt healthy. He won the French and US Opens, and reclaimed the top spot in the rankings.

In badminton, Indonesia’s Simon Santoso made a stirring comeback only recently, stunning World No 1, Lee Chong Wei, to win the Singapore Open. Santoso dropped from No 3 to out of the top 100 because of back problems. The 28-year didn’t rush his comeback and returned only when he was fit. Perhaps Saina, whose counter-punching and fiercelydogged style is similar to Nadal, might benefit if she adopts a similar approach. Saina’s injuries have healed now, but she has a new player to counter locally. PV Sindhu, a cherubic teenager from Hyderabad and coached by Gopichand, produced a miracle to win a first-ever bronze at the World Championships. It was a feat that Saina hasn’t achieved till now. In two years’ time, the Holy Grail awaits both of them. The Olympics in Rio De Janerio will be Saina’s last chance to gun for the cherished gold and Sindhu’s first attempt. One will have to see who triumphs—the 20year-old youngster or the 26-year-old pro. IL May 15, 2014

HUMAN INTEREST/ divorce/child alienation

DADDY DEPRIVED

courts generally give custody of kids to mothers. the agony of fathers goes unnoticed. It’s time shared parenting is promoted By Ritu Goyal Harish

EJSING Gaikwad 36, was over the moon when he discovered that his wife was pregnant. It was February 2009, and the couple lived in Mumbai. Gaikwad was employed with the Tata Group, and life seemed perfect. But things changed a month later when his wife walked out and moved to her mother’s home in Pune. A distraught Gaikwad had to go to Pune on weekends to visit his pregnant wife, despite the demands of work.In October 2009, the couple was blessed with a baby girl. Gaikwad’s wife chose to remain at Pune. He quit his Mumbai job and moved to Pune in 2010 when she disappeared again, with the baby. She eventually returned, but rebutted attempts of reconciliation and in 2013 applied for divorce. Thus began Gaikwad’s battle to gain quality access to his daughter. Rajesh Nair, 44, agreed to a divorce by mutual consent in 2011, only because the application proposed joint custody of the two daughters, who would live with either parent every alternate year. The first year after the divorce, the girls, then aged 14 and 08, lived with him. The following year while the girls were under his ex-wife’s care, he was denied visitations on frivolous grounds. In the third year, she refused to send the

May 15, 2014

Anthony Lawrence

daughters to him as per the divorce decree, and filed for full custody instead. Gaikwad and Nair are not alone. Fathers across cities in India are being denied the right to visit their children. In over 1,000 cases, pending in family courts in Pune, over 75 percent fathers are being denied visitations despite court orders. The rise in divorce rate, which has doubled in the last five years in India, is attributed to the emancipation of the Indian woman. She is fighting for her rights, and sometimes a divorce is the only alternative. However, this leads to the issue of fathers being denied visitation rights to children. While mothers are viewed as primary caregivers, problems arise when they are considered “the only” caregivers, leading to alienation of fathers from their children. “The inherent flaw with the custody law is that it views fathers as providers and not as nurturers,” says KV Jahgirdar, founder, Child Rights Initiative for Shared Parenting. He fought a long battle for shared custody of his child; the case went up to the Supreme Court (Kumar V Jahgirdar vs Chethana Ramatheertha). “Visitation rights for few hours to a father are not enough. Why should he be a visitor in the child’s life?” he asks. “Family courts should work towards saving the family, not alienating fathers,” adds Gaikwad. In October 2013, the family court in Pune granted him two hours visitation to his daughter on 1st, 3rd and 5th Saturdays of every month; the venue was the court’s child care center. However, things went awry when the court accepted charges leveled by his wife without substantiation, and altered the visitation order. “I don’t know how the judge accepted her allegations. I call it ‘judiciary assisted parent-child alienation’,” he says. The courts also fail to take custody issues as seriously as maintenance. “If a man fails to pay maintenance, he can be jailed. But there is no penal action against the woman who willfully alienates the father and violates court orders,” says Deepak Joshi of the Men’s Rights Association. Contempt of court charges are not brought against mothers who defy court orders. The only known case of contempt against a mother is that of

HAPPINESS DESTROYED Divorced Tejsing Gaikwad with his wife on their first marriage anniversary; and their daughter, Neveah

May 15, 2014

HUMAN INTEREST/ divorce/child alienation

“The inherent flaw with the custody law is that it views fathers as providers and not as nurturers. Why should a father be a visitor in the child’s life?” — KV Jahgirdar, founder of Child Rights Initiative for Shared Parenting

Aman Oberoi vs Tina Oberoi (2008). Justice Shiv Narayan Dhingra of the Delhi High Court found Tina guilty of attempting to alienate the child from his father and ordered her to allow visitations. In case of non-compliance, the court asked for recovery of penalty from her. The court observed: “The enquiry made from the child showed that the mind of child was highly poisoned against the petitioner (father) by the respondent (mother) and he was tutored to a great extent. It is amply clear that the respondent who was not agreeable to the visitation rights, had seen to it that the child himself created such a scene in the Court that the Court was convinced that the child was unwilling to meet the father.” This was perhaps the earliest reference to Parental Alienation Syndrome (PAS), a seamier side of

The positive Shared parenting implies that divorced or separated couples should retain a strong positive parenting role in their children’s lives, and the kids should spend time with both parents. (Source: www.spig.clara.net)

... and the negative Parental Alienation Syndrome (PAS) is a psychological condition in a child, which adversely impacts his/her relationship with a parent in a number of identifiable and dysfunctional ways. The causes of the disorder can be traced back to the actions, behavior and decision-making of one parent who interferes with the child’s relationship with the other one. The common symptom of PAS is the child’s opposition to contact with one parent and/or overt hatred toward the same parent. Legal intervention is a must to remove the alienated child from the custody of the alienating parent, and have the alienated child examined by a psychologist. (Source: Hostile aggressive parenting and parental alienation syndrome: an overview, by Dr BL Agarwal and Dr Anita Nischal)

May 15, 2014

custody battles. Many mothers methodically manipulate their children to brainwash them against the father. Consequently, the children refuse to meet their fathers, which, in turn, is produced as evidence in courts. Although unrecognized by India, PAS is equated to child abuse in western countries. After one year under their mother’s care, Nair’s daughters began refusing to meet him “The happiness experienced when they were with me would disappear the minute they’d go back” he says. Last year, his younger daughter’s behavior became inconsistent, and oscillated between being quiet and rude with him. She also confided that the mother scrutinized her visits. A surest sign of PAS but Nair isn’t sure if the court will accept his submission, and order counseling to evaluate the psychological damage to his girls.

t may be hard to accept that mothers can perpetrate psychological crimes that involve their children, but statistics show that they disobey court orders, and alienate fathers from children. “Children need both parents. Our system of family courts and family laws resolutely accomplish the opposite. That must change,” says Joshi. “I have not celebrated a single birthday or festival with my daughter,” says an emotional Gaikwad. Recently, a Bombay High Court order has given teeth to his fight for an equal stature in raising his daughter. As for Nair, even though his girls are almost completely alienated, he initiates contact with them knowing that they are not to be blamed. The law in India favors the mother in a marital dispute. Jahgirdar puts the issue in perspective, “Welfare of the child is paramount and even in the West, there is a growing realization about shared parenting.” It’s the right time for courts to recognize a father’s right to raise his children as an equal and fundamental right without prejudice to his relationship with the mother. IL

GLOBAL TRENDS/ food system/US oligopoly

BULLY they control commodity prices and food production globally and has 80 percent share each in cereal and fluid milk markets in the country By David E Gumpert

W LIMITED CHOICE Brands owned by Kellogg’s and Pepsico rule the $10 billion cereal market in the US

May 15, 2014

hile reporting on Russia’s takeover of Crimea, the world’s media outlets have taken much pleasure in speculating on whether financial sanctions by America will target Russian oligarchs, who control much of the Russian economy. It’s as if Russia is unusual in having huge swaths of its economy under the control of a few industrialists and apparatchiks, who seem impervious to outside pressures to rein them in. Ignored in all the rhetoric is the growing power of American oligarchs, who control America’s food system, and their growing international influence. They throw their weight around to knock out smaller competitors and seem as impervious as the Russians to any kind of government or consumer pressure to retrench. The rise of America’s food oligarchs and their control of commodity market pricing and food production around the globe coincides with the soaring suicide rates of farmers across the world. The suicide rate for American farmers is nearly twice that of the general population. India has had more than 270,000 farmer suicides since 1995, and in France a farmer commits suicide every two days, according to Newsweek. One example of this oligopoly control is the huge meat industry in America. According to journalist Christopher Leonard’s book, The Meat Racket: “Just a handful of companies produce nearly all the meat consumed in the United States…a powerful oligarchy of corporations that determines how animals are raised, how much farmers get paid,

BRANDS to keep control, beginning with political contributions to key politicians. They also block competitors or consumer-friendly initiatives. WARDING OFF PORK COMPETITORS A number of American states have experienced environmental damage from so-called feral pigs—hogs that run wild in the woods and trample vegetable and fruit plots. As other states watched with interest, Michigan took

Anthony Lawrence

and how meat is processed, all the while reaping massive profits and remaining almost opaque to the consumer.” Oligopoly is spreading its influence internationally. Last year, the Chinese company, Shuanghi, paid $4.7 billion to acquire Smithfield Foods, the world’s largest pork producer and one of the four companies that comprise the American meat oligarchy. Then there is the oligopoly that controls America’s $10 billion cereal market. Four companies—General Mills, Kellogg’s, Pepsico and Kraft Foods—are estimated to control more than 80 percent of the market. And, of course, these companies sell their breakfast cereals across the globe. Finally, there is the oligopoly that controls the dairy market. One company, Dean Foods, controls more than one-third of America’s fluid milk market and as much as 80 percent of various local markets. A few other cooperatives and corporations control the rest. These companies spend heavily

May 15, 2014

GLOBAL TRENDS/ food system/US oligopoly

DIFFICULT TIMES Small farms making a living out of hog farming have faced adverse legal interventions

the lead in 2012 to eradicate the pests by enacting a regulation to ban all wild pigs. That would have been fine with most people, except the state’s Department of Natural Resources, which went a step further and banned anyone from raising wild pigs, which are easily domesticated. This created a problem for many small farms that sell meat from such pigs as a premium product in Michigan. The order’s effect was to drive a number small farms out of business, and alienate those struggling to remain in business. The regulation seemed so broad so as to prohibit all breeds not being raised by the state’s large pork producers. One of the affected farmers was Mark Baker, a US Air Force veteran who had turned to hog farming when he retired from the military. He sued the state for allegedly violating his constitutional right to his property, but before the suit could be heard, his commercial customers, including high-end restaurants in Detroit and other metropolitan areas, abandoned him. The state also fined him $700,000 for refusing to get rid of the banned hogs. Early this year, a state judge granted Baker a limited victory—it dismissed his suit against the state, but only after the state said that Baker wasn’t violating the state’s wildpig regulation, in effect allowing him an

Food MNCs spent $65 million in California and Washington to successfully convince consumers that they were wrong to fear genetically-modified products. 62

May 15, 2014

exemption. But just a few weeks later, another state judge threw further doubt onto the corporate-backed regulation by declaring it unconstitutional for other farmers. The move to prevent small farmers from raising “feral pigs” now seems in limbo nationally. THWARTING LABEL LAWS Consumer organizations have sought to force food producers to specify on the ingredients’ label whether they had used genetically modified organisms (GMOs). The largest food corporations blocked all such efforts, putting themselves into conflict with millions of customers and the European Union, which has restrictions on GMO use. The corporations’ resistance has encouraged a growing consumer activist movement. Leading food corporations like General Mills, Pepsico and Monsanto spent millions of dollars to defeat proposals springing up around the US that would force labeling; nearly seven million people in California and Washington state voted in 2012 and 2013 for propositions in favor of

President Barack Obama failed to rein in the meat oligarchy; he couldn’t push through regulations that would encourage competition. It left his team embarrassed.

EATING OUT OF THEIR HANDS A small number of companies produce almost 80 percent of the meat that America consumes

labeling. Though the propositions were defeated, the activists lost narrowly—53 percent to 47 percent in California, and 51 percent to 49 percent in Washington—and only after the corporations invested more than $65 million in the two states in television and other advertising to convince voters (customers) they were wrong to worry about GMO foods. The controversy still shows no signs of abating. A CLEAR WINNER IN MILK BATTLE The sale of unpasteurized milk is a highly controversial subject throughout the US, and is regulated mostly on the state level. About 30 states allow some form of raw milk distribution, and about 20 ban its sale. But in recent weeks, a coalition of 19 members of Congress sponsored a legislation to lift the federal ban on the interstate sale of unpasteurized milk. A relaxation of the ban would allow states that produce raw milk to sell it in states where it can’t be produced for sale. The dairy industry immediately raised objections, portraying an image of sick and

dying children. The president and CEO of the National Milk Producers Federation put it this way: “If this measure passes, those most vulnerable to dangerous pathogens— children—are the ones who will suffer the most. The benefits of consuming raw milk are illusory, but the painful costs of illness and death are very real. Consumption of raw milk is a demonstrated public health risk. The link between raw milk and foodborne illness has been well-documented in the scientific literature, with evidence spanning nearly 100 years.” Within days, The Washington Post was out with a long article highlighting two cases of people having become seriously ill from raw milk in recent years. Given the dairy industry’s strong political muscle, it is doubtful whether the proposed relaxation of the interstate ban will get through in the current term, at least. But it will promote more interest in unpasteurized milk. A FORMIDABLE FORCE Indeed, America seems powerless against its food oligarchs, even though the US has strict antitrust laws limiting concentration of economic power. According to The Meat Racket when President Barack Obama tried in 2010 to rein in the meat oligarchy via regulations to encourage more competition, the meat corporations successfully fought off the intrusion via heavy lobbying, leaving the Obama team embarrassed. The food oligarchs’ combative approach has had ripple effects for individual agriculture and food corporations. Last May, an estimated two million people demonstrated against Monsanto (the producer of food and seeds) in 50 countries. They were protesting against its genetically engineered seeds that dominate the agriculture market, worldwide. The food oligarchs also seem to have ignited a campaign for “food rights”. IL May 15, 2014

GLOBAL TRENDS/ ukraine crisis

POWER GAMES

russia’s annexation of crimea is an attempt by putin to thwart nato’s increasing influence in eastern europe and kill the proposed trade-and-political pact between Ukraine and EU By Seema Guha 64

May 15, 2014

WHERE EAST DOESN’T MEET WEST RUSSIA

Western part of Ukraine favors integration with the EU

kiev Kharkiv

The eastern part is dominated by Russian speaking, people, supporting Moscow Luhansk Donetsk

CRIMEA Sevostopol

Anthony Lawrence

IN CONFRONTATION WITH ITS FORMER LORD (Left) A fighter jet flies above as Ukrainian soldiers sit on an armoured personnel carrier in Kramatorsk, in eastern Ukraine, April 16, 2014. The ouster of pro-Moscow President Viktor Yanukovich led to Russia annexing Crimea, the southern tip of Ukraine

UNI

KRAINE and its Western allies—the US and European Union (EU)—are crying hoarse over what they perceive as Russian President Vladimir Putin’s deliberate trampling of international law in annexing Crimea in March this year. Trouble has also begun in Ukraine’s east Donetsk, Luhansk and Kharkiv, where pro-Russian activists have taken control of a few administrative buildings in a half-baked attempt at revolution, demanding greater autonomy from Kiev, the largest city and capital of Ukraine. Ukraine claims that Russia is flexing its muscles in a bid to ferment trouble and its aim is to take control of the areas where its influence is dominant. Seconding Ukraine’s fears, both the US and EU have warned Russia that it will have to pay a heavy price for its adventurism. On the face of it, taking over a part of an independent nation goes against international law and the United Nations’ principles which were framed to uphold a world order based on May 15, 2014

GLOBAL TRENDS/ ukraine crisis

UNI

THE RUPTURE WITHIN Ukrainian soldiers clash with pro-Russia protesters on the field near Kramatorsk, in eastern Ukraine in April 2014

May 15, 2014

freedom, and equality and the sovereign right of nation states. US President Barack Obama has dubbed the Russian action in Crimea as a “violation of international law.” A resolution, questioning the legality of the Crimea referendum was brought to the UN General Assembly by Ukraine. At the UN Security Council (UNSC), it was vetoed by Russia, one of the five members of the UNSC. Unlike a UNSC resolution, the General Assembly resolution is non-binding and merely reflects world opinion. Only 169 out of the 193 UN General Assembly members were present during voting. Hundred countries supported Ukraine’s resolution. Eleven nations, including Russia, voted against it and 58 countries, including India, China, Brazil and Israel, abstained. Tel Aviv’s decision came as a surprise, considering it is one of the closest allies of the US. The resolution reflected that a strong country cannot annex a smaller neighbor. But in international politics issues are not always black and white. The Ukraine crisis is

complex—a throwback to the days of the Cold War, when the two superpowers fought shadow battles in far flung countries. Also, Ukraine, wedged in between Europe and Russia, is being pulled in opposite directions, with the western part of the country prefering closer ties with the EU and the eastern part heavily influenced by Moscow.

rouble began in Ukraine, a country which was part of the former Soviet Union till its independence in 1991, when it went back on its commitment of a trade deal with the EU. On November 21 last year, when Ukraine’s former President Viktor Yanukovych suspended talks on a trade and political pact with the EU, there were protest by those who believed they would be better off with closer ties with the western democracies. They felt that closer cooperation with the EU would lead to more trade, jobs and an economy finally integrated with Europe. Agitations and street protests began almost immediately and con-

tinued for three months. The EU deal would have entailed reforms and stringent conditions by the IMF. In the short term, there would be immense hardship for the people. Yanukovych, already an unpopular leader with a debt-ridden economy, was desperate for an infusion of funds. Moscow was offering a much sweeter deal. Russia was willing to advance around $20 billion, with the enticement of immediately disbursing $2 billion to the cash-trapped government. Moscow made it clear that the concessions given in oil and gas prices to Ukraine would be scrapped if the deal with the EU went through. Yanukovych’s action set alarm bells ringing in Washington and European capitals. It meant an end to the EU’s western partnership pact, which would have integrated Ukraine both politically and economically with the West, and tied Ukraine firmly to free market. The US and its allies actively encouraged the protests, in a bid to get the pro-Russian President out of Kiev. Though the trigger for the face-off was Yanukovych’s refusal to sign the pact, at the heart of the crisis was Russia’s fear that its strategic security was under threat. Since the breakdown of the former Soviet Union, the North Atlantic Treaty Organization (NATO), the military alliance led by the US, has been steadily pushing southwards and embraced Poland and many of the Central Asian Republics, once a part of the Russian bloc. After the collapse of communism, Russia was in shambles but things changed after

Putin came to power. Putin was determined to get Russia back on track and regain his country’s past prestige.

BACK TO COLD WAR WAYS Russian President Vladimir Putin takes questions from journalists on the Ukraine crisis and Crimea

he US and its allies have always been suspicious of the former KGB chief and uneasy with the former Cold War warrior. They were happy to do business with Boris Yeltsin and leaders who were seen as followers. Earlier, a weak Russia could do little to stop the southward expansion of NATO, but now, under Putin, it drew the line when Moscow felt its very security was threatened, with Ukraine ready to embrace NATO. In an effort to counter US influence, Putin is hoping to build on the Russian-led Customs Union with Ukraine and other former Central Asian Republics. However, chances of Ukraine being part of this appear dim, with former president Viktor Yanukovych out of the scene. One of the first acts of the parliament in Kiev after the pro-Russian Yanukovych fled Kiev, was to revive the demand for Ukraine to join NATO and abolish Russian as a recognized language of the country. The Kremlin saw this as a threat to Russia’s security. After all, Ukraine was Russia’s backyard. The Kremlin’s subsequent action and the

US-backed NATO has steadily pushed southwards towards Russia, and embraced Poland and other Central Asian republics, earlier part of the USSR. This scared Putin. May 15, 2014

GLOBAL TRENDS/ ukraine crisis GLOBAL CONCERN US Secretary of State John Kerry meets Ukrainian members of parliament in Kiev, Ukraine, on March 4, 2014

referendum in Crimea was a direct consequence of this. Moscow is aware of NATO’s move to box it in and there was growing concern that unless this attempt was nipped the strategic and defense interests of Russia would be compromised.

he return of Crimea to Russia is now a given. Crimea has been a part of Russia since it was conquered in the 18th century under Catherine the Great. In 1954, when former Soviet leader Nikita Khrushchev transferred Crimea to Ukraine, the transfer was an internal arrangement, as both regions were part of the Soviet Union. In 1991, when the Soviet Union collapsed,Crimea found itself part of an independent Ukraine. Nearly 60 percent of Crimea’s two million people are Russian speakers. So, it is quite natural for Moscow to want to defend its own, much as Ronald Reagan did in Granada on the pretext of saving a few American students, who later said that their lives had never been at risk. In the face-off between Russia and the West, round one has gone to Putin. But Russia has lost the goodwill among ordinary

Putin wants more autonomy for Ukraine’s eastern region and pro-Russia president in Kiev. The US hopes to integrate Ukraine with the West, politically and economically. 68

May 15, 2014

Ukrainians. Nearly one million Ukrainians work in construction sites in Russia. Problems in Donetsk, Luhansk, Kharkiv are attempts by certain pro-Russian elements to disturb the government in Kiev. Ukraine believes it is part of Russia’s bigger plans to annex these areas. But what Moscow is pitching for is autonomy within Ukraine for the eastern territory. Putin wants Russian to be recognized in Ukraine. While it could be part of the Kremlin strategy to keep the eastern region of Ukraine on the boil, the amateur attempts by people to take over government buildings do not seem to have the professional hallmark of Russia, unlike in Crimea, where it was a wellplanned action plan. Moscow is unlikely to annex the rest of Ukraine’s eastern region. What it would like is to ensure some degree of autonomy for this area and gain the goodwill of the people by supporting their claims. It is essential for Russia to get locals’ support, because with a pro-Western government likely in Kiev, Moscow needs this region as a buffer. Now, Russia, US, Ukraine and the EU have reached an agreement in Geneva to deescalate tension in the east. The quadrilateral talks have proposed a number of measurers to bring the situation to normal. Russia has promised not to send in troops to help pro-Moscow agitators in Ukraine. Though an agreement has been stitched up no one knows how the situation will pan out. IL

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BOOKS/ releases/hari jaisingh

Big event, big entries a rich harvest is in the offing, with books from ramesh menon, alam srinivas, sanjaya baru, manoj mitta, paranjoy guha thakurta and hari jaisingh By Inderjit Badhwar

NDIAN publishers are reaping a rich spring harvest this year. Just as fashion houses and clothing stores go seasonal with their designs, publishers time their best releases in tandem with political, social, or sporting events to milk the reader market. And what can be bigger in India than the mega political event—the general election—that is now occupying the nation’s center stage? Big happenings need big books. And in this regard a crop of new books are coming soon to the bookstore nearest you. The good thing is that many of them have been penned by seasoned, thoughtful journalists who have witnessed the Indian scenario at close quarters. Topping the list is a runaway bestseller, Sanjaya Baru’s The Accidental Prime Minister (Viking), in which Prime Minister Manmohan Singh’s former media adviser does a tell-all on how the PM was a political prisoner of Congress Party President Sonia Gandhi and her coterie. Baru’s book has been trashed as “baseless and mischievous” by the prime minister’s office, and Baru has been condemned as a political turncoat by none other than Communist worthy Prakash Karat, who used every ugly epithet in his lexicon to debase the PM during the Indo-US nuclear deal. Also making hay while the election sun

May 15, 2014

shines is Paranjoy Guha Thakurta’s Gas Wars: Crony Capitalism and the Ambanis (self-published). Timely, because monopolistic gas pricing became a headline-making electoral issue after Aam Aadmi Party leader Arvind Kejriwal lodged a criminal complaint against industrialist Mukesh Ambani. In a later development, Reliance Industries Ltd. (RIL) and its chairman, Mukesh Ambani, have issued a legal notice to the authors and the distributors of the book. The book details the alleged irregularities in the fixing of natural gas prices. Other journos on the book trail include our magazine’s own Managing Editor Ramesh Menon, and Executive Editor Alam Srinivas. Menon’s magnum opus, De-mystifying Modi (Harper Collins), is a hardboiled, critical and balanced analysis of the forces and controversies that have shaped the human being and politician Narendra Modi, who, if the pollsters are correct, could well be the next prime minister before Menon’s book comes out in June. Alam’s Cricket Czars (Har-Anand Publications) is about… well you guessed it…the controversies surrounding the gentleman’s game, IPL, and the people who control it. With another IPL season now upon us, and in view of the Supreme Court’s direct intervention to get to the bottom of the match-fixing, the subject assumes immediacy. An all-encompassing new book that historians, students, and anybody interested in understanding a dynamically changing India in the context of the 16th general elections is Hari Jaisingh’s Pitfalls of Indian Democracy: Bapu to

Pitfalls of Indian Democracy: Bapu to Anna By Hari Jaisingh; Publisher: S Chand & Company ` 600; pages: 430

Anna (S Chand & Company). The title sounds academic and a trifle stodgy. But the content is lively and sparkling. Jaisingh is a polished journalist. He has been editor of The Tribune, occupied senior positions in The Indian Express, National Herald and Business & Political Observer, and contributed to the Morning Telegraph and The Guardian, London. This experience is on ample display in the book, which charts the bumps and grinds, the highs and lows, the fear and loathing of the Indian political system, and institutions from the advent of Mahatma Gandhi to the Anna Hazare anti-corruption protest movement. But this is no history text book a la Romila Thapar or Jadunath Sircar or Ishwari Prasad. It is journalistic story-telling at its best, based on more than 40 years of reporting on the frontlines, with anecdotes, conclusions, lessons learned, and a vision for the future.

aisingh minces no words: “The basic ills which have undermined the vitality of our nation are communal violence, caste wars, corruption, criminalization of politics, command economy, terrorism and Maoism…the failure of political parties and politicians to keep pace with changing times… .What has added to the people’s woes is the absence of transparency and accountability… .” This is a harsh judgment. But Jaisingh takes us step by step to discover how India landed in this mess. This dark perception, however, has several silver linings that are a beacon to India’s potential and the strength of self-correcting

mechanisms that keep alive the liberal, allinclusive spirit of the constitution. During the darkest days of Indira Gandhi’s Emergency in 1975-1976, “the country’s High Courts rose to the occasion and proved true and courageous champions of citizens’ democratic rights. Ironically it was the Supreme Court that seemed to be hamstrung by the Emergency and sided with a retrograde regime… .” One of the judgments he refers to is the Emergency censor’s attempt to shut down the Baroda periodical Bhumiputra for reporting on a civil liberties conference. Even though habeas corpus and Article 19 guaranteeing freedom of speech had been suspended by the Emergency and backed by the Supreme Court, Justices JB Mehta and SH Sheth of the Gujarat High Court ruled: “There cannot be a more draconian assault on the people in a democracy than the guidelines issued by the Chief Censor… .The Chief Censor has been more loyal to the king than the king himself and has outwitted the people in their attempt to maintain even the most basic form of democracy in this country.” Commenting on today’s judiciary, Jaisingh laments: “It works slowly and thrives on delays, inefficiency, antiquated laws, outdated rules, vested interests and corrupt practices… .” Yet, broadly, he says, the country’s legal system is mature and relatively independent, and offers a set of practical recommendations for reform. And although Jaisingh is often hypercritical of Anna Hazare on several points, he remains adamant that Hazare symbolized and highlighted the churning for change in Indian society—the desire, propelled by India’s younger generation, to work for a corruption-free transparent system for the larger good of the people. No such review would be complete without mention of another, highly explosive book—The Fiction of Fact-finding: Modi and Godhra (Harper Collins), by one of my favorite reporters, Manoj Mitta, now with The Times of India. It is evident that Mitta’s has not lost his intrepid espousal of tell-it-like-it-is journalism, his USP when he reported for India Today. IL May 15, 2014

BOOKS/ releases/alam srinivas

Cricket, Commerce & Corruption extracts from the book, cricket czars: two men who changed the gentleman’s game, which explores the manipulations, shenanigans and machinations of n srinivasan, the stepped-aside BCCI president, and lalit kumar modi, the former ipl commissioner

OSSIBLY, the biggest example of Srini’s clout in BCCI was the manner in which the Board handled the finances of IPL 2, which was shifted to South Africa because of the national elections and security-related issues in 2009. He was the Secretary then, but it signified how decisions were taken by Srini. Incidentally, the South Africa season got BCCI into trouble with the ED. The ED alleged that the BCCI had flouted FEMA (Foreign Exchange Management Act) as it had not taken permissions from the government and RBI to shift the league to South Africa, and for the huge payments in foreign exchange made by BCCI to Cricket South Africa, which helped to organize IPL 2.

May 15, 2014

Based on ED’s show-cause notice (November 2011), and the replies given by LKM and BCCI to it, one can reconstruct the sequence of events. The fact was that the IPL season in 2009 (April and May) clashed with the general elections, which were held in five phases between April 16 and May 13. On March 22, 2009, the BCCI discussed the difficulties to organize IPL 2 in India. ‘The (individual) States (and their associations) were interested (to hold the league in the country) but they could not go ahead without the approval of the Election Commission of India. The security forces (required for IPL) were reserved by the BCCI for the elections. It was deliberated to shift IPL out and the final decision was left to Shashank Manohar (BCCI President),’ stated the ED notice. Within three days after the meeting, LKM had finalized the new venue, South Africa. This is evident from the email (dated March 25, 2009) that Srini, the

Secretary, wrote to several BCCI members, which included President Manohar, LKM and Sundar Raman (IPL’s COO). The email detailed out how the BCCI would compensate Cricket South Africa (CSA) for holding the IPL matches in the country, and how the latter would transfer the ticket revenues to BCCI. The tricky issue was the opening up of a bank account, where both inflows and outflows could be consolidated and tracked. Srini explained that the Reserve Bank of South Africa did not allow foreign entities to operate accounts in its country. Therefore, the BCCI could not open a new account in South Africa. The Secretary suggested that the BCCI could opt for a system that was followed by the ICC during past international tournaments, and which was allowed by the South African central bank. (In 2003, the ICC held the World Cup ODI tournament in South Africa.). Srini’s plan was that the CSA would open a new bank account, IPL South Africa, and make payments on behalf of the BCCI to the various vendors and stadium owners. The BCCI would replenish the account through the transfers as and when it was required. The gate revenues would be consolidated under the new account. At the end of the season, CSA would send the final settlement statement.

n his wisdom, Srini decided that this financial arrangement did not require RBI approvals for two reasons. One, the new bank account would be opened and operated by CSA, and not the BCCI. Two, the transfer of funds by the BCCI to the new account would be covered under FEMA’s current account transactions, which were legally allowed under the Act. Several BCCI members, like Sundar Raman, Prasanna Kannan (IPL’s CFO), and MP Pandove (Treasurer) gave evidence to the ED on how the payment structure was organized within the BCCI, and how funds were transferred to the new bank account in South Africa. Raman was more specific. He told the ED that the procedure for payment approvals for IPL 2 were that the vendor’s email estimate was sent to LKM. After his okay, it was

Anthony Lawrence

sent to Srini (Secretary), and then to CSA. For the release of payment, the invoices were checked by either Kannan or himself, approved by LKM, authorized by Secretary, and ‘onward to IPL (SA)’ bank account. Ratnakar Shetty, Chief Administrative Officer, BCCI, said that ‘all executive decisions of BCCI were taken by Secretary’. Chirayu Amin, who became the Chairman of the IPL Governing Council after LKM’s exit in 2010, agreed that the ‘Secretary was authorized to approve expenses….’ According to ED’s show-cause notice, the BCCI remitted $49.86 million (Rs 2.44 billion) to ‘IPL (SA)’ bank account between March 31, 2009, and August 27, 2009. The Board received an amount of $8.93 million on account of ticket receipts and VAT refund from the same account. The BCCI neither took the RBI permission to remit the money, not did it repatriate the amount due to it within 90 days of the conclusion of IPL 2, as required under FEMA. Sources in the May 15, 2014

BOOKS/ releases/alam srinivas

BCCI claimed it had done nothing illegal in the South Africa IPL case. ‘All the transactions, whereby the Board transferred money into the IPL South Africa bank account, and received sums from it, were done through the normal banking channels. The money was sent and received into BCCI’s normal accounts in the country, as is evident from ED’s notice. In addition, we legally maintain that these transactions were in the nature of current account transfers and receipts and, therefore, no permission was required from the RBI under FEMA.’ ********************************************

FTER the first season of IPL (AprilJune 2008), there were several disputes between the BCCI and Sony. LKM was unhappy with Sony for reasons such as bad and dirty feed of the IPL matches, incorrect declaration of commercial time sold by the broadcaster, and its failure to give air-time to the BCCI to promote the league, as was specified in Sony’s contract. At the meeting of IPL’s Governing Council on February 5, 2009, these issues were discussed and LKM was asked to take action

May 15, 2014

against Sony. At this stage, the picture became hazy and Sony’s contract was abruptly cancelled on March 14, 2010, less than four weeks before the start of IPL’s second season (April 8, 2009). In his reply to BCCI’s first show-cause notice (April 26, 2010), LKM said that Sony’s exit was prompted by the fact that the BCCI and broadcaster could not reach a consensus ‘on language (of the reworked contract) and guarantees (to be paid).’ Whatever might be the case, BCCI sent the termination letter at 8.14 pm on March 14, 2009. In two hours, at 10.15 pm, Sony replied through an email that it would approach the Mumbai High Court the next day at 11 am to seek an interim relief against the cancellation. LKM knew this was bound to happen. Strategically, even before Sony was kicked out, he initiated discussions with other potential broadcasters, which included ESPN, Star Group, NDTV and, of course, WSG India. This was done so that the BCCI could claim in any court that talks were on with other rights holders and, therefore, Sony’s plea for interim relief should be rejected. In LKM’s scheme of things, the best solution was to sign a new contract before the court hearing at 11 am on March 15, 2009. He had less than 13 hours after he received Sony’s email. The urgency was palpable. The BCCI-IPL lawyers and WSG India executives shut themselves in a room. At 3 am on March 15, 2009, a deal was struck. WSG India agreed to buy the Indian sub-continent rights for the remaining nine years. But it designated WSG Mauritius to sign the agreement with the BCCI. The pressing reason for WSG’s decision was that the Mauritian angle gave the BCCI a legal advantage. If the court was told that the new agreement for the subcontinent rights was signed with a Mauritius-based company, the judge might find it more difficult to reject the contract. Despite LKM’s efforts and his legal farsightedness, the court restrained the BCCI from signing a new media tights contract until January 17, and fixed the next hearing for January 16. On March 16, the court refused to extend the interim relief granted to Sony when BCCI produced the agree-

Courtesy BCCI

MILLION DOLLAR SHOT Suresh Raina bats during the Chennai Superkings vs the Delhi Daredevils match of Pepsi IPL 2014 series

ments inked with WSG India (the new one) and WSG Mauritius. Faced with this legal missile, Sony’s lawyers argued that the court should ask the BCCI not to approve any broadcaster, which would be chosen by WSG Mauritius. Sony had realized that WSG Mauritius could not telecast IPL on its own, and would turn to another broadcaster to sub-license the Indian rights. In fact, the BCCI’s agreement with WSG Mauritius gave the latter 72 hours to subcontract the rights to a new broadcaster, or they would revert back to the BCCI. LKM pre-empted this eventuality too. On March 15, 2009 itself, BCCI told WSG Mauritius that it could sign up with any of the few specified broadcasters, which included Sony, NDTV, ESPN, Star Sports, Neo Sports, TV 18, Sun Astro and DD. The Board gave a template of the media rights sublicense agreement so that the subcontract deal could be signed fast. On March 16, 2009, Sony’s plea to prevent the BCCI from approving a new broadcaster for the India rights was not entertained by the court. The same day, WSG Mauritius and NDTV Mauritius signed a draft subcontract agreement. Before the

Cricket Czars: Two men who changed the gentleman’s game By Alam Srinivas; Publisher: Har-Anand Publications ` 495; pages: 258 lapse of the 72-hour deadline for WSG Mauritius to find a broadcast partner ended, BCCI extended it by four days, and later by another three days, till March 24. Events happened at a hectic pace over the next nine days. On March 22, 2009, LKM told the BCCI’s Working Committee that he had reached an out-of-court settlement with Sony, which was effective from 6.30 am the next day. Sony was back in the reckoning, as it agreed to match the contract that BCCI had signed with WSG Mauritius. Officially, on March 24, 2009, WSG Mauritius informed the BCCI that its deadline to sub-license and subcontract the India rights had expired. Therefore, the BCCI could choose a new rights holder. The next day the Board signed two new and separate agreements with Sony (for the nine-year Indian subcontinent media rights) and WSG India (for the rest of the world rights). IPL 2 was two weeks away. IL May 15, 2014

IS THAT LEGAL?

Ignorance of law is no excuse. Here are answers to some frequently-asked legal queries A lady has daily fights with her maid over the latter’s lack of hygiene and abruptly sacks her one day. Does the maid have any legal rights in such a situation? In our country household help is part of the vast informal sector, which doesn’t have any social security. People are hired and fired as per the requirements—and often the whims—of the employer. The maid may not have any legal right in a face-off over hygiene. However, if her appointment has been made on the basis of stipulated terms and conditions or contract—which happens mostly in case of hiring through an agency—then she can approach a court for enforcement of her legal rights for breach of any of the terms and conditions. Illustrations: Aruna

A man cuts down the branches of a tree in front of his residence to get more sunlight. What remains of the tree is only the stump. Can he be taken to court? Legal proceedings can be initiated against him for cutting down trees without obtaining due permission from the concerned authorities. However, minor trimming or cutting may not attract any penalty. In the National Capital Region, permission to fell trees is regulated under provisions of Delhi Tree Preservation Act, 1994, according to which, if a private individual or company wants to fell a tree or trees anywhere in Delhi, an application has to be submitted to the tree officer, deputy conservator of forests and conservator of forests, Delhi. After obtaining permission, the individual or company should complete the task within the time limit prescribed in the licenses.

May 15, 2014

There is a spate of renovations in an up-market housing society, and the debris is usually dumped a little distance away. Can the civic authorities slap a penalty on the residents of this housing society? This is a rather sad aspect of urban life but law doesn’t have any teeth against individual offenders. The civic authorities cannot slap a penalty on the residents in their individual capacity but it can take action against the management or welfare association of the said housing society for causing inconvenience to the public by the act of encroachment or dumping the debris on public property.

A woman wants to leave her husband because he snores. What would be the advice of a family lawyer to the woman in this case, and what would the family court decide? One of the grounds for divorce available to both parties in a marriage is cruelty. The definition of cruelty is subjective and varies from person to person. If the wife is able to establish that her husband’s snoring is cruelty, then she may be able to divorce him on this ground.

A wife, keen on family planning, doesn’t want a child for two years following marriage. Can the husband ask for divorce? Refusal to bear a child within marriage by the wife has been held as a legal ground for divorce.

In this case, it seems the refusal is temporary and only for the purpose of family planning. The husband will have to convince the court that the refusal for two years tantamounts to cruelty, in order to get divorce.

A couple books a banquet hall for their daughter’s grand wedding in February. The entire ceremony is slated on the opulent lawns of the venue. As usually there are no rains in that month, the owner of the banquet hall does not make preparations for inclement weather. But, it does rain heavily, washing away the whole event. The bride’s family is shattered. Can it seek a refund from the owner of the venue? In case, the deal between the bride’s family and the banquet hall owner is not on paper, nothing much can be done legally. What would, however, clinch the issue for the aggrieved party in such cases is ensuring a prior contract that mentions the services the owner will provide and spells out the dos and dont’s. These days most of the arrangements for big fat Indian weddings are left to wedding planners, who organise the functions like engagement, sangeet, wedding, or any other pre- or post-event bashes. May 15, 2014

CONSUMER WATCH

Tight-fisted insurance company GETTING insurance companies to pay claims is like getting Uncle Scrooge to part with a dime. More often than not, they delay or deny claims. But thankfully, there are avenues open for distressed consumers. The National Consumer Disputes Redressal Commission (NCDRC) severely dealt with an insurance company when it refused to pay compensation to the family of an employee who fell from an electric pole and died. Chhattisgarh State Power Holding Co Ltd (CSPHCL) had obtained a group personal accident insurance policy for its employees from Bajaj Allianz General Insurance Company Ltd. Under it, a sum of `4 lakh was payable in case of accidental death of an employee. On July 10, 2006, Maniram Sahoo was doing construction work for the state Electricity Board, when he

Illustrations: Aruna

May 15, 2014

fell from an electric pole 36 feet in height and died. CSPHCL paid `4 lakh to the legal representatives of the deceased employee and sought to claim the amount from the insurance company on August 1, 2006. But incredulously, Bajaj Allianz repudiated the claim on September 18, 2007, saying the deceased was insured only for accidents and that he must have died due to heart disease before he fell, rather than died after he fell. CSPHCL approached the district consumer forum which directed the insurance company to pay the compensation. But Bajaj Allianz sought relief from the state consumer commission which ruled in its favor. The case went up to NCDRC which held that the cause of death stated in the post-mortem report did not support the version of the insurance firm that it was a death not due to accident. NCDRC said: “It has been stated in the post-mortem report that no external injury was found on the body of the deceased. During fall from a pole, it is not necessary that bodily injury should always take place. The basic point is that there has been a fall from a pole and there has been the death of the employee. The argument taken by the respondent that the employee suffered heart attack while working on the pole, he died then and there, and then fell down, is not substantiated by any medical evidence. Rather, the version that because of his fall from the pole, he got a shock, due to which he suffered a heart attack and died, seems to be a more plausible explanation. Even if it is believed that heart attack occurred while he was working on the pole, the factum of falling from the pole and his death does not exclude the incident from the nomenclature of ‘accident’, based on the test of any prudent thinking and common sense.” The insurance company said the death was due to cardio-respiratory failure. But the commission gave it back, saying, “The cause of cardiac arrest could be the existence of a pre-cardiac disease or even in the absence of such a disease, the cardiac arrest could take place due to shock upon falling from a pole 36 feet in height. In the event of death by any means, the cardiac arrest or cardiac failure has to take place and only after that, a person is usually declared as dead.” Talk about teaching biology.

Two-in-one flat SELLING the same flat or land to more than one buyer is an old trick of fraudsters. But when a state-owned development agency does it, it is time to sit up and take notice. A buyer had booked a flat in Narela under Delhi Development Authority’s (DDA) housing scheme in 1997. He was allotted the flat but discovered that it was allotted to another person. When he approached the district consumer forum, his complaint was dismissed. He went to the Delhi State Consumer Disputes Redressal Commission (DSCDRC), which directed the DDA to provide the complainant another flat of the same description in the same locality or nearby. It further said that if the DDA didn’t do so, it would have to pay `3 lakh to the complainant because of skyrocketing prices between 1996-1997. DDA challenged it by filing a revision petition with NCDRC, which imposed a fine of `5 lakh on the DDA. It asked it to recover the damages from the salaries of “delinquent officials” who had been pursuing “meritless litigation” and ordered that out of `5 lakh, `2.5 lakh would be given to the complainant and the rest deposited in the commission’s Consumer Legal Aid Account.

Justice delayed is

justice denied

Khemka’s bitter pill THE Kharar-based Central Government Employees Welfare Housing Society (CGEWHS) got a taste of Haryana IAS officer Ashok Khemka’s medicine when the Mohali District Consumer Forum ordered it to pay compensation to Khemka for poor service. Khemka had paid the second instalment for his 3-BHK flat in Mohali on October 10, 2007. But the society, which said it would start construction by that time, did so only in July 2008.The society’s rules stipulate that if buyers don’t pay in time, they would pay 15 percent of the total amount as late fee. In view of this, Khemka filed a complaint in the district forum, accusing the society of deficiency in service. The forum asked CGEWHS to pay him 15 percent of the second instalment amount, which worked out to `49,689; the same amount CGEWHS intended to charge as late fee. It also ordered the society to pay an additional compensation of `25,000 to Khemka for not meeting the deadline for starting construction work.

THE wheels of justice move slowly. But that’s no excuse for paralysis in the functioning of a consumer forum and delay in appointment of a full-time president there. This sorry situation at the North Goa Consumer Dispute Redressal Forum in Porvorim led to the pendency of at least 240 consumer complaints against builders, automobile dealers, electronic companies and insurance and banking firms. While the state government appointed a president and two other members, these were temporary assignments, resulting in inordinate delays in cases and judgments. To top it, the Porvorim forum is mostly open only for half-a-day. As per Section 10 of the Consumer Protection Act 1986, the president, who is equivalent to a district judge, should be appointed on a full-time basis. The state government has appointed a regular president for the Goa State Commission, but this is not so for district forums. Why this step-motherly treatment? May 15, 2014

CONSUMER WATCH

Stemming the rot

TAKING advantage of goodness is nothing new. When the government granted a waiver to national spot exchanges from regulatory oversight in 2007, little did it realize that it would lead to irregularities like the `5,500 crore payment crisis on the National Spot Exchange Ltd (NSEL), last year. Wiser by experience, it is now contemplating withdrawing the exemption. Earlier, the consumer affairs ministry under Sharad Pawar had oversight over commodities futures and provided the exemption on the condition that the exchanges would not permit short salesâ&#x20AC;&#x201D;selling a commodity without owning itâ&#x20AC;&#x201D;and ensure that all outstanding positions at the end of the day resulted in deliveries. However, the exemption was violated by the now defunct NSEL. It allowed members to not just roll over their positions but also settle contracts after 25-36 days, in excess of the 11-day norm for spot contracts after the trading date. These violations were discovered by the Forward Markets Commission (FMC) in 2012. Subsequently, the consumer affairs ministry directed NSEL to suspend trading in July 2013 and settle all existing contracts. This, in turn, triggered a payments crisis. NSEL defaulted on several weekly payments, after which, FMC was empowered by the government to oversee settlements. The CBI is investigating the NSEL scam, including the role of senior bureaucrats in the ministry of consumer affairs to grant NSEL an exemption in 2007.

Want a smooth ride ? IGNORANCE is not bliss. Passengers who pay exorbitant bus fares without getting good service from private bus operators are often unaware that it is possible to complain to the Regional Transport Office (RTO) and consumer forums in such cases. They often receive very few complaints against private buses. All RTOs can take direct action against operators for not providing proper service if people come forward and complain. Commuters can email to the particular RTO with the number of the bus, and action will ensue under the Motor Vehicles Act. Operators can be either fined or have their permits suspended. Similarly, commuters can demand compensation from the concerned private bus owner. And, if the company refuses to pay, they can file a case in the consumer court. So, what are you waiting for? Approach the RTOs and consumer forums with your complaints. They are just eagerly waiting to give you a smooth ride.

May 15, 2014

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

2. Which part of the body is affected in trachoma? A: Windpipe B: Hair C: Eye D: Toe 3. Gita believes that God is all-powerful, i.e. ....... . A: omnipresent B: omniscient C: omnivorous D: omnipotent 4. What’s the full form of TQM? A: Total Quality Mark B: Top Quality Make C: Total Quality Management D: Tough Question Marks

Aruna

8. German silver is an alloy of ....... . A: gold, copper and tin B: silver, copper and iron C: silver, nickel and zinc D: copper, nickel and zinc 9. What’s pret-a-porter? A: Domestic servant B: Hypocrite C: Pretty girl D: Ready-to-wear 10. Which of the following words does NOT mean ‘detective’? A: gumshoe B: G-man C: gadabout D: snoop 11. A political candidate with no local connections is …… . A: carpetbagger B: yes-man C: gladhander D: godfather

5. A place where bees are kept is called … …. A: apiary B: tree-duct C: quagmire D: aviary

12. Whatever will be, will be. A: Que sera sera B: Quid pro quo C: Veni, vidi, vici D: Sine qua non

6. What does “arcane” mean? A: stupid B: a chemical C: bright D: mysterious

13. What does internet slang ‘2m’ mean? A: 2 minutes B: 2 maximum C: Tomorrow D: Too much

7. In SMS lingo, KOTL would mean ....... . A: Kick on the Leg B: Kiss on the Lips C: Kindly open the Letter

14. Which is the correct proverb? A: A bird in the hand is worth two in the bush B: A bird in the nest is worth two in the bush

SCORES

C: A bird in the sky is worth two in the bush D: A bird in the hand is worth two in the sky 15. If you fear foreigners, you have ...... . A: demophobia B: xenophobia C: gynophobia D: astraphobia 16. Some say Narendra Modi is as hard as ...... . A: nails B: graphite C: diamond D: iron 17. When US President Barack Obama said: “That tears it!” he meant ....... . A: That’s tear-jerking! B: That can be easily torn! C: You are right! D: That’s too much! 18. What do you understand when the boss’s response is “Horsefeathers!”? A. Nonsense B. Novel C. Strange D. Ingenious 19. That which cannot be corrected is…… . A: indelible B: illegible C: incorrigible D: unintelligible 20. A person speaking many languages is … …. A: verbalist B: polyglot C: lingoist D: wordsmith

ANSWERS is worth two in the bush 15. xenophobia 16. nails 17. That’s too much! 18. nonsense 19. incorrigible 20. polyglot

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!

D: Keep Ogling, Talk Less

8. copper, nickel and zinc 9. ready-to-wear 10. gadabout 11. carpetbagger 12. Que sera sera 13. tomorrow 14. A bird in the hand

WISE

1. One who uses both hands equally well is called ....... . A: amphibian B: ambidextrous C: bipolar D: dualist

1. ambidextrous 2. eye 3. omnipotent 4. Total Quality Management 5. apiary 6. mysterious 7. Kiss on the Lips

WORDLY

textdoctor2@gmail.com

May 15, 2014

PEOPLE/ mandate 2014/moods and flavors

Photos: UNI

CHILDHOOD FANTASIES Innovation works well during polls and Gaurav Sharma in South Mumbai took the cue from spiderman. He scaled walls to seek votes.

CALLING ATTENTION So what if he was up against Arun Jaitley and Amarinder Singh in Amritsar. For SL Gandhi, who campaigned on a cycle, the fight wasnâ&#x20AC;&#x2122;t over till results came out.

IS IT GAS POLITICS? It is all about choosing the right symbol in elections. Who knows it better than Shailendra Singh, the independent candidate from Lucknow. Singh had his gas cylinder symbol all over him.

OVER THE TOP Narendra Modi had supporters eating out of his hands in Uttar Pradesh. His supporters even did the monkey act in Mathura to catch a glimpse.

May 15, 2014

CANVASSING, CANADIAN STYLE A fake mayoral election campaign sign with a fictitious candidate is seen in Toronto. Mayor Rob Ford made global headlines last year when he admitted he had smoked crack cocaine.

BALLOT POWER Voting is not a right but also a privilege. And this feeling was not lost among tribals in Tripura.

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