india legal 15 august 2015 by India Legal

Royal tussles over King Solomon’s mines: Sree Padmanabha, Mysore treasure troves

Shantanu Guha Ray interviews Malegaon prosecutor Rohini Salian

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August 15, 2015

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YAKUB SHOULD WE SHOOT THE MESSENGERS? ALSO What price witness protection? Ajith Pillai talks to lawyers, judges, cops Pachauri’s ignoble exit from TERI 38

Ramesh Menon tells you how to make an online will and rest in peace 63

DEFAMATION LAW: Strange bedfellows 28

LETTER FROM THE EDITOR

INDERJIT BADHWAR

WITNESS TO TERROR his editorial is not about the pros and cons of the death penalty. There are legal luminaries, some of the best in India who have, during this century and the previous one, debated themselves hoarse on the efficacy, ethics and morality of this primeval lethal approach to deter and prevent social and political crimes and enforce obeisance. Perhaps one of the sharpest brains on this subject is Dr Surya Deva, associate professor of law, City University of Hong Kong, who held forth with luminous erudition at a seminar on “Indian Supreme Court on Death Penalty: The Hero, or Not So Hero?” He dealt—based on copious and painstaking research and without casting any aspersions on its integrity or motives—with the approach taken by the Indian Supreme Court in handing down death sentences, based on it having accepted, in principle, the standard that capital punishment should be meted out in the “rarest of the rare cases”. The eminent professor’s discussion was a scholarly critique of judicial decision-making of the apex court and whether it had been consistent in its approach. This subject has relevance to the Yakub Memon case because it threw up a startling new dimension to the use of the death penalty as a whole. Should “rarest of the rare” be the only criterion for sending a man to the gallows or do other mitigating norms— perhaps not even falling within the definition of pure law and jurisprudence—play a role in determining the fate of a criminal? Most thinking people—at least those who lead their daily lives based on a concern for other human beings and the welfare of society in general, rather than driven by blind hatred and paranoia—believe that the rule of law must never be colored by political

August 15, 2015

considerations, intimidation, misplaced sentimentality or the demands of lynch mobs. Most controversial cases which kindle national-level, high-decibel slanging matches—and the Memon case is one of them—are the real agni pariksha of our judges and judicial system. These are the occasions when they must stand up and be counted and, no matter what their point of view, make themselves heard loudly and clearly with the voice of reason and fair play as their strongest weapon.

ersonally, I consider Yakub Memon neither a hero nor a coward and the courts have decided, on the weight of evidence presented to them, that he was a player in facilitating the 1993 Bombay bomb blasts, killing hundreds of innocent civilians. And he received his comeuppance. But here is, perhaps, where the concepts of “rarest of the rare” and “extenuating circumstances” play cat and mouse with each other. The altered circumstances which have come to light, as Ajith Pillai points out in this issue’s cover story, indicate that—in a sense—Memon was the spy who came out of the cold and helped India solve the mystery that enshrouded the horrific Bombay bomb blasts. The details are in the story that follows. Very briefly, they emerged following an account by the late counter-intelligence chief B Raman—a legendary and highly respected official—who has vouched for the invaluable intelligence provided by Memon. Memon came back to India on his own volition following secret talks and spilled the beans on his own family’s involvement as well as the complicity of Pakistan in creating terror in India. This was a breakthrough for Indian intelligence beyond its wildest imagination. It is ultimately due to

this information, obtained with Yakub Memon’s help, that India has been able to establish a credible case in the world about Pakistan and ISI’s direct masterminding of terrorism in India, as well as its sources of funding. Raman’s account, interestingly, is backed by a former colleague—the Bombay bureau chief in 1993 when I was editor of India Today—the intrepid Masih Rahman who had been left mentally shattered by the Bombay blasts. Today, Rahman is indignant at the complete lack of recognition given to Yakub for his role in blowing the whistle on the Pakistan-backed terror network. Yakub has been on the ISI’s hit list and a prime target for the D-Company as a betrayer and informer. In Kashmir and Punjab, former Pakistantrained bombers and terrorists who surrendered and helped the Indian side as “friendly militants” were rewarded and protected by our forces. It is common the world over to make “plea-bargains” with former criminals and to protect informers who help law enforcement nail the larger gangs and ring leaders. That’s how mafia dons and foreign spies are mostly caught and locked up in the US. In fact, the US has a witness protection program in which thousands of former criminals who turn “state’s evidence” (approver) or penetrate terrorist gangs are given new identities and protected around the clock. Also, police investigators and officers make “deals” with criminal informants to unearth or prevent a bigger crime and inform the prosecutors and judges to show leniency to the informer if the information yields results or promising leads.

f what Raman says is true—and nobody has denied his version—then, Yakub was also a whistleblower and an invaluable witness. Was this “extenuating” or “mitigating” circumstance brought to the attention of our courts by the prosecutors? Had that been the case, then, would the “rarest of the rare” doctrine apply to Yakub Memon? These are questions which will continue to trouble us and make us think about our judicial system and law and order machinery. Does the state have a duty of standing behind a witness, whistleblower or informer or does it have a policy to offer him up for prosecution after it has extracted all the information? Under these circumstances, will informants and witnesses cooperate? What I find troubling is that despite witnesses constantly turning hostile or disappearing or dying in high-level criminal cases, we have paid scant

attention to the Law Commission’s recommendations on the subject or to these famous lines penned by Justice HK Sema in the K Anbazhagan vs Supdt of Police, (2004) 3 SCC 767] case: “Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law.” In the Best Bakery Case, the Supreme Court reiterated that the state has a definite role to play in protecting the witnesses “so as to avert the trial getting derailed and the truth becoming a mere casualty, to start with at least in sensitive cases involving those in power, those who have political patronage and those who could wield muscle and money power. As a protector of its citizens, the State has to ensure that during a trial, the witness safely deposes without any fear of being haunted by those against whom he wishes to depose,” a leading law journal recently commented. That’s not a very complicated argument. Nor is it easy to disagree with. We may never get to know—for national security reasons—the details given to our intelligence agencies by Yakub. But we need to establish even posthumously—for the sake of historical veracity—the role he played in helping unearth Pakistan’s trail of terror.

WATERSHED MOMENT The Mumbai blasts of 1993 that followed widespread riots changed the city forever

editor@indialegalonline.com INDIA LEGAL August 15, 2015

AUGUST 15, 2015

VOLUME. VIII

ISSUE. 23

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Business Editor Shantanu Guha Ray Political Editor Bhavdeep Kang Associate Editor Meha Mathur Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar

LEAD

Trust deficit Yakub Memon’s sentence sparks debate on whether intelligence agencies should be lenient on those surrendering to them. Similar is the case of witnesses who come forward to report crimes and end up paying with their lives. AJITH PILLAI reports on both issues

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August 15, 2015

FOCUS

Defame at one’s own peril Touchy leaders have often taken recourse to the defamation law. But what is more important—right to freedom of expression or right to reputation? VENKATASUBRAMANIAN V describes how Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal are on the same page regarding this draconian law

PROFILE

Indomitable Salian Special public prosecutor for Maharashtra, Rohini Salian, refuses to toe the line of the NIA in the Malegaon blasts case. SHANTANU GUHA RAY describes her steadfastness in bringing justice to the nine who were falsely charge-sheeted and arrested

28 34

PROBE

New man in TERI

TERI’s governing council replaces RK Pachauri with Dr Ajay Mathur as DG, but doesn’t mention the sexual harassment charge as the reason for his removal, writes RAMESH MENON

A million-dollar headache The newly crowned Mysore maharaja, Boston-educated Yaduveer Urs, has inherited huge properties along with numerous litigations, reports IMRAN QURESHI LEGAL EYE

Tug of war?

The Sangh Parivar debates on the direction the economy should take. While Modi is courting global capital, the RSS is harping on indigenization, reports SAMPAD PATNAIK ECONOMY

Fretting of farmers

In the backdrop of the land acquisition debate, farmers are taking their fight for land to the courts. PAMELLA D’MELLO writes about the struggle of Goa’s cashew farmers against an upcoming golf course. And KAUSHIK JOSHI reports on an interim relief for farmers of Devbhoomi Dwarka district fighting Essar STATES

Kashmir’s flooding AASHA KHOSA writes that torrential rains and repeated flooding of Kashmir Valley have played havoc with the state’s economy, making vegetables costly and ruining the carpet industry PROPERTY

Gold up for grabs?

Where there is a will…

If the thought of preparing a will seems laborious, rest easy. There is an easy and cheaper way out in the form of an online will, says RAMESH MENON ENVIRONMENT

Concrete proposals

The property boom and renovation of buildings leaves behind mountains of waste. PAPIA SAMAJDAR reveals new draft rules regarding disposal of this waste

HUMAN RIGHTS

Dance therapy

A danseuse starts a novel dance experiment in Alipore jail to reform inmates and teach children. SUJIT BHAR reports on the therapeutic effect of this effort SOCIETY

A roof over my head

They are educated and have the wherewithal to buy a home. Yet, many Muslims are finding the doors shut on their faces. This, says SABIHA FARHAT, is the biggest cause of ghettoization

Following the temple gold monetization scheme of the Modi government, what will happen to the wealth of Padmanabhaswamy Temple, the world’s richest temple? JACOB GEORGE probes

REGULARS

POLITICS

Edit................................................................................4 Ringside........................................................................8 Quote-Unquote.............................................................9 Supreme Court............................................................10 Courts......................................................................... 12 National Briefs.............................................................14 International Briefs.......................................................78 Is That Legal............................................................... 80 Wordly Wise.................................................................81 People......................................................................... 82

Cover Design: ANTHONY LAWRENCE

INDIA LEGAL August 15, 2015

Aruna

VERDICT The best way to get a bad law repealed is to enforce it strictly. â&#x20AC;&#x201D;Abraham Lincoln

August 15, 2015

QUOTE-UNQUOTE

“Ye Dilli ki badkismati hogi (It will be Delhi’s misfortune)

“Even if my husband does anything wrong, he too will not be spared.”

— Delhi Police Commissioner BS Bassi, on whether the police should be under the control of the state government, in The Times of India

—The new chairperson of Delhi Commission of Women, Swati Maliwal, in The Indian Express

“After Emergency, the people of India voted Indira Gandhi as the PM. If we have to apologize, then people of India will also have to apologize….” —Former Union Minister Salman Khurshid, responding to a query whether Congress should admit its guilt of having imposed Emergency, in The Times of India

“Even if the militants had taken my daughter hostage, I would not have released a single terrorist.” —Former J&K CM Farooq Abdullah, referring to the center releasing terrorists in exchange of Mufti Mohammad Sayeed’s daughter, in 1989, in The Financial Express

“The Oxford debate has a huge significance. It is good that Shashiji was there ... What he spoke there reflected the sentiments of the citizens of India”

“Those who talk about Amma’s health, I am warning you...your tongue will be cut off.” —AIADMK MP R Sundaram, on queries from the opposition about Jayalalithaa’s health, in The Indian Express

“The Vyapam scam in Madhya Pradesh has forced all of us to hang our heads in shame.”

—PM Modi, praising Congress MP Shashi Tharoor for his speech in Oxford on the need for British reparations for colonial rule, in The Times of India

“They have enjoyed rosogollas for 35 years and left only gollas (zeros) for the people. The people of Bengal will never pardon them”

— Former Himachal Pradesh CM Shanta Kumar, in a letter to BJP chief Amit Shah, in Hindustan Times

—West Bengal CM Mamata Banerjee, criticizing the CPM at a rally in Kolkata

INDIA LEGAL August 15, 2015

SUPREME COURT

Kohli asked to pay `25 lakh HE eight-month-old legal battle between Bollywood screenwriter Jyoti Kapoor and director-producer Kunal Kohli over the yet-to-bereleased film Phir Se has come to an end. The apex court has asked Kohli to pay her a compensation of `25 lakh in an out-of-court settlement. The court also asked Kohli to pay `35 lakh to India Stories Media and Entertainment Pvt Ltd, as well as give due credit to Kapoor in Phir Se. It

allowed Kohli to release the film after paying the amount. Kapoor and India Stories Media and Entertainment Pvt Ltd had gone to court accusing Kohli and a producer at Bombay Film Company Pvt Ltd of plagiarism and breach of trust. They alleged that the storyline of Phir Se had uncanny similarities with Kapoor’s script RSVP, the script of which she claimed to have discussed with Kohli at some point of time.

Relief for life convicts tate governments’ plea that they be allowed to use their power of remission for life convicts who had already served 14 years in jail was accepted by the apex court. However, the court laid down certain restrictions. States can’t use the remission power in case of rape-cum-murder convicts, for convicts whose jail term has already been mentioned by the apex court or the high courts, where the accused is serving a life term under a central law, and where the life convict’s case had been probed by a central investigative agency such as the CBI. The court also ruled that the remis-

sion power can be used only if the convict seeks freedom. An interim order of the apex court had forbidden the Tamil Nadu government from using its power of remission. The order was issued after the Tamil Nadu government decided to release Rajiv Gandhi assassination convicts, Perarivalan, Murugan and Santhan following the commutation of their death sentences into life imprisonment by the apex court. They had spent more than 20 years in jail. The Tamil Nadu government also wanted to set free four other convicts on the same ground. The verdict will not apply to them.

Drug pricing criticized inding fault with the center over its pricing policy of essential drugs, the apex court observed that life-saving medicines were not reaching the poor due to skyrocketing prices, aggravating their misery. It was hearing a petition of All India Drug Action Network, an NGO, against the

F 10

August 15, 2015

drug pricing order of the center. Pointing out that some essential medicines were being sold at exorbitant rates by the center, the court wanted the Department of Pharmaceuticals under the Union Ministry of Chemicals and Fertilizers to revisit its price-fixing formula and come up within six months with a price order that is reasonable. It could do so after getting views of all parties. The court also asked the NGO to make a presentation to the center and directed the center to submit its response.

No reservation for Jats

Take steps on illegal migrants HE center and the Assam government were left red-faced in front of the Court over illegal migrants. Glaring failures came to light in a report on measures taken to stop illegal migrants sneaking through the Indo-Bangladesh border. The apex court itself had appointed a commissioner to prepare the report. Observing that merely making rules was not enough to address the critical issue, the court felt that nothing concrete had been done. It noted that work on total fencing of the international border was still pending and there was a shortage of BSF and police personnel needed to thwart illegal migrants from entering India. The court asked both the center and the state to improve border roads and electrify flood lights on border areas. It also wanted the government to assess the ground reality.

HE Supreme Court declined the center’s plea to reconsider its judgment on granting OBC status to Jats. In March this year, it had annulled the government’s decision to reserve seats for Jats in jobs and educational institutions under the OBC category in nine states. While setting aside the review petition filed by the center, the court ruled that there was no reason, prime facie, for reconsidering the verdict. It also dismissed another petition by a group of Jat students, who sought reservation benefits on the grounds that they had passed various levels of a bank recruitment exam as OBC candidates, but were yet to get appointment letters.

Checking the ordinance route aking cognizance of a petition filed by a group of farmers’ NGOs that questioned the Modi government’s move to bring in the land acquisition law through the ordinance route, the Supreme Court asked the center to submit its response within four weeks. The petition alleged that the center was trying to impose laws on the nation through ordinances by ignoring parliament. The court wanted to find out whether the constitution allowed the government to re-promulgate the land acquisition ordinance. The petition pointed out that the government was throwing constitutional norms to the wind by going for “ordinance raj”. It held that only parliament had the power to make laws, and the land acquisition law was repromulgated three times by the center. This was after it was first promulgated in December last year, without getting the go-ahead from parliament. The petition alleged that the center was not even bothered that it had been issued a notice on the issue by the apex court in April this year.

Criminal proceedings against Mallya AKING a dim view of UB Group Chairman Vijay Mallya defying summons of the Enforcement Directorate (ED) in a case where he has been accused of FERA violation, the Supreme Court sanctioned criminal proceedings against him by the ED. It also asked him to pay `10 lakh for trying to evade the legal process. Mallya had pleaded against criminal proceed-

ings by the ED. In a letter to the agency, he had cited an extremely busy schedule for failing to appear before the ED and sought a date that suited both parties. The court took strong objection to the tone and tenor of the letter and felt it reeked of arrogance. — Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL August 15, 2015

COURTS

No action on Delhi govt ad HE Delhi High Court refrained from taking any action against the Delhi government for a July 12 TV advertisement highlighting Arvind Kejriwal and his party, as well as showing the center in poor light. On the contrary, it wanted to know whether the center had made any progress in implementing the regulation guidelines on government advertisements, as decided by the Supreme Court. The court was taking up a petition filed by an NGO that wanted it

to ask the Delhi government to pull out the advertisement with immediate effect and direct it to abstain from such brand-building advertisements. The petition also wanted that the cost of the ad be recovered from Kejriwal. It ruled that an order on the issue will be passed only after receiving the center’s response and asked the latter to file an affidavit within one week. The matter will again be taken up by the court by August 3.

CBI to probe Yadav case HE Lucknow bench of the Allahabad High Court has asked CBI to take over the case of Yadav Singh, former chief engineer of Noida Authority, in view of gravity of allegations, intricacies of the probe and limitations of the Judicial Commission set up by the UP government. The court was responding to a PIL that pleaded for a CBI probe. Property documents and a huge stash of black money were found at the establishments of Singh during income tax raids last November. The state government argued that a judicial commission was already probing the case, but was told that it was set up in 2015 only after the court’s orders. The court observed that the case was moving nowhere and Singh enjoyed political patronage; therefore a CBI probe was necessary. Even the center wanted CBI to take over the case, but its request was turned down by the state government.

August 15, 2015

Can’t ignore your stepmother T is common to find sons not giving a damn for their stepmothers. But they can’t escape responsibility, especially if she is childless, according to the Chhattisgarh High Court. The court went by the judgment of the family court in Kanker district while dealing with a petition of two stepsons that contended that Section 125 of the CrPC, which deals with maintenance for wives, children and parents, does not take into account the stepmother. The family court had directed the petitioners to pay maintenance to their stepmother by the family court. The amicus curiae disputed the point made by the petitioners. It held that they could not claim relief under Section 125, which was benevolent by nature. He observed that the stepmother was childless and needed to be looked after as she was staying alone. Considering the merits of the case, the court felt that there was nothing untoward in the verdict of the family court.

Take a decision on Sainik Farms

AKING a serious note of the lethargic attitude of both the center and the Delhi government in deciding the fate of Sainik Farms in South Delhi, the Delhi High Court observed that the issue can’t be allowed to drift further and there has to be a solution. It was hearing a petition filed by an NGO that apprised the court of rampant illegal constructions in the colony.

The court pointed out that the state government must decide whether it wants to demolish Sainik Farms or regularize the colony. The Delhi government was given two weeks to send a concrete proposal (either on demolition or regularization) to the Ministry of Urban Development, while the ministry was directed to submit its views to the court within two weeks of receiving the proposal. The court will again take up the matter on August 19.

New meaning to “motherhood” ETTING the stage for a relook into the concept and meaning of “motherhood”, the Delhi High Court ruled that any woman who becomes a mother by opting for the surrogacy route must be treated at par with a “biological” mother. The ruling came after a petition was filed by a government employee who was a “commissioning” mother. Her application for maternity and child care leave was rejected because she had not given birth to the child herself. The court sanctioned her leave while giving a new interpretation to

Rule 43 of Central Civil Services. The judgment also underlined the need for framing of maternity leave rules for working mothers in the government. The court observed that it would be myopic to simply restrict maternity leave to biological mothers, especially when rapid advances have been made by science in the area. It ruled that “commissioning” mothers must be included in the ambit of “maternity”. It felt that they were no less significant in a mother-child bonding and were the principal caregivers after the child was born.

Shoddy affidavits

OPS drafting affidavits on their own is uncalled for, a division bench of the Bombay High Court pointed out in a judgment. Noticing that the documents were riddled with grammatical and legal errors and the language was below par, the court observed that it might lead to wrong judgments. The court also took the cops to task for showing initiative and being firm on framing affidavits. It also did not appreciate that

changes suggested by public prosecutors were not welcomed by police officers. The observation was made in a case where a Solapur resident was kept in a police lock-up. The task of drafting affidavits is best left to advocates, the court insisted. It wanted that concerned policemen must get their affidavits vetted by prosecutors. — Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL August 15, 2015

NATIONAL BRIEFS

BCCI to appeal in high court THE BOARD of Control for Cricket in India (BCCI) has hinted it could appeal to the high court against the recent decision of a lower court in Delhi, exonerating tainted cricketers. BCCI president Jagmohan Dalmiya, it is reliably learnt, has indicated that the cricket board could appeal to the high court to challenge the lower court's decision. Dalmiya has told board secretary Anurag Thakur that the move was necessary for the Board’s image and also its ability to manage corruption in the game. BCCI has asked former Delhi Police Commissioner Neeraj Kumar, now part of the Board’s

anti-corruption unit, to keep up the pressure on the investigating team of Delhi Police, and those from Chennai and Mumbai Police and “seek fresh leads” that would help the BCCI if it appeals in the high court. Besides the three mega cities, cops from cities like Jaipur and Ahmedabad— who had probed charges of spot-fixing against the cricketers—could also be contacted to get “fresh evidence”. “Efforts are on to pick up important threads from the Mugdal Committee report, more importantly, in the Annexure papers, to prepare for the case in the high court,” a senior BCCI official said on conditions of anonymity. There are over 30 files of Annexures in the Mudgal Committee report.

Indira Jaising files PIL on selection process SEEKING THE termination of the arbitrary style of designating senior lawyers in the Supreme Court, senior advocate and former additional solicitor-general, Indira Jaising, has filed a PIL in the apex court. She has challenged the lack of transparency in the selection procedure and demanded that lawyers be selected across the entire practice, without any prejudices. Specialization areas like PILs, environment law and human rights are not given due importance in the process so far. Jaising argued for a transparent and performance-based selection process of senior lawyers. She claimed that certain senior lawyers are designated from states to which they don’t belong to, nor have they ever practiced there. The Supreme Court, in its response accepted the suggestions, and asked the counsels to express their opinion.

August 15, 2015

Poor get punished, rich escape

A RECENT study has corroborated the grim truth that the legal system is skewed against the poor. Data collected from interviews with 373 death-row convicts found that around three-fourths of them belonged to either the backward classes or the religious minorities. A major reason for this is their inability to hire competent lawyers to fight for them. The study was conducted by the students of National Law University, Delhi, with the support of the Law Commission. The study also revealed that around 42 percent of those sentenced to death by the trial courts belonged to UP and Bihar.

Meanwhile, the cricket board has conveyed its inability to grant pacer S Sreesanth and others permission to play even club-level cricket. “Sreesanth called a number of BCCI officials but was told that the ban stays and he will have to wait outside the ground. He will not be able to play for private clubs,” a BCCI official has conveyed the highly emotive fast bowler who was banned for life.

One rank, one pension for judges ACKNOWLEDGING THE anomalies in the pension scheme for judges, the union government has decided to introduce a “one rank, one pension” scheme for them. In the present scenario, the number of years served as a judge is considered the main factor while calculating pension. Since those who come from the judicial services put in more years of service as judge compared to those who are selected from the bar, they get better benefits. To remove this contradiction, the government is set to bring a bill in the Monsoon Session of parliament to amend the High Court Judges (Salaries and Conditions of Service) Act, 1954. Last year, the Supreme Court had mandated 10 years’ practice as an advocate as the qualifying criteria for the appointment of judges.

THE HIGH COURT OF MEGHALAYA AT SHILLONG ADVERTISEMENT Dated, Shillong, 30th June, 2015 No. HCM.II/109/2015/1819 _ Applications in the prescribed format are hereby invited from citizen of India as defined under Article 5 of the Constitution of India as prescribed under schedule F(C)(1)(a) of Meghalaya Judicial Service (Amendment) Rules 2007 and Meghalaya Judicial Service (Amendment) Rules 2012, to fill 7 (Seven) vacant posts ( 3 posts reserved for Schedule Caste & Schedule Tribe & 4 posts for General Category) in Grade II of Meghalaya Judicial Service in the scale of pay of Rs. 39,530-920-40450-1080-49090-1230-54010/pm. plus other allowances as admissible under the Rules from time to time. Applicant must be a graduate in law having not less than 5 years of practice as an Advocate in the Courts of Civil and Criminal jurisdiction, who are not less than 30 years and not more than 45 years of age in case of General category and 48 years in ase of candidates belonging to Schedule Caste and Schedule Tribes as on the last date of filing the application. The applicant must have the knowledge of Khasi, Jaintia and Garo language. The application complete in all respects should reach the office of the Registrar General, High Court of Meghalaya on or before 27th August, 2015. Belated and incomplete applications will not be entertained. Attested copies of certificate of proof of his/her educational qualification, Bar Council’s registration, age and practice certificate along with 2 (Two) copies of recent passport size photograph duly attested, accompanied with a Demand Draft of Rs. 500/-(Five Hundred) only for general candidates, Rs. 250 (Two Hundred Fifty) only in the case of SC/ST candidates from a Scheduled Bank drawn in favour of “Registrar General, High Court of Meghalaya” payable at “Shillong” should be submitted. The written test/viva voce test and all other conditions for appointment shall be as per the Rules laid down in Meghalaya Judicial Service Rules (As Amended). The candidates shall have to appear in the written test / examination and interview at their own expenses as and when called for. Application forms and syllabus may be downloaded from the official website of this High Court (meghalayahighcourt.nic.in). General Information : 1. Please attached attested copies of certificates, two (2) recent passport size photograph along with a self address stamped envelop. 2. The last date for submission of application will be on the 27th August 2015 during office hours at the office of High Court of Meghalaya at Shillong. Applications received after the last date of submission due to postal delay or any other reason will be summarily rejected. 3. The “last date for submission of application”, shall also be the date of determining the eligi bility criteria of the Candidates for the posts. 4. No. TA/DA shall be paid to the application for attending the examination and personal interview. 5. Incomplete Application shall be rejected. 6. For further details, the Registry of the High Court of Meghalaya may be contacted during office hours. Hon’ble the Chief Justice reserves the right to relax any conditions mentioned in this Advertisement. By Order,etc. Sd/-

REGISTRAR

LEAD/ Yakub Memon Case

A BREACH OF TRUST?

Getty Images

Yakubâ&#x20AC;&#x2122;s death sentence has raised questions about the way probe agencies have made fugitives surrender after giving promises. With agencies washing their hands off him now, who will trust them in future? By Ajith Pillai

August 15, 2015

HE death sentencing of Yakub Memon raises a pertinent question. Should a deal brokered by the police or intelligence agencies that precedes the informal surrender by an accused be honored following his or her arrest? And, in good measure, though not directly related, it also puts a question mark on the manner in which the system allows witnesses to be coerced by vested interests to derail a

case. In several such instances, the state, the police and the prosecution are guilty of hiding certain truths and backing the side they favor to subvert justice. This is the reason why several judicial experts, including judges and lawyers, have been strongly recommending the enactment of a law that provides for comprehensive witness protection. (See accompanying story.) As for Yakub Menon, the prosecution’s charge, upheld by the TADA court in Mumbai, was that he conspired, aided and abetted in the planting of 13 bombs across Mumbai in 1993, which killed 257 and injured 713. He is said to have worked in tandem with his brother, Tiger Memon, one of the principal accused in the 1993 Bombay blasts case, who, along with Dawood Ibrahim, another key conspirator, are still absconding. The court sentenced Yakub to death in 2007. He is the only accused in the case to be handed the death penalty. The date of his execution was slotted for July 30 when he approached the Supreme Court for one last time. RAMAN’S REVELATIONS Under normal circumstances, Yakub’s case would not have attracted the public attention it has or courted controversy. But it did

because of the publication of a column written by the late B Raman, who headed the counter terrorism division of the Research and Analysis Wing (RAW), India’s external intelligence agency, when Yakub Memon had been persuaded to surrender in 1994. Raman had penned his revelations in 2007 and submitted it to news portal rediff.com after the TADA court had pronounced Yakub’s death sentence. However, Raman requested the website to withhold publishing his views since others “might escape as a result of this article if the higher court holds that the entire case has been vitiated as a result of the prosecution concealing a material fact from the sentencing court”. On July 24, rediff.com printed Raman’s column posthumously and it kicked up a storm. What comes through from Raman’s column was a rumor that did the rounds among crime reporters in Mumbai when the police dramatically announced that Yakub had been arrested at Old Delhi Railway Station in January 1994. It was then said that the police had worked out a deal and that Yakub was promised a lenient punishment if he cooperated with the investigations. Raman’s revelations more or less confirm this. According to him, Yakub, who had fled with other members of the Memon family

“The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to… surrender constitute, in my view, a strong mitigating circumstance....” —B Raman in a column for Rediff.com

INDIA LEGAL August 15, 2015

LEAD/ Yakub Memon Case

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reputation, confirms that “the entire operation was coordinated by me”. According to him, the then prime minister, Narasimha Rao, was also kept in the loop. Crucially, Raman goes on to say: “The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.” In short, Raman’s plea was that Yakub should have been given a lesser penalty than what he was awarded.

LIMITING THE OPTIONS Indian agencies are struggling to bring back those wanted by law, notably Dawood Ibrahim (top) and former BCCI chief Lalit Modi

August 15, 2015

to Pakistan at the insistence of his brother, Tiger, was “informally picked up in Kathmandu… driven across Nepal to a town in Indian territory, flown to Delhi by an aircraft of the Aviation Research Centre (RAW’s air support wing) and formally ‘arrested’ in Old Delhi by the investigating authorities and taken into custody for interrogation.” The RAW officer, who enjoys an impeccable

MORAL SUPPORT Ever since the column became public, politicians, from BJPs Shatrughan Sinha to Congress’ Mani Shankar Aiyar and CPM’s Sitaram Yechury, have pleaded for a re-look at Yakub’s sentence. Former Supreme Court judge HS Bedi has suggested that the court should take suo moto cognizance of Raman’s column, while another former justice of the apex court, Markandey Katju, has said that there was “gross travesty of justice” in Yakub

Memon’s case. Several eminent lawyers, politicians, former judges, actors, writers and human rights activists have signed a mercy petition and submitted it to President Pranab Mukherjee, urging him to stay Yakub’s execution. From within the intelligence community, several former officials vouch for Raman’s credibility and say that what he has revealed must be taken seriously. AS Dulat, former RAW chief and National Security Advisor in the Vajpayee government, says: “It is brave of B Raman to speak the truth, I admire his courage...I totally believe what Raman says, I have no reason not to believe him.” Dulat should know. In his book Kashmir: The Vajpayee Years, he talks of how he had opened back channel negotiations with separatists in Kashmir, befriended those who had taken to the gun and persuaded them to give up militancy and return to the mainstream. They were given concessions, sops and were even rehabilitated. All this was done informally and was based purely on trust. The big question that Raman’s column raises is, whether there was a breach of trust in Yakub Memon’s case. INFORMAL ROUTE This becomes pertinent when we factor in several cases where intelligence agencies may be employing the informal route to bring back those wanted by the law like, for

instance, Lalit Modi. In fact, every now and then, one hears demands being raised to bring back Dawood Ibrahim and other criminals lodged in Pakistan. Since extradition from that country is virtually impossible, the only options are to capture them through a commando operation and run the risk of triggering a war with our neighbor or to work the back channels and make them surrender. But after Yakub’s experience, any informal assurances made by negotiators—including that of a fair trial—may lack credibility. Why, even those brought back from PoK under a formal arrangement approved by the government, are arrested on trumped-up charges after they have crossed the border. Manisha Sethi’s book, Kafkaland—Prejudice, Law and Counter Terrorism, cites the illustrative example of 45-year-old Sayed Liyaqat Shah. His ordeal began in March 2013 when he was arrested at the Indo-Nepalese

SEEING REASON (L-R) Justice Markandey Katju calls Memon’s death sentence a travesty of justice; Former RAW chief AS Dulat says there’s no reason not to believe B Raman’s claims on Rediff.com

Was the informal understanding between Yakub Memon and B Raman at the time of his surrender never communicated to the investigating agencies? Or was this conveniently kept under wraps? Anil Shakya

INDIA LEGAL August 15, 2015

LEAD/ Yakub Memon Case

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PIB

SUPPORT GROWS Politicians cutting across party lines, from BJP’s Shatrughan Sinha (top) to Congress’ Mani Shankar Aiyer have asked for a re-look at the death sentence

August 15, 2015

border and charged with plotting attacks on targets in Delhi during the Holi festival. Shah was accompanied by his wife and daughter and was returning to India from PoK under the Rehabilitation and Surrender Policy of the J&K government, instituted three years ago. Under it, Indian citizens who had turned to militancy and had crossed the LoC could return to Kashmir once they declared their intent to lay down arms and return home. Those opting to surrender and return are subjected to detailed checks by RAW, IB and the J&K police before their names are

cleared. Shah was given the green signal after several months of scrutiny. But despite that, he was arrested by the Special Force of the Delhi police at the Sannauli check post, an entry point on the Indo-Nepal border. It was alleged that he was on the way to Delhi to pick up guns, ammunition, including hand grenades, and maps (indicating his targets) from a guest house in Old Delhi. The police charge was that he was being directed by his handler in Pakistan, who was coordinating the entire operation. After the National Investigating Agency (NIA), which looks at terrorism-related cases, took over the investigation, it concluded that the police charge had no substance and had been cooked up. The guns and ammunitions were planted in the guest house by a police informer who was absconding. Shah was declared innocent in January 2015, almost two years after his arrest. NOT COMMUNICATED? To come back to the Yakub Memon case, there are several imponderables. Was the informal understanding arrived at between him and Raman at the time of his surrender never communicated to the investigating agencies which took charge of him after he was “arrested” in Delhi? Or was this conveniently kept under wraps? Raman’s column suggests that the prosecution may have done so. To quote: “In their eagerness to obtain the death penalty, the fact that there were mitigating circumstances do not appear to have been highlighted.” Justice PD Kode of the Mumbai TADA court, who pronounced Yakub’s death sentence, says that he was never informed of any “so-called surrender” or any agreement arrived at. This brings up the other question —why did the defense lawyers refrain from bringing up this aspect in court? Some legal experts point out that they may not have because there was no evidence to prove that anything was agreed upon. Does Raman’s posthumously published column constitute any evidence? Perhaps it doesn’t, but it provides proof, in a manner of speaking, of a certain factor that mysteriously didn’t figure in the quantum of punishment that Yakub Memon was given. IL

LEAD/ Witness Protection

Eliminating Witnesses MYSTERY DEATHS (Clockwise from top) Anshul Sachan, Pramod Sharma, Akshay Singh and Namrata Damor have lost their lives in the Vyapam scam

August 15, 2015

HE multi-layered and shocking Vyapam scam in MPâ&#x20AC;&#x201D;in which over 40 witnesses have died so far under mysterious circumstancesâ&#x20AC;&#x201D;has once again brought into focus the vulnerability of those testifying before the law. More often, extreme coercion (including death threats) and financial persuasion are used against witnesses to make them retract or alter statements made to the police. Worse, if seen as obdurate or expendable, they are simply bumped off and spared the trouble of appearing in court. The people who come forward to testify are often targeted by the accused, who are economically and politically powerful, and very few manage to withstand the pressures put on them. Unfortunately, providing adequate protection and ensuring the safety of those who have to depose in court has never been given the priority it deserves. In fact, many jurists admit this is a serious blotch in our criminal justice system.

Those who testify against the powerful need to be protected. But can this be done in the absence of a formal protection program backed by a law? By Ajith Pillai

In the Asaram Bapu case, nine witnesses have been reportedly attacked by his men and three key witnesses killed. He is the main accused in a rape case and now lodged in Jodhpur jail.

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Several high-profile cases have had their share of hostile witnesses. The Jessica Lal murder, the Salman Khan hit-and-run case, the acquittal of Varun Gandhi for his hate speech in 2009 and the Nitish Katara murder trial are just a few examples. At another level, you have self-styled godman Asaram Bapu, who is the main accused in a rape case and currently lodged in Jodhpur jail. Nine witnesses have been reportedly attacked by his men and three key witnesses killed. Those who deal closely with the legal system say that the targeting of witnesses and buying their silence is a problem that needs to be addressed in an urgent manner. India’s legal bodies have always been aware of the problem. Periodic law commission reports since the 1950s have emphasised the need to protect witnesses. The National Police Commission has underlined this fact. And the 2003 report of the committee headed by Justice VS Malimath, which addressed reforms in the criminal justice system, concluded that when it came to depositions in court, the “major problem is about the safety of witnesses and their family members who face danger at different stages. They are often

threatened and the seriousness of the threat depends upon the type of case and the background of the accused and his family.” The committee recommended that “while many countries in the world have enacted laws for witnesses’ protection, there is no such law in India. The time has come for a comprehensive law being enacted for protection of the witness and members of his family”. Judges of the Supreme Court and high courts have also pushed for better protection of witnesses. Justice Arijit Pasayat, who was part of the apex court bench that delivered the judgement in the Zahira Shaikh vs State of Gujarat case in April 2004, touches upon the urgent need to have a witness protection programme. One that attracted much attention pertains to the Best Bakery case in which the establishment run by the Shaikh family in Vadodra was torched by a mob during the 2002 Gujarat riots. Fourteen people died in the carnage. However, those accused were acquitted by a trial court after witnesses, including Zahira, turned hostile. She later

CONCURRING VIEW (L-R) Former Supreme Court judge Justice Arijit Pasayat and former chief justice of India VN Khare want a witness protection program

INDIA LEGAL August 15, 2015

LEAD/ Witness Protection

Several high-profile cases, such as the Salman Khan hit-and-run case, the Jessica Lall murder and the Nitish Katara murder trial, have had their share of hostile witnesses. filed affidavits alleging that she was forced to retract under coercion.

asayat’s observations in this case are noteworthy: “If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. Time has become ripe to act on account of numerous experiences faced by Courts of witnesses turning hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings...The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trials getting tainted and derailed and truth becoming a casualty.” Those were indeed strong words. But lawyers point out that without a legal framework in place, providing protection to witnesses is the exception rather than the rule.

August 15, 2015

According to rights activist and lawyer Vrinda Grover, as things stand, witnesses are seen as people who can be manipulated to gain easy acquittal for the accused. She cites the 2013 Muzzafarnagar riots cases. “The open talk in the bar among lawyers is about how cases will be dropped once the witnesses are persuaded or compromised to withdraw their testimonies. It almost seems as if the accused and their lawyers are waiting for witnesses to turn hostile.” According to her, even when a request for protection is submitted, it is often rejected since no proof can be put forward to substantiate the apprehensions of a witness. The “power differential,” she says, between the accused and the person deposing is a crucial aspect which is never factored in. “When a powerful person is the accused, an ordinary citizen who witnessed a crime becomes vulnerable to various pressures and threats. How can one offer proof of coercion? It will be one person’s word.” True, a threat says another lawyer, is not conveyed as a signed document admissible in court as evidence. That said, everyone is agreed that providing protection is vital, but does the police have the infrastructure to ensure cover to every vulnerable witness? AA Khan former IG police, Maharashtra, who famously headed the Anti-Terrorist Squad of the state in the 1990s says the force simply doesn’t have the resources. “Even if protection is provided, all you get are two constables. There is no concept of looking after the witnesses and rehabilitating them as they do in the US in very sensitive cases. A new law must not only be enacted but there must be a dedicated force under a marshal to handle witness security. It must be a force that reports directly to the judiciary and should not be under the police. That is the only way out.” He feels that only the creation of such a judicial arm will be credible and it should be independent enough of the police, which more often than not, is the prosecuting agency.

Under English law, influencing or threatening a witness before or after evidence is given, amounts to contempt of court. The legal system also protects those helping with the investigation of a crime. In the US, the law provides for relocation and other protection of a witness or a potential witness deposing in a case involving a serious offence or organized crime. The attorney-general decides on whether a person testifying requires protection from bodily injury and to assure his or her health, safety and welfare. In a large number of cases, witnesses have been protected, relocated and sometimes, even given new identities. The program assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient.

everal jurists in India have been recommending a similar witness safety program in India. Former chief Justice of India VN Khare has been calling for reforming the criminal justice system and protecting witnesses. He told India Legal: “I have been stressing the need for witness protection since 2004 but unfortunately nothing has been done—nothing whatsoever.” In a signed article in a leading newspaper in 2006, he reiterated that like in the developed countries, “in at least some sensitive cases, witnesses should be provided protection. This is particularly desirable in India because of long pending trials in the courts. Under protection, the witness will not be fearful. It will be difficult to lure him or her by money and other allurements”. In 2013, the Delhi government submitted a draft of the Delhi Witness Protection Scheme to the high court. This was in response to a court order that such a scheme be put in place following witnesses turning hostile in the Jessica Lall and Nitish Katara murder cases. The draft has to be approved by the state cabinet and the assembly. The Kejriwal government has agreed in principle to grant the necessary approval, notify the scheme and get

the nod from the legislature. Under the proposed scheme, witnesses can give their testimony before a judge or an investigating agency in camera without fear of being coerced or influenced. The threat perception analysis of the witness will be conducted by an additional commissioner of police and two senior officers. Their report will determine the level of security to be provided. Personal security cover will be arranged and their homes kept under 24x7 surveillance. A special cell of the police is to be set up for protection of witnesses. According to lawyers, one of the key reasons why witnesses are susceptible to being influenced is the slow disposal of cases. The time taken, from recording of the witnesses’ statement to the eventual trial, could be

FAVOURING THE GUILTY (Above and below) The star witness in the Best Bakery case, Zahira Sheikh, turned hostile leading to acquital of the accused

INDIA LEGAL August 15, 2015

LEAD/ Witness Protection

WAKE-UP CALL (L-R) Nitish Katara and Jessica Lall cases forced the Delhi government to pitch for a witness protection scheme

“The open talk among lawyers is how cases will be dropped once the witnesses are persuaded or compromised to withdraw testimonies. It seems as if the accused and their lawyers are waiting for witnesses to turn hostile.” — Vrinda Grover, activist and lawyer

August 15, 2015

several years, making it easy for vested interests to persuade the witness to back off. According to one lawyer, the entire business of coming to court becomes long-drawn and the witness becomes tired of this interfering with his normal life. Some police officials believe a system must be evolved by which the statement of the witness is “secured” and cross-examination is completed within reasonable time after the statement is recorded.

he Fourth National Police Commission report touches upon the trauma of a witness by quoting an input sent to it by a senior district and sessions judge: “A prisoner suffers from some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time ‘foolish’ enough to remain there till the arrival of the police.” What’s worse is that witnesses are not even suitably compensated for the trouble they take to obey court summons. Grover says that the procedure for claiming even travel allowance is cumbersome. “The concept of paying for the travel of the witness does not exist among prosecutors or the police. It is presumed that those coming to court will fend for themselves or will be brought by the police or vested interests.” Former CBI director Joginder Singh told India Legal that the treatment meted out to witnesses is pathetic and a new law is

required to protect those who agree to testify. “If you ask me, many people would think that it is foolish to become a witness. You are not only treated shabbily and summoned to court and asked to wait all day to be told that the case will not be heard but you may also have to face threats from the goons of the person you are testifying against.” But senior lawyer RK Anand says a new law to protect witnesses is not the answer. “More than a law, what is required is to bring in modern investigation practices that are not so reliant on witnesses. This would mean better collection of material evidence by the police from the crime scene. It would mean employing the services of capable and reliable forensic experts. We have to modernise the way we investigate cases.” Anand says this is the trend one finds in the West and since evidence is gathered meticulously, there is no need to examine and cross-examine witnesses and cases are thus disposed off in no time. That suggestion would certainly lessen the load on the courts. But the consensus is that a totally witness-free scenario is unlikely—it has not even been achieved in the West. Therefore, when witnesses are involved, it would be best to insulate them from outside pressure that prompts them to turn hostile. In sensitive cases like communal riots or acts of terrorism, witness protection, many feel, has to be formalized and not taken up in an arbitrary case-by-case manner. Today, it is often done to suit the convenience of the police and their political masters. IL

FOCUS/ Defamation

Watch your

WORDS! Politicians and journos have often been at the receiving end of defamation laws. A case in the Supreme Court hopes to limit the potential of this legal weapon, which can be used to curb free speech By Venkatasubramanian V

HE constitution guarantees freedom of speech and expression to every citizen. But seeking its full potential involves facing challenges of various kinds, some within the constitution itself. Defamation is one of the grounds which justifies restricting this freedom. By making defamation an offense, the law aimed to protect the right to reputation. But whether or not particular words are defamatory is a question of fact, not law. Experts suggest that a statement must be read as a whole and in its particular context to test its defamatory character. But trial courts, most often, were swayed by the claims of plaintiffs that their reputation suffered, and invoked Section 499 of the IPC in order to harass the defendants. A case currently being heard by the Supreme Court seeks to limit the potential of

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defamation. The lead petitioner in the case is BJP leader and former union minister Subramanian Swamy. He has been waiting for this historic opportunity so that he can test the constitutionality of legal provisions making defamation a criminal offence punishable with imprisonmentâ&#x20AC;&#x201D;as enshrined in Sections 499 and 500â&#x20AC;&#x201D;for more than two decades. To Swamy, each such opportunity unfolded when those complaining of his allegedly defamatory remarks dragged him to the courts, invoking the punitive power of these provisions. But they had always backed out or made peace with him in order to avoid the extreme possibility of the courts striking down these draconian provisions. All these changed, however, with Swamy filing a petition in the Supreme Court last year, challenging the constitutionality of these provisions. It is to his credit that his lead petition is now joined by 24 other petitioners of various political hues, including Congress vice-president Rahul Gandhi, Delhi CM Arvind Kejriwal and journalists. The case is being heard by a two-member bench of Justices Dipak Misra and Prafulla C Pant. It is being assisted by two courtappointed amicus curiae, senior advocates K Parasaran and T Andhyarujina. Each petitioner in this case is prompted to approach the court, praying relief from either an existing or potential bully who has used or is likely to rely on these legal provisions to curb free speech. That their tormentors are active in politics and public life shows how fragile Indian democracy has been reduced to because of these provisions. The current spate of challenges to the defamation provisions has been prompted by complaints of defamation launched against Swamy, Rahul Gandhi and Arvind Kejriwal. They were filed by Tamil Nadu CM Jayalalithaa, an RSS worker and union minister Nitin Gadkari, respectively. However, the legal provisions do factor in exceptions to avoid punishing those who may not have actually intended to de-fame or distort facts. Section 499, for instance, targets only those making or publishing any imputation with an intention to harm or with the knowledge that such imputation will harm

Illustration: Anthony Lawrence

the reputation of the other person. Section 500 seeks to punish the defamer with a simple imprisonment for a term which may extend to two years or with a fine or both.

rafted in 1860, Section 499 IPC carries 10 exceptions which, at least on paper, mitigate its rigor. But the exceptions are not apparent to the court immediately; therefore, the defendant is asked by it to claim exceptions during the trial, leaving him with no option but to suffer the process as a punishment. So what are the exceptions? The first one makes it clear that it is not defamation to impute anything which is true concerning any person if it be for the public good, and that whether or not it is for the public good is a question of fact. The second exception says that it is not defamation to express in good faith any opinion whatever respecting the conduct of a

public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. The third exception protects expression in good faith any opinion about the conduct of any person touching any public question. A journalist has no special status under defamation laws in India. Although the press enjoys freedom of speech and expression under Article 19(1)(a) of the constitution, defamation is a ground for a reasonable restriction under Article 19(2). In March this year, the Bombay High Court dismissed Rahul Gandhiâ&#x20AC;&#x2122;s petition to quash a criminal defamation case filed against him in 2014 by Rajesh Kunte, an RSS activist. Rahul Gandhi had made some remarks in an election speech regarding the involvement of RSS members in Mahatma Gandhiâ&#x20AC;&#x2122;s assassination, in Bhiwandi, near Thane, in March 2014. Kunte alleged that

The media enjoys freedom of speech and expression under the constitution. But a journalist has no special status under defamation laws in India.

INDIA LEGAL August 15, 2015

FOCUS/ Defamation

BJP leader Subramanian Swamy (right) challenged the constitutionality of legal provisions making defamation a criminal offense. He is now joined by 24 others, including Rahul Gandhi and Arvind Kejriwal. NO RIGHT TO CRITICIZE Swamy contends that critics are turned into criminals under the current defamation laws

Photos: UNI

his statement harmed the reputation of the RSS. Rahul Gandhiâ&#x20AC;&#x2122;s lawyers told the high court that he did not intend to harm the reputation of the RSS. They argued that since Gandhiâ&#x20AC;&#x2122;s assassination was in the public domain, and if Rahul Gandhi made a statement on that question, it would be covered by the third exception of Section 499 IPC. The Supreme Court granted a stay on the defamation proceedings against Gandhi.

he UN Human Rights Committee (UNHRC), which administers the International Covenant for Civil and Political Rights (ICCPR), has stated that defamation laws must be crafted with care to ensure that they do not, in practice, stifle freedom of expression. It has suggested that even when defamation is handled as a civil matter, as it should be, civil penalties must not block freedom of expression and be designed to restore the reputation harmed. A consultation with experts organized by the Law Commission of India last year revealed that the penalty of imprisonment up to two years prescribed in Section 500 is clearly disproportionate. Criminalizing criticism in this disproportionate fashion has a chilling effect on speech, the participants said. In the ongoing case, the Supreme Court has observed that political debates may not

August 15, 2015

come under the definition of criminal offence of defamation. In their submissions before the Bench, both Swamy and Rahul Gandhi pointed out that truth is not a complete defence in criminal defamation. This is at odds with the national motto of Satyamev Jayate. Truth is always for the public good, but the accused who has spoken the truth is subjected to harassment. This includes summons, obtaining bail or otherwise suffering arrest or detention, attending all hearings of the case, engaging a lawyer involving considerable expenditure and being made to wait for the trial to proceed to the stage of defence evidence. In other words, even if the defendant is innocent, the process itself will turn out to be a punishment. And if acquitted after proof of truth, there is no compensation. This is wholly irrational, unjust, unfair and arbitrary, they told the Bench. PP Rao, counsel for Rahul Gandhi, told the Bench that Section 499 IPC, ex-facie inhibits free speech and is a serious restriction on the fundamental right conferred by Article 19(1)(a). A restriction which excessively invades the right or goes beyond the requirements of public interest cannot be regarded as reasonable restriction and would be arbitrary, he told the Bench. Swamy, who argued the case himself, told the Bench that by criminal prosecution, the

real danger is critics are turned into criminals and this will chill robust public debate due to fear of arrest and the social odium from criminal prosecution. If a law impacts in this way for lack of access to adequate evidence that is fit for a court, then it erodes Article 19(1)(a) unreasonably. Section 499, by requiring good faith in criticism of public officials, diluted Article 19(1)(a) unreasonably, he explained.

s India has ratified the ICCPR, it is obligated to comply with Article 19 (of ICCPR) and Resolutions of the UNHCR to abolish criminalization of defamation, and thus delete Sections 499 and 500 of the IPC, he further submitted. Along with these sections, Section 199(2) of the CrPC is also under challenge. It empowers the Sessions Court to take cognizance of an offence of defamation against a public servant. Specifically, Swamy raised two contentions before the court. One, Sections 499 and 500 IPC travel beyond the restriction clause under Article 19(2) of the constitution, for that really constricts the freedom of speech beyond reasonable limit. Second, the very purpose of Article 19(2), as would be evident from the debate in the provisional parliament in 1951, which inserted it in the constitution through the First

Amendment, was not meant to put such restrictions. Therefore, Swamy said such an enormous restriction cannot be thought of under Article 19(2) to support the constitutionality of the provisions. Further, it will violate the concept of the rule of law, he stated. The central government, however, defended the draconian provisions on the ground of necessity. The government told the court that Article 19(2) itself imposes the restriction and, therefore, the submissions of Swamy are unsustainable. The government, thus, relied on the word “defamation” being there in Article 19(2) and it being there in Section 499 of the IPC, which not only defines defamation but provides enormous safeguards by way of exceptions, to buttress its stand. Andhyarujina told the court that in view of the accent given under Article 19(1)(a) to freedom of speech and expression and in view of the development of free speech and expression in the last few decades, the debates in the provisional parliament may be of some help. The terms “defamation” or “incitement” found in Article 19(2), he said, have to be read disjunctively. Both are in separate compartments; incitement to an offence would have criminal capability whereas defamation as per Article 19(2), when properly understood and appreciated, would give rise to civil liability. K Parasaran, on the other hand, was of the view that the first part of Article 19(2),

LEGAL BATTLE (L-R) Both Rahul Gandhi and Arvind Kejriwal are fighting defamation charges against them in courts

INDIA LEGAL August 15, 2015

FOCUS/ Defamation

THE BATTLELINES Jayalalithaa has gone to court against Subramanian Swamy and Nitin Gadkari has slapped a case against Arvind Kejriwal

which says “nothing in Article 19(1)(a) shall affect the operation of any existing law”, would protect Sections 499 and 500 of IPC, as they were part of the IPC when enacted in 1860. Article 19(2) was inserted in the constitution in 1951 through the First Amendment. Parasaran further submitted that freedom of speech and expression possibly has to be controlled so as not to include the concept of defamation as defined under Section 499. Reputation, that is, kirti, is the greatest treasure of man and, therefore, no citizen has a right to defame another; as the existing law is protected, it is to be seen whether apart from freedom of speech and expression, other Articles in Part III of the constitution are violated, he told the Bench.

espite Parasaran’s prima facie defence of the draconian provisions, the court may have to find an answer to the question whether they satisfy the test of reasonableness, and whether they restrict speech only to the extent necessary to achieve their stated objectives. If the provisions are found to be broadly and vaguely worded, then the court may conclude that they have a chilling effect, which could encourage self-censorhip. In the landmark case of R Rajagopal vs State of Tamil Nadu, (1994) the Supreme Court has held that in cases involving defamation of public officials, it has to be shown that the speaker either knew it to be false, or acted with reckless disregard to its

August 15, 2015

truth or falsity. But the Rajagopal case, according to observers, has led to an imbalance between criminal and civil defamation. Criminal defamation, it is pointed out, is more draconian than civil defamation, which was held inconsistent with free speech. Under Section 499, the accused must not simply prove that his statement is true—he must also prove that it was made in “public interest”. As the speaker could not decide this issue beforehand, it would lead to self-censorship, and chill even legitimate speech, which was the precise concern that led the court in the Rajagopal case to modify the civil law of defamation, according to Gautam Bhatia, a Supreme Court lawyer assisting one of the petitioners in the case. In many countries, criminal defamation has either been struck down as unconstitutional or diluted with sufficient safeguards to neutralize the chilling effect. Criminal prosecution for defamation has been abolished in the US, Britain, Singapore, Sri Lanka, Maldives and most of Africa. The UK decriminalized defamation in 2010 and enacted Defamation Act, 2013, to strengthen civil remedies. The defamation regime in India has certain unique characteristics, not present in other jurisdictions. Therefore, the outcome of the case in the Supreme Court will show how much the Indian judiciary is willing to borrow from other countries in order to strengthen its free speech jurisprudence. IL

PROFILE/ Rohini Salian

“I will fight, I am a fighter” It is rare to find someone as gutsy and irrepressible as Rohini Salian, Maharashtra special public prosecutor, who claims the NIA asked her to go soft in the 2006 Malegaon case By Shantanu Guha Ray

OHINI Salian knows she is in the hot seat, literally. The Maharashtra special public prosecutor, who alleged that the National Investigation Agency (NIA) had asked her to go soft in the 2006 Malegaon blast case, says she will stand firm and seek Supreme Court’s help if the situation turns worse. “I have immense faith in the judiciary,” says Salian, adding she could look like the “last woman standing on the deck” but she did give her statement a lot of thought. “I know the NIA has denied my statement, but it means nothing to me,” said Salian in an exclusive interview to India Legal telephonically. After all, she is a criminal lawyer who wouldn’t make allegations without evidence. OUTRAGEOUS OFFER Salian says it is not important for the country, or for that matter, the media to know as to who came from the NIA to make that “outrageous offer” to go soft in the case. But what worries her is that if the NIA could get into something like this, what hope is there for victims from the organization. She says that last year when the NIA

STANDING FIRM Rohini Salian, special public prosecutor, Maharashtra Image courtesy: goo.gl/EB46ka

August 15, 2015

UNHOLY NEXUS A Malegaon blast site, where hardliners carried out the explosion in 2006

investigator met her, she played ball with him and told him nothing. Instead, she waited for more evidence to land in her lap and eventually made the sensational announcement. “If I had talked right after the meeting, it would have been disastrous. I would not have been able to collect the evidence. But I have managed it now, it is (the evidence) safe with me and I would walk the last mile to ensure justice for those wrongly framed. “I will fight, I am a fighter. A fighter always wins,” Salian says. She says she borrowed the lines from an advertisement campaign done by scriptwriter Javed Akhtar some years ago. What does Salian want from the NIA? She wants discharge of the nine Muslims who were arrested and charge-sheeted by the Maharashtra Anti Terrorist Squad (ATS) and the Central Bureau of Investigation (CBI) for the Malegaon blast. EMBARRASSMENT TO NDA Her accusations are very serious and have caused embarrassment to the NDA government as they cast a shadow over other

Salian wants discharge of the nine Muslims arrested and charge-sheeted for the Malegaon blast. Her accusations have deeply embarrassed the NDA government. “Hindu terror” cases handled by the NIA. Besides the 2006 Malegaon blasts case, these include the Samjhauta case, the Mecca Masjid blast case in Hyderabad and Ajmer Sharif blast, all in 2007, and the Modasa blast in 2008. Salian knows she has stirred a hornet’s nest, accusing the all-powerful NIA. But she is not bothered. Salian said in the 2006 Malegaon case, she wanted discharge of the nine arrested because of specific reasons. “Let me make it clear that the court asked me to justify if there were two sets of accused, both distinct and with no connection between them. I simply asked the NIA to allow me to exercise the powers given to the prosecutor (under Section 321 of the CrPC) to try and convince the court that some error had crept in on the INDIA LEGAL August 15, 2015

PROFILE/ Rohini Salian

PEACE DERAILED The Samjhauta Express blast caused a big setback to India-Pakistan diplomatic efforts

“If I had talked right after the meeting, it would have been disastrous. I would not have been able to collect the evidence. But I have managed it now, it is safe with me.” —Rohini Salian

part of one of the investigating agencies that must be rectified by the court. “This was not all. I had suggested that they give it to me in writing that I be allowed to make a discharge application. I had not promised anything, but told them I would try my best. “But the NIA got upset, extremely upset with me. Some of the officers in NIA—I was surprised—accepted my demand and I was happy. But then, everything was put on the backburner and there was no response to my suggestion. They just filed a charge-sheet against four new accused. After that, I said I don’t want to appear in the matter,” she said. The NIA has not made a single statement except denying Salian’s charges and has not responded to repeated letters written by her. CASE CONTINUES In private conversations, NIA sources have claimed that the case was one needing “further investigation” and was not a “re-investigation”, and that the initial probe conducted by Maharashtra ATS and the CBI should not be wiped out. “We simply cannot discard the previous charge-sheet as they have been placed before the court. It is for the court to decide who to discharge,” sources said. Meanwhile, the special NIA court in Mumbai has issued notices to the NIA,

August 15, 2015

Maharashtra ATS and the CBI to adduce evidence regarding their charge-sheets, before taking a call on how to push the case further. But the situation has also turned grim. Witnesses have turned hostile in two other blast cases—15 in the Ajmer Dargah case and three in the Samjhauta Express case. In a third case, the 2008 Modasa explosion, a closure report has been filed. Salian says it important for everyone to dissect the case she is fighting. It was on September 8, 2006, that four bomb explosions rocked Malegaon, killing 31 and injuring 312. Nine Muslim youth were arrested by the Maharashtra ATS for their alleged involvement in the blasts. On December 21, 2006, the ATS filed a charge-sheet in the special MCOCA court against the nine accused and four others on the run. MANY PROBES Muslim groups across India raised a hue and cry, alleging high-handedness by the Maharashtra ATS. Eventually, the CBI took over the case in July 2007. In its initial investigation, the CBI backed the ATS stand and filed a charge-sheet against the same accused on February 11, 2010. Eventually, the case was handed to the NIA on April 6, 2011. What is important, claims Salian, is this:

Before the case was handed over to the NIA, Swami Aseemanand was said to have made a confession in the Mecca Masjid blast case that accused Sunil Joshi had told him that the Malegaon blasts were actually the handiwork of his boys. In his statement, Aseemanand said a meeting was held at the residence of Bharat Rateshwar in Valsad in June 2006, during which he (Aseemanand) suggested that Malegaon, where 86 per cent of the population is Muslim, may be chosen first

for a bomb blast. “Note this. You must understand what I am saying, and where I am coming from,” explains Salian. “During the NIA probe, all nine accused retracted their confessions, alleging these were secured under duress.” This, in itself, is a serious charge and flies in the face of investigations done by both the ATS and the CBI. BAIL GRANTED Salian continues. On May 22, 2013, the NIA filed a supplementary charge-sheet against four accused—Sunil Joshi, Ramchandra

Kalsangra, Ramesh Venkat Mahalkar and Sandeep Dange—before the NIA special court in Mumbai. Subsequently, the nine Muslims who were accused and chargesheeted by the ATS and the CBI, moved court for bail. It was granted without opposition from the NIA. And then, Salian says, she started getting feelers from the NIA to go soft on the cases. Salian protested, went public and is now waiting for NIA’s next move. What makes her charges serious is that, she says, she started getting feelers only after the BJP-led NDA came to power last year. “It seemed to me someone wanted me to turn the case upside down. I felt I must expose this rot,” says Salian. But ever since she raised the issue, Salian has been flooded with calls and messages. The list HATEMONGERS includes Congress leaders, (Above) Swami lawyers, doctors, Muslim Aseemanand, the leaders, intellectuals, jouralleged nalists and activists. She mastermind of has not responded. the Malegaon blast Salian only remembers how, in the last stages of the Malegaon probe by the NIA, the officers presented to the judge an opinion sheet along with the charge-sheet. The opinion sheet said the first lot was wrongly arrested. Salian was shocked, she went through the entire charge-sheet. It was false. She knew someone was pushing untruth against truth. And it was then that someone from the NIA came calling, urging her to go soft so that the Hindu terrorists could be released on bail. Salian argued back and made the NIA offer public. In private conversations, she tells her family members about her nationalist colors. She tells them why 1947, the year of her birth, is important for her, and those who believe in an independent, united India. Salian calls them un-influenceable. She does not mind even if there is no word like that in the dictionary. IL

TERROR INC. Cases handled by NIA 2006: Malegaon blasts 2007: Samjhauta Express blast case, Mecca Masjid (Hyderabad) and Ajmer Sharif blast 2008: Modasa blast Status of various cases 15 witnesses turn hostile in Ajmer blast case 3 witnesses turn hostile in Samjhauta Express case In Modasa case, closure report filed Malegaon case Took place on:

September 8, 2006 Number of bomb explosions: 4 Number of killed: 31 Number of injured: 312 Those held:: 9 Muslims The date when Maharashtra ATS file chargesheet in special MCOCA court: December 21, 2006 Case handed to CBI on: July 2007 CBI files charge-sheet against same accused on: February 11, 2010 Case handed over to NIA on: April 6, 2011 NIA files supplementary charge-sheet against four accused on: May 22, 2013

INDIA LEGAL August 15, 2015

PROBE/ RK Pachauri

Climate Changes in

TERI

As a new D-G takes over, RK Pachauri seems to have been delivered a new set of troubles. All eyes are now on how the case pans out when the hearing starts By Ramesh Menon

SHOWN THE DOOR (Above) RK Pachauri, who has been removed as Director-General of TERI

August 15, 2015

INALLY, the governing council of The Energy and Resources Institute (TERI) acted. It removed its 74year-old director-general, Dr RK Pachauri, as pressure mounted from a section of vocal employees and questions were raised in the media about the propriety of letting him continue after a sexual harassment charge was made against him by a 29-yearold female colleague in March this year. The high-profile council has luminaries such as Naina Lal Kidwai, country head, HSBC Holdings; Kiran Mazumdar Shaw, CMD, Biocon Ltd; and Deepak Parekh, chairman, HDFC. They replaced Pachauri

with Dr Ajay Mathur, who had earlier been with TERI and was D-G of the Bureau of Energy Efficiency. Employees of TERI have heaved a sigh of relief with Mathur taking over. He is wellrespected within the organization and is credited with ushering in a lot of changes in the energy sector. He has also been active in global discussions on climate change and was part of Indiaâ&#x20AC;&#x2122;s negotiating team setting up the Green Climate Fund in South Korea. Pachauri, who had been with the organization ever since it started 34 years ago, went on leave when the case was filed in March. So TERI employees were surprised when he filed a petition asking that he be allowed to resume work, arguing that not working

affected him monetarily. The Delhi High Court then allowed him to enter all offices of TERI, except the headquarters in Delhi and its Gurgaon branch, where the victim had been transferred. Four months earlier, the court had restrained him from entering any of TERI’s offices till completion of the investigation. The Delhi Police had also sought cancellation of the anticipatory bail which Pachauri had secured soon after the complaint was filed. The police had claimed that he was being evasive and was not cooperating. They had also alleged that he was influencing witnesses. Pachauri had denied the allegations. The victim had also approached the court, seeking cancellation of his bail, on the grounds that free and fair investigation could not be carried out if he was allowed to visit the TERI offices.

ne of the first things that Pachauri did after he rejoined was to get a shuttle service started between TERI headquarters and the Defence Colony office where he had joined, so that staffers could move to and fro. Prashant Mendiratta, the complainant’s lawyer, told India Legal: “We found that many who had complaints of a similar nature against Pachauri were not ready to come forward publicly because of fear that he would return. That is why we said that let him first prove that this is a false case and then join work. When he joined the Defence Colony office, I am told that women wrote to the governing council that they did not feel safe with him in the office.” When he did visit the office after the court order, there was resentment. Many younger employees got together and decided to voice their protest to the council. They sent out mails asking others to join them in the protest as the sexual abuse had happened in their backyard. One of the employees, who insisted on anonymity, said that it had become extremely difficult to defend the organization’s stance outside the office. Some of them went on protest leave, while some in the senior management said that it was of no consequence as there were 700 employees and some going on leave did not matter.

INFUSING NEW ENERGY Dr Ajay Mathur, the new DG of TERI

After resuming work, Pachauri removed acting director, Dr Leena Srivastava, and appointed her as a “Distinguished Fellow”. He even wrote to employees that this year’s Eid was special for him as he had come back. The complainant told India Legal: “The press release issued by TERI does not have the slightest mention of my complaint and the ICC (Internal Complaints Committee) indictment. It does not say if the development on the new D-G was an action based on my complaint. There were at least 10 days for the board members to implement the ICC recommendations before the ex-parte order was obtained.” While Pachauri resigned as the chief of the Intergovernmental Panel on Climate Change, a UN body, soon after the police complaint, he chose not to resign from TERI. Former solicitor-general Indira Jaising asks: “Why are there two standards—one for an international body and another for an Indian one? Obviously, it was because internationally, sexual abuse at the workplace is treated and punished with great seriousness.” Activist lawyers like Vrinda Grover had pointed out that there could be a fair trial only if he quit. The ICC too emphasized that repeated

“We found that many who had complaints of a similar nature against Pachauri were not ready to come forward publicly because of fear that he would return....I am told that women wrote to the governing council that they did not feel safe with him in the office.” —Prashant Mendiratta, complainant’s lawyer

INDIA LEGAL August 15, 2015

PROBE/ RK Pachauri

Anil Shakya

TOUGH CALL (L-R) Members of the governing council —Kiran Mazumdar Shaw of Biocon, Naina Lal Kidwai of HSBC Holdings and Deepak Parekh of HDFC

August 15, 2015

attempts by Pachauri to foster personal relationships with employees amounted to violation of the prevention of sexual harassment policy. In its 33-page report released in May, it recommended that disciplinary action be taken against him and that he should compensate the victim for the torture she had gone through. It noted that her health had seriously deteriorated because of the consequent stress and trauma and she even had to resort to counseling. The committee had examined 30 witnesses who deposed for Pachauri, apart from 19 who deposed for the complainant. Pachauri then approached the Industrial Labor Tribunal, praying that the recommendations of the ICC be stayed as he had been denied the principles of natural justice. It was stayed, but a judgment on it is yet to be given. The next hearing is in September. The committee said that it was under pressure from certain individuals within the organization. Though the complainant was transferred to Gurgaon in May, she did not join as Pachauri continued as D-G and work given to her was different and not suited to the

qualifications she had. She has been on unpaid leave ever since she lodged her complaint.

hough Pachauri has lost his TERI job, he continues to be the chancellor of TERI University. Asks Jaising: “What message is this sending to young students? Are we telling them that it is okay to tolerate sexual abuse in the workplace?” When will the trial start is a question many are asking. P Ramana Reddy, a former TERI official who says he knew of others who were also sexually abused by Pachauri in the office, says: “It is a pity that Indian laws have loopholes to allow well-connected accused to easily escape the law. This is what is happening with the Pachauri case.” Reddy’s online petition asking for Pachauri’s removal from TERI on change.org had attracted over 400 signatures. The complainant, whose father recently died of heart attack, says that she would not have had the courage to fight back had it not been for her father. He had told her: “Go ahead and report the abuse. Being silent in a crime is like being part of the crime.” IL

POLITICS/ BJP Vs RSS

Who Calls the Shots?

Though PM Modi is seen courting global capital, he’s handicapped by the economic philosophy of the RSS, which wants government policies to be in sync with Indian culture. What is the way out of this tug of war? By Sampad Patnaik

HE Modi government is sending out contradictory signals with respect to globalization. The prime minister seems to be in perpetual courtship with global capital. His government is clear that global capital and industry have a role to play in creating the millions of jobs promised during the 2014 election campaign. Yet, Nirmala Sitharaman, commerce and industry minister, confirmed that the government’s opposition to foreign direct investment (FDI) in the branded retail sector has not wavered. Jagdish Bhagwati, an eloquent exponent of the Modi government, has said he expects the government to reverse its opposition to FDI in branded retail. Bhagwati has said the government will change track as soon as it consolidates adequate outside support to overlook the concerns of the petty bourgeoisie, a loyal constituency of the BJP, which is opposed to FDI in retail.

REALPOLITIK Modi has no option but to woo the West despite ideological compulsions UNI

FDI IN RETAIL However, the issue may be more complicated than a problem of trading one support group for another. The case of FDI in retail is one example of a larger trend. The Hindu nationalism movement’s economic philosophy sometimes clashes with the economic policies of the ruling BJP government. Philosophy reflects the core thoughts of an organization, while policy refers to day-today directives. Philosophy, like strategy, is more stable, while policies, like tactics, can vary as per the exigency of the moment. INDIA LEGAL August 15, 2015

POLITICS/ BJP Vs RSS

ON THE WAY? (Right) It is a matter of time before big retailers like Walmart do business in India (Below) Many traders, the BJP’s support base, are opposed to FDI in retail

age its investments, over global capital. Thirdly, while cultural capitalism advocates the pursuit of wealth, it also promotes moderation of consumption. A household could save more if it consumed less, so families should spend on “necessities”, such as food, housing, clothing, education, and not on “luxuries” like cinemas, restaurants and brands. Whenever a BJP government at the center violates these principles, there are tensions between the government, the party and other affiliates of the Hindu nationalist movement.

When in power, the BJP has had to make compromises with international capitalism. The party has allowed the entry of foreign consumer goods, which bring “foreign” values, like commodity fetishism. In doing so, the BJP has had to steer away from the economic philosophy of the Hindu nationalist movement, which seeks embedding economic practices in cultural habits, or what may be called “cultural capitalism”. Cultural capitalism is marked by three principles. It supports indigenous industry, small-and-medium enterprises that produce handicrafts, native food and native textiles. Secondly, it prefers domestic savings to man-

August 15, 2015

STRONG NATION-STATE The tensions began in the term of the first national BJP government, under PM Atal Bihari Vajpayee, which sometimes acted against the principles of cultural capitalism and embraced globalization for political reasons. As the BJP broadened its electoral base in the late nineties, it started strongly identifying a loyal voter in the middle class. Many of BJP’s new voters, while not identifying with all aspects of Hindutva, agreed with BJP’s vision of a strong nation-state. These voters expected that a strong state had to be a wealth-creating one, which built the infrastructure necessary for economic growth. The party realized the need to demonstrate support for globalization and global capital because domestic savings were inadequate

for long-term investments. The second factor that forced the BJP’s hand was the flight of its core upper-caste voters into the private sector from the public sector. The BJP realized that there was considerable upper-caste disenchantment, after job reservations for backward castes in the public sector were implemented by the VP Singh government. Many among these upper castes felt the private sector protected their “merit-based” performance. Promoting private industry could, therefore, pay high dividends among the party’s “natural” voters. But private industry demanded access to global capital and the BJP felt itself pushed towards globalization. Thirdly, the upper-caste and middleclass migration to Western countries, especially the US, compelled BJP to accommodate globalization. These emigrants had not only achieved economic success, but developed greater affinity for their Indian roots in culturally-alien Western lands. The BJP realized that a rejection of foreign-based, multinational corporations (MNCs) in which these Indians work, would make it difficult to sustain the support of a wealthy and well-connected diaspora. Finally, the BJP also realized that it could find much more acceptance within the international community, which saw it as partisan and divisive, if its government was not hostile to MNCs based in the West. However, the BJP’s departure from the canons of cultural capitalism led to tensions with other Hindu nationalist affiliates. The RSS understood that any BJP government had to seem friendly to global businesses, in order to be accepted by foreign governments. It did not object to, say, large-scale arms acquisition to keep Western governments happy and “strengthen the motherland”. But the RSS is especially hostile to lifestyle businesses, food chains and clothing retailers, as it feels Western goods are likely to overwhelm Indian youth with Western culture. This is one reason why the BJP, while not averse to FDI, opposed it for the branded retail sector. In the current political landscape, Modi has a majority in the Lok Sabha and a demoralized opposition. Nevertheless, he

CONTRADICTORY SIGNALS? (Left) Commerce and Industry Minister Nirmala Sitharaman confirms that the center is still averse to FDI Photos:UNI

The RSS didn’t mind large-scale arms acquisition from Western countries, but it is especially hostile to lifestyle businesses, food chains and clothing retailers. has to abide by the oversight mechanisms of his ideological brethren. A pro-growth and pro-jobs agenda implies greater dependence on international capitalism. It is not easy to court the US India Business Council while snubbing one of its most powerful members, Walmart. The larger narrative in this paradox seems to be a philosophical tension, between ideology and realpolitik, which has placed “guardians” of Indian culture also in charge of Indian capitalism. IL — The writer is an Oxford scholar INDIA LEGAL August 15, 2015

ECONOMY/ Agriculture/Farmers’ Protest/Goa

NO TEEING OFF HERE

A `500-cr golf course resort in Goa has sparked a storm of protests. Serious charges of fraud, malafides and illegal transfer of tenanted agricultural land have plagued the project By Pamela D’Mello in Panjim

T'S been a summer of discontent in Goa as three investment projects have run into rough weather. While two are for Marinas, the third is for Tiracol's `500-cr golf course resort, sought to be developed by Shiv Kumar Jatia Group’s Leading Hotels. As a minister, some local BJP legislators and village panchayats joined dissenting voices of fishermen and clam harvesters in the bay areas of the two proposed Marinas (a specially designed harbour with moorings for pleasure yachts and small boats) in Sancoale and Nauxim villages, both on the banks of

August 15, 2015

the Zuari river, Chief Minister Laxmikant Parsekar was forced to speedily pull back the sails on the projects in June. Both were in the preliminary stages of investment and had received an okay from the newly set-up State Investment Promotion Board. Both would have required a long list of permits, including the mandatory Environmental Impact Assessment (EIA), environment clearances from coastal management authorities, biodiversity boards and Coastal Regulation Zone (CRZ), from the Ministry of Environment and Forests (MoEF) and Climate Change. However, Leading Hotel’s golf course resort project is another matter altogether.

Fact File Total land area of Tiracol village: 13,84,000 sq m Area occupied by the village/ residences: 3,15,000 sq m Land purchased/acquired by Leading Hotels: 12,18,000 sq m Total project area of golf course resort: 9.90,000 sq m Estimated purchase price: `

CRISIS POINTS The key bottlenecks are on the banks of the Zuari river

33 cr

Planned golf green area: 5,62,536 sq m 188 standard and premium villas in:

FACING THE HEAT

Mandrem constituency

CM Laxmikant Parsikar had supported the project earlier

3,31, 854 sq m Permissible floor area ratio: 40,000 sq m

PANJIM FIGHTING BACK

Villagers have put up signboards of protest at Tiracol

Zuari river

Nauxim villages

Sancoale

GOA

The company had been pursuing land purchase from 2006-2011, and had received as many as 18 permits from various government bodies, including the CRZ clearance in December 2014, when a series of major legal challenges filed by villagers and tenants hit the project. SERIOUS CHARGES Two cases are before the Bombay High Courtâ&#x20AC;&#x2122;s Goa Bench and one is being argued before the National Green Tribunal. Two of the cases make serious charges of fraud and malafides in the manner in which the government and administrative bodies issued permissions to the company. More seriously, the petition before the Bombay High Court wants the sale deed quashed as it resulted in the transfer and conversion of allegedly tenanted agricultural land. This is against the provisions of the Goa Daman and Diu Agricultural Tenancy Act, 1964; the Goa Land Use Act, 1991, and the

Fifth Amendment Act (Land to the Tiller Act), 1976. The legislations prevent the alienation of agricultural land if it is tenanted. Where tenants do not wish to cultivate, the lands are supposed to be reverted back to the government, but in reality it is never so, mainly because of the large vote share these communities command. The High Court matter is being argued currently for admission before the court. The court has asked INDIA LEGAL August 15, 2015

ECONOMY/ Agriculture/Farmers’ Protest/Goa

media that his hands were tied as the government had already accepted money to have the land converted. Incidentally, this project is located in Parsekar’s Mandrem constituency. He had openly supported the project and welcomed the employment it would bring to the region. He went on to say that five other major hotel projects would come up in his northern Pernem taluk, site for a contentious `3,000 crore greenfield second airport at Mopa. As land values escalate in the area, landowners, in particular feudal families that were given thousands of acres in perpetual lease by erstwhile Portuguese colonialists, have reason to celebrate. They see in it an opportunity to monetize lands locked in tenancy claims. Tiracol is one such instance. Almost the entire village was granted in perpetual lease in 1869 to Naguesh Shet Khalap after the Portuguese got the scenic promontory from the Raja of Sawantwadi. On one strategic outcrop sits the historic Tiracol Fort (converted to a hotel by Goa Tourism). The remainder supports cashew and paddy cultivation, both somewhat diminished, as the 50 Christian families there set up restaurants, bars and rooms for tourists. COMMERICIAL INTERESTS The historical Tiracol Fort has been converted to a hotel by Goa Tourism

Goa Foundation to implead the village panchayat and the original landlords in the case. Matters came to a head in May 2015, when Leading Hotels commenced work on the land and brought in 50 bouncers, triggering a face-off that inflamed passions. Goa is uber sensitive to the speedy loss of agricultural, forest and other land to moneyed people from major metros. Under media focus, Tiracol’s golf course project has now become a metaphor for everything that has gone wrong with Goa’s failed statehood. Like: loss of land, eviction of local inhabitants, mega projects, including an international luxury hotel chain and corralling of village residences into down-market and gated spaces. HANDS TIED These protests have spiraled out of control. On June 2, hundreds of people drove to Goa’s northernmost border village in solidarity with the 50 tenant families residing there. It put Parsekar on the back foot. But he told

August 15, 2015

FRAUDULENT SALES? Trouble began when the landowner (successors of Naguesh Shet Khalap) sold a large portion of land to Magus Estates and Hotels in 2006, followed by more sales in 2007, 2008 and 2010. A green NGO, Goa Foundation, and the Tiracol St Anthony’s Mundkar and Tenants Association swung into action. In their petition, they elaborated on the modus operandi used to alienate tenanted land. This involved tenants declaring their claims as erroneous (negative declarations), facilitating a sale from the original landowner to the third party buyer. Arguing that since further permits were based on this alleged fraud, Goa Foundation sought quashing of the permissions which the company had acquired, including okays to convert the land from agricultural use to eco tourism. It also sought a CBI inquiry into the transfer of all Tiracol land after 2006 and into all transactions involving alienation/sale of tenanted, agricultural land in the state in

QUESTIONABLE LAND TRANSFER Goa Foundation has sought a CBI inquiry into the transfer of Tiracol land

the past five years. Leading Hotels has denied malafides and accused tenant organizations of instigating the legal battle. The company says it is in possession of all its lands, that they are non-tenanted, that agricultural activity had long ceased in the area and that tenancy claims are a matter of dispute before lower courts. “We believe that the Tenancy/Other rights claims are not substantiated with appropriate evidence and the same is being disputed at the respective courts/tribunals,” company spokesman Gerson Rebelo told India Legal. One tenant had personally claimed tenancy in the “other rights” category for an area close to 1,00,000 sq mts, “all or most of which is barren lateritic rock abutting the sea”, he said. The company argues that tenancy claims are personal claims and a public litigation is unfounded, “filed to influence the adjudication of their private claims”. Goa Foundation asserts that public interest lies in the “large-scale diversion of agricultural tenanted land in the state. If this

process is not arrested, then all tenanted agricultural land in Goa will meet a similar fate. That is why we have asked for a CBI inquiry into all such transactions,” says foundation secretary Claude Alvares. As the agitation gathered steam, with support from the church-backed Centre for Responsible Tourism, Parsekar blamed the tenants for selling their rights in the first place. He suggested that differences in the settlement payouts had soured the deal, leading to opposition from some tenants. Tenants like Elvis Pereira of the Tiracol Rakhon Manch (Save Tiracol Forum) admit the villagers were divided. Some, who had migrated to cities, signed the affidavit, memorandum of understanding and an irrevocable power of attorney and took the money proffered without understanding the consequences of their action, he says. A dozen families still living in the village refused to sign away their rights. “I will never give up. My mother did not sign away her rights and neither will I,” says Pereira, who is fighting a

“If this process (of large-scale diversion of agricultural tenanted land) is not arrested, then all tenanted agricultural land in Goa will meet a similar fate.” —Claude Alvares, secretary, Goa Foundation

INDIA LEGAL August 15, 2015

ECONOMY/ Agriculture/Farmers’ Protest/Goa

A third petition by the Foundation questions the environmental soundness of a ` 77crore long span bridge being built by a government agency in the “no-development” zone of a highly protected CRZ beach. The National Green Tribunal has stayed pier work on both sides of the river until an expert committee examines the ecological issues raised. The Congress and the BJP are locked in a war of words over the project. Accused by the BJP of taking money to facilitate clearances while it was in power before the 2012 assembly elections—the Congress is now demanding the BJP scrap all permissions.

ECO CONCERNS A long span bridge is being constructed over a “no-development” zone

case to have his name included as having tenancy rights through succession. Though some of his relatives signed the papers, under succession laws, deals cannot go through unless all heirs are signatories to the same. CLOSE TIES “Our ancestors have lived here for 200 years. I have grown up here. Some of us have purchase certificates, buying the land in the mid 90s. The landlord has challenged these after 17 years,” (on grounds they were ex-parte orders) says local panchayat representative Francis Rodrigues. He says the company’s first plan was a development plan over 35 years, which pushed the residential area to one side. The second amended master plan gives around one lakh sq m for the village to reside in—a move the company says was offered to maintain goodwill. With documents obtained through RTI, Tiracol residents and Goa Foundation challenged the golf course’s various permissions, and raised several environmental issues. These included harm to the biodiversity of the ocean-facing plateau, leading to loss of habitat in the river. Other contested issues included applications to fell 1,966 trees, no hearing prior to granting permits, manipulation of consents and disputes over private forests areas within the project area.

August 15, 2015

NEW AMENDMENTS Independent legislator Vijai Sardessai accuses the BJP government of passing amendments in 2014 to the Goa Agricultural Tenancy Act to help golf course proponents skirt around thorny tenancy issues. The BJP government had passed amendments introducing a clause to file tenancy applications before civil court jurisdiction from the more tenant-friendly mamlatdar’s (officer in executive charge of a taluka) courts. Meanwhile, the company says it is continuing work in areas its permits allow, since it has all permissions and “no contrary order to the same” as yet. Its plans include a standard golf course and luxury villas, besides CSR plans to beautify village residences as a “typical” Goan village. Pernem’s opposition politician and former union minister Ramakant Khalap describes locating of the village “within a gated complex” similar to displaying a live village as “in a zoo”. “This is the sad state we are reducing Goa to,” he laments. Still, the company successfully bid for central government grants to set up the golf course after the Goa Tourism department floated expressions of interest in 2011 for the eco-tourism project. The tourism industry has always been keen on a world class golf course to attract tourists and keep up with its South East Asian competitors. Tourism stakeholders, though, refused to comment on the legal issues surrounding the project. Though the government is facilitating the project, ultimately, these issues will determine if the project tees off. IL

ECONOMY/ Agriculture/ Farmers’ Protest/ Gujarat LAND GREED Essar Power requires the land to build a corridor to move coal stocks

Farmers Breathe Easy

Farmers of Devbhoomi Dwarka district get interim relief after moving a writ of mandamus against Essar Power and the state government By Kaushik Joshi

EARING arm-twisting by the state machinery, including the police, some farmers of Devbhoomi Dwarka district in Gujarat recently moved Gujarat High Court for issuing a writ of mandamus, restraining Essar Power Gujarat Ltd and the state government from evicting them from agricultural land. A writ of mandamus is a writ which orders a public agency or governmental body to perform an act required by law which it has neglected or refused to do so. Incidentally, Essar Power is among India’s largest power generation companies and has an installed capacity of 3,940 MW. It requires the land to build a corridor for transporting coal stocks. The petitioners submitted before the court that the matter was urgent as the respondents were intent on dispossessing them from the land in question. Taking this into consideration, the matter was placed at the residence of Acting Chief Justice VM Sahai, who, along with Justice RP Dholaria, heard the matter. The petitioners said that their land was not acquired and that the respondents were threatening to take possession of it in view of the award given by the collector for the same, dated September 30, 2014. However, the petitioners said their lands were not covered

by the award. After the hearing, the court ordered that the petitioners were entitled to interim relief. It restrained Essar Power Ltd and the state government from taking possession of the agricultural land till the next date of listing. It further directed that “the respondent shall not interfere in peaceful enjoyment of the petitioners’ land”.

his issue has taken political overtones, with Congress spokesperson and Abdasa MLA Shaktisinh Gohil accusing the BJP government of hobnobbing with Essar Power and favoring it by giving away gauchar (grazing) land, throwing norms of the Land Acquisition Act to the winds. He has also accused Essar Power of forcibly acquiring farmland in the district in collusion with the BJP government in the state. Further, he accused it of raiding three villages on June 30 this year with the help of the state machinery and starting to take possession of the land. He also contended that the farmers were offered a lower price for the land acquired. Essar and the BJP government have, however, rubbished these allegations. Essar Power stated that there was no forceful possession and that compensation was paid for the lands acquired. For the poor farmers, however, the interim relief comes as a fresh lease of life. IL

The court restrained Essar Power Ltd and the state government from taking possession of the agricultural land till the next date of listing. It said “the respondent shall not interfere in peaceful enjoyment of the petitioners’ land”.

INDIA LEGAL August 15, 2015

RESPONSE FEATURE

NEW STRIDES IN DEVELOPMENT

An all-encompassing approach to betterment of the people of Uttar Pradesh under the leadership of Akhilesh Yadav

HE state of Uttar Pradesh, despite all the challenges of diversity, has made great strides in overall development under the Samajwadi Party in the last few years. From big infrastructure projects to schemes benefitting people, the government has proactively pursued the development agenda.

August 15, 2015

If, on the one hand, the Samajwadi Pension Scheme has given new hope to the poor, the 1090 helpline has made women feel more secure. The party’s schemes like “Hausla” and “Samajik Suraksha Abhiyan Yojana” are also helping the poor rise above their misery. If the current pace continues, the day is not far when the state will be

known for its development and when it will contribute to national prosperity. INFRASTRUCTURE GROWTH Especially remarkable is the progress in infrastructure. The state government has put great emphasis on road construction. It believes that the benefits of development can’t reach

the last mile in the absence of connectivity, nor can farmers take their produce to the market. Chief Minister Akhilesh Yadav has listed construction of the expressway among his top priorities. There are plans to construct a six-lane Expressway between Agra and Lucknow, covering 300 km at a cost of `3,000 crore. This will facilitate travel between the two cities in five hours and will provide better connectivity to Firozabad, Shikohabad, Mainpuri, Etawah, Kannauj and the mango- growing town of Malihabad. Among the important projects that the government is pursuing are the Delhi-Saharanpur-Yamnotri highway, Bareilly-Almora state highway, the Varanasi-Shaktinagar state highway, and the Meerut-Karnal state highway. Shahjahanpur-Hardoi-Lucknow

The chief minister has inaugurated 200 sub-stations. This will enable rural areas to have 16 hours of electricity and urban areas, 20 to 24 hours of electricity. road, Gorakhpur-Maharajganj Road, Balrampur-Gonda-Jarwal Road, ItaShikohabad Road and MuzaffarnagarSaharanpur-Deoband Road will be made four-lane using the PPP mode.

Besides this, there are plans to connect all the district headquarters with four-lane roads. ENERGY AND POWER SECTOR To ensure 24-hour electricity supply, the chief minister has inaugurated (dedicated to public) 200 sub-stations. This will enable rural areas to have 16 hours of electricity and urban areas, 20 to 24 hours of supply. The development of IT City will also boost employment. The setting up of an in the state will help youngsters get world-class technical knowledge. The state government is planning that IT professionals get accommodation within the complex where their workplace is located, thus cutting down on transport cost and time. IL INDIA LEGAL August 15, 2015

STATES/ Governance / Kashmir Floods

Where are the Cherry Blossoms? The September floods have left Kashmiris grappling with soggy soil, damp buildings and an economy so wrecked that it will be years before the environmental damage can be stemmed By Aasha Khosa

WITHERING AWAY Pink flowers of the cherry tree

August 15, 2015

HE luscious red and maroon cherry from Kashmir was absent from Indian markets this summer. And the beautiful pink blooms of the cherry tree, which grows in abundance in north Kashmir, withered in the frequent and untimely rains that have been lashing Kashmir Valley since the devastating September floods. On any given day, an overcast sky, a swollen Jhelum and drizzle are enough to make any Kashmiri restless. Even the sight of an odd cloud sends shivers down the spine, for the freak weather conditions this summer have prolonged the trauma of the people. “Parts of Srinagar resemble a ghost city,’’ says Javed, a Srinagar-based photographer, who is trying to capture the aftermath of the September devastation through his camera. “The mud and slush on the roads are lesser than in winter, but parts of the city once considered posh, look like ghost townships.,” he adds. Many affluent people from Rajbagh, Wazir Bagh and Jawahar Nagar, which were totally submerged in the flood waters, have quietly shifted out of the Valley. Javed, who had a list of assignments to photograph lavish weddings in Srinagar before the floods, lost all of them. “People have generally put off the weddings or have shifted the venues outside Kashmir,” he says. RISING PRICES The ordinary Kashmiri continues to bear the brunt of the floods even today and is struggling to cope with exorbitant prices of essential commodities and vegetables. Ever since the flood waters receded, haakh, a leafy vegetable, belonging to the mustard family and a staple dish in Kashmir, has become highly prized at `80 a kilo. Haakh is just not a vegetable, but a symbol of frugality and simplicity of life in Kashmir, akin to coconuts for Malayalees and lentils for North Indians. No meal is considered complete without it. “I wonder why I should buy haakh at such an exorbitant price when I can get 250 gm of

mutton for a little more,’’ wonders Sajida, a Srinagar home-maker. She says that haakh prices have never touched above `15-20 a kilo before. Green beans, at `100 a kilo, and nadru (lotus stems) grown in Dal Lake and marshes around it, have also become unaffordable. Tomato, mostly procured from Punjab, is also priced exorbitantly. INFERTILE SOIL The September rains turned the soil soggy and nearly infertile. Ashiq Ahmad, who used to cultivate lotus stems in around 10 kanals of marsh land and assorted veggies on six kanals, has lost his business. Each year, he would invest about `30,000 in his farms and earn `3 lakh from them. “My fields resemble marsh land and the floating gardens are drowned in lake waters,’’ Ahmed says. “The soil is taking a lot of time to drain out the flood water.” Meanwhile, he rows a shikara in Dal Lake to earn a living by ferrying tourists and locals. Kashmir, perhaps, is the only place in India where vegetables are cultivated in water. The floating gardens of Dal Lake are famous for a Kashmiri farmer’s ingenuity, although the phenomenon is spelling a deathknell for the lake as it has shrunk to onethirds its original size in the last 100 years. On an average, these floating gardens would produce nearly 30 tons of vegetables

MAN-MADE DISASTER The September floods have impacted normal life in Kashmir

“The drainage system is clogged and natural sponges for absorbing heavy rains are dead. Kashmir will continue to face water-logging for a very long time.’’ —Dr MRD Kundanghar, a scientist who headed the Dal lake restoration project

INDIA LEGAL August 15, 2015

STATES/ Governance / Kashmir Floods

has been choked by encroachments on the banks of the Jhelum that runs through Srinagar; construction boom has swallowed up wetlands and paddy fields. “The drainage system is clogged and natural sponges for absorbing heavy rains non-existent. Kashmir will continue to face water-logging for a very long time,’’ warns Dr MRD Kundanghar, a scientist who headed the Dal lake restoration project. He says that besides the high prices of vegetables, locally grown rice varieties too are proving costly. Saleem Beg, member, National Monuments Commission of India, warns that scarcity of food could worsen if this year’s rice production does not come up to the mark. “Kashmir’s agro-economy has suffered hugely due to the floods,’’ he says.

WAITING FOR END TO CRISIS (Top) Floating gardens of the Dal lake (Above) Aerial view of Srinagar city sumerged in water

daily, making the Valley self-sufficient. It was only for a brief period of harsh winter that the Valley would depend on vegetables from outside. However, now the production may have fallen to one-fourth after the flood, says Ahmed. The condition in the villages affected is none too good either. Traditionally, each family cultivates its own vegetables. Rarely do they come from Srinagar or outside the state. But life has changed post-floods. MAN-MADE CALAMITY Environmentalists have termed the September floods as a man-made disaster. Over the decades, the Valley’s flood drainage system

August 15, 2015

CHILDREN AFFECTED With July being monsoon time, schoolchildren too face hardship. “After a prolonged vacation, children have gone back to floodaffected, damp school buildings. One wonders how much it would affect their health,’’ says Jameel Andrabi, a former politician. For businessmen, the loss has been irreparable. Ashok Bhat, who used to supply carpets to retailers in the Valley, says he lost a huge sum of money that retailers owed him. “Business runs on trust—we supply the stuff and they make the payment afterwards.” “I lost nearly `one crore in the floods as almost every creditor claimed he had lost carpets in the floods.”he said. Knowing well that no insurance or relief would cover his losses, Bhat has shut down the Kashmir part of his business. Photographer Javed, who lives uptown, says: “Going to Lal Chowk (the business centre) is depressing and on top of it, there is the traffic mess.” While he avoids going there, he wonders how long he can do it. In the meantime, people look up at the sky for traces of ominous clouds. For that would spell doom. IL

PROPERTY/ Sree Padmanabhaswamy Temple

Where the Gods Rained Gold With the Modi government pushing its gold monetization scheme for temples, and with the Supreme Court ordering an audit of the richest temple in the world, where does that leave the Travancore royal family? By Jacob George in Thiruvananthapuram

ILL the gold monetization scheme of the Modi government target the rich and famous Sree Padmanabhaswamy Temple in Thiruvananthapuram, Kerala? If the government can effectively implement the scheme with regard to the huge stock of gold and other valuable metals in this temple, it will be a great achievement for the cash-strapped government, but it is not a practical proposal. Touching the treasures of this famous temple is a very sensitive issue. Legally too, the arguments are divided and complicated. Sree Padmanabhawamy Temple is the family shrine of the Travancore royals and

August 15, 2015

hogged the limelight in 2011 when a courtordered inventory confirmed that its underground vaults contained huge treasures. Gold ornaments, vessels and other valuables in five of the six vaults opened by a committee set up by the Supreme Court are estimated to be worth more than `one lakh crore. The sixth vault, which is yet to be opened, is said to have more than what has already been discovered. ASSETS MISMANAGEMENT It was in 2007 that TP Sundararajan and Padmanabhan filed a case before Kerala High Court alleging mismanagement and misappropriation of the templeâ&#x20AC;&#x2122;s assets. On January 31, 2011, the high court ordered

that control of the temple be passed on to the state government. The royal family appealed to the Supreme Court, which, on June 18, 2011, appointed a seven-member expert committee to open the vaults and take an inventory of the temple’s assets. The committee included representatives of the Archaeological Survey of India, RBI, retired judges of the Kerala High Court, the Maharaja and K Jaya Kumar, then additional chief secretary of the state. The committee found dazzling ornaments and objects inside Vault A, including a golden bow and arrow, umbrellas with gold rods, a golden throne for the deity embedded with hundreds of precious gems and stones, heaps of gold coins and hundreds of big gold

chains. News of the treasure hunt spread across the world and suddenly, Sree Padmanabhaswamy Temple was catapulted to the position of the world’s richest temple. “Lord Padmanabhan knows the truth. Some are pointing accusing fingers at us. Because of the court case, we cannot say anything,” said Princess Gouri Parvathi Bayi of the Travancore royal family to India Legal. But the truth is that the Padmanabhaswamy Temple, a true symbol of the past glory of the kingdom of Travancore, no more belongs to the royal family. An interim order of the Supreme Court in the case has severed the centuries-old bond between the royal family and the temple. A five-member administrative committee headed by

GOLDEN HUE (Above and facing page) The riches of Sree Padmanabhaswamy Temple accrue from centuries of royal patronage and faith of the devotees

INDIA LEGAL August 15, 2015

PROPERTY/ Sree Padmanabhaswamy Temple

care not to hurt the royal family. The CPM feels the treasure belongs to the people. The rationalists too have taken the same stand.

TRADITIONAL PATH The temple adheres to its rituals steadfastly

Gold ornaments, vessels and other valuables in five of the six vaults opened by a committee set up by the Supreme Court are estimated to be worth more than `1 lakh crore. 58

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additional district judge KP Indira has taken over the administration of the temple, with district collector Biju Prabhakar and chartered accountant S Vijayakumar as members. Former district collector KN Satheesh is the executive officer. “The temple doesn’t belong to us, but we belong to the temple,” asserts a humble Gauri Parvathi Bayi. Known for their simplicity and ordinary way of life, the members of the royal family are revered by the people of Thiruvananthapuram. Lawyers point out that the wealth of temple came by way of offerings made by devotees over a long period of time. Idols of gods are legally considered perpetual minors and are that way permitted to be in the custody of authorized trustees. “Prime Minister Narendra Modi will not be able to touch the treasures in the vaults of Sree Padmanabhaswamy Temple through any legal procedure or executive order. He may be able to do it through a concensus, but that is very difficult to achieve,” says advocate Shivan Madhathil of the Kerala High Court. Of course, consensus is rarely achieved among politicians and political parties in Kerala. The state leadership of the BJP is of the opinion that the temple and its treasures belong to the devotees. The Congress-led UDF too is of the same opinion, but it takes

ROYAL DECREE Going back in time, Anizham Thirunal Marthanda Varma, the first of the Travancore maharajas, established his rule in 1729. He declared that only the government could buy and sell pepper and other spices. This fetched him huge revenue, all in the form of gold coins. Varma made underground vaults in the Padmanabhaswamy Temple to keep them safely. Towards the end of his reign (1729-1758), he conquered Ambalappuzha, a little kingdom, in the famous Battle for Ambalappuzha, and took over all its valuables. He moved them to vaults in the Padmanabhaswamy Temple. He then dedicated the Travancore kingdom to the Sree Padmanabhan deity in 1750 and declared himself a servant of the deity. He deposited gold and other valuables that he had gained in the secret vaults of the temple. The royal family has served the deity ever since, with the “maharaja” heading the temple management. Subsequent rulers ruled the kingdom for and on behalf of Sree Padmanabhan. After the integration of the princely state in 1947, the royal rule came to an end and most major temples in Travancore, which comprised a large part of southern Kerala and adjoining parts of Tamil Nadu, were brought under a Devaswom Board. But as a special case, control over the Padmanabhaswamy Temple was not taken away from the royal family.

PARTIAL MONETIZATION Meanwhile, the Kerala government is determined to extend all security to protect the temple, says chief minister Oommen Chandy. Rahul Eswar, secretary of the Hindu Parliament (a platform of 108 Hindu organizations brought together with a view to an

“Lord Padmanabhan knows the truth. Some are pointing accusing fingers at us. Because of the court case, we cannot say anything.” —Princess Gouri Parvathi Bayi (left) of the Travancore royal family

inclusive and secular approach to Hindu unity) gives a pertinent suggestion. He says there are three categories of valuables in the temple: those used for daily and periodical temple rituals and festivals as well as ornaments of the deity; centuries-old ornaments and gold coins of immense antique value and ordinary gold ornaments which have only commercial value. “The valuables which have only commercial value, which are also immense in value, can be monetized. Those which are used for rituals should be kept for that purpose and those with antique value can be exhibited for the public to see, for which a fee can be collected,” he suggests. But he admits that a consensus on some sensitive issues is hard to reach because different sections of the Hindu community have different views. “Even with regard to treasure in the Padmanabhaswamy Temple, a consensus is too remote.” Prof MG Sasibhooshan, eminent historian and an expert on the temple, supports this argument. “A huge amount of money is being spent by the state government for providing security to the temple. Ultimately, the temple will have to have its own resources to meet these challenges,” he says. Prominent journalist and historian Malayinkil Gopalakrishnan says that the gold of commercial value can be pledged to the

Reserve Bank of India (RBI). “If it is pledged to RBI, it will fetch a large amount as revenue, which can be used for developmental activities of the bank,” he reasons. Though the apex court has permitted the royal family to be in charge of traditional rituals and ceremonies, it is being kept away from the day-to-day administration of the temple. The apex court, while agreeing with a 500-page report of Supreme Court-appointed amicus curiae Gopal Subramaniam, has ordered the creation of a five-member administrative set-up under the district judge, which will not have any direct representation of the royal family. DAMNING REPORT The order also signaled a critical turn in the long-drawn litigation for transparency in administration and proper audit of the huge treasure in the temple. “There are ‘serious lapses’ in the management of Sree Padmanabhaswamy Temple and the invaluable wealth its underground vaults contain,” said the report submitted in the Supreme Court by Subramaniam. When India Legal contacted him, he said the entire report was available on the internet and that he was not permitted to talk to the media. The report also wanted the court to restrain the head of the Travancore royal family from interfering in the day-to-day affairs of the temple as its trustee. It urged the court to order audit of the treasures by a competent team, preferably led by former Comptroller and Auditor General, Vinod Rai, who camped in Thiruvananthapuram and took stock of the treasures and accounts of the temple. With one more vault remaining to be opened and examined, the treasures of this temple remain an enigma. Will it go the Modi way or remain forever in the dark underground vaults? IL INDIA LEGAL August 15, 2015

PROPERTY/ Mysore Maharaja

A Million Dollar Headache Boston-educated Yaduveer Gopalraj Urs, the new Maharaja of Mysore, has not only inherited massive properties but also a barrage of litigation By Imran Qureshi

T has all the ingredients of a social drama that would make a good movie. After all, nothing sells like royalty in India. So, when a 23year-old undergraduate from Boston went through an elaborate ceremony in May this year to be anointed head of the 600-year-old Wodeyar dynasty, everyone went gaga over it and Mysore hit international headlines. But many did not like Yaduveer Gopalraj Urs to be given the exalted title of â&#x20AC;&#x153;Maharaja

CROWN OF THORNS? Yaduveer Gopalraj Urs with Pramodadevi Wodeyar at his coronation

August 15, 2015

Muhindro Khundrakpam

of Mysore’’ almost 41 years after the last maharaja, Sri Jayachamarajendra Wodeyar, passed away. Jayachamarajendra Wodeyar’s son, Srikantadatta Narasimharaja Wodeyar, who passed away in 2013, was the last recognized Prince of Mysore. Yaduveer is the grand nephew of Srikantadatta. So, why would a young man studying abroad want to be crowned the new Maharaja? IMMENSE WEALTH Sceptics have described the anointment in unfavorable terms. Some have called it him a “King without a Kingdom’’. Others have described royalty as the “biggest landlord’’, given the large properties that will be inherited. Still others consider it the “best real estate deal’’ going for anyone born in the family. That’s natural considering the huge number of properties that the maharaja had declared in 1950, when the state joined the Indian union. These properties include the majestic Mysore Palace, the Windsor Castle-like Bangalore Palace, Lalit Mahal Palace, Jagan Mohan Palace, Rajendra Vilas Palace on Chamundi Hills and Fern Hill Palace in Ooty. There’s also land in various parts of the state. But large portions of the properties were lost because the last maharaja did not think of registering them. So, when Indira Gandhi abolished privy purses in 1971, the reality of

democracy hit the royalty rather harshly. The unregistered lands were either usurped or encroached upon and legalized on the basis of so-called agreements with the last official maharaja, say long-time observers. In many cases, it was simply because there were no caretakers for the property. The Urban Land Ceiling Act too hurt the family. Large portions of the remaining properties are under litigation, from the lowest court in Mysore to the Supreme Court.

UNEXPECTED WINDFALL Yaduveer has inherited the Mysore Palace, besides other palatial properties

PROBLEMS GALORE So, why would Yaduveer agree to be adopted by Pramodadevi Wodeyar, wife of late Srikantadatta Wodeyar, to head a dynasty with so many problems? Or, for that matter, why would Chaduranga Kanthraj Urs (son of late Princess Gayatri Devi, sister of Srikantadatta Wodeyar) file a partition suit in the court of the City Civil Judge, Bengaluru, when the properties have shrunk dramatically over the years with not much hope of a solution soon? Kanthraj Urs was chosen to conduct the

Kanthraj Urs, royal prince Srikantadatta’s sister’s son, claims that Pramodadevi had first proposed his name as the successor. Yaduveer was the fourth choice. INDIA LEGAL August 15, 2015

PROPERTY/ Mysore Maharaja

old son’s name. When I and my wife felt traumatic about it, she suggested the name of Aditya Gurudev, son of Indrakshidevi (another sister of Srikantadatta). He declined. Yaduveer became the fourth choice,’’ Urs told India Legal. His main grouse is that Pramodadevi “became abruptly hostile when the issue of just partition among all the co-heirs was raised by him. Urs’ point is that the 1984 family deed of settlement was “iniquitous, unfair and unconscionable and is also not binding on the plaintiff as he was a minor at the time’’. He also wanted a permanent injunction restraining Pramodadevi from alienating, encumbering or otherwise creating a third-party interest in the properties.

ROYAL GAMES (Clockwise from top left) Kanthraj Urs; Pramodadevi Wodeyar; her deceased husband Srikantadatta; the last maharaja Jayachamarajendra

August 15, 2015

funeral rites of Srikantadatta Wodeyar (who was issueless like several predecessors who sat on the Mysore throne, allegedly because of a curse). Urs’ submission before the court said: “The plaintiff eventually became close to him (Srikantadatta Wodeyar) and it was generally believed that he was being groomed as his successor in matters of state and privileges.’’ Urs’ angst is against Pramodadevi. “No, I wasn’t expecting to be named as successor. I didn’t go begging for it. It was she who proposed that first on January 26, 2014. Within a few hours, she propped up my seven-year-

LINEAL PRIMOGENITURE Pramodadevi declined to speak on any of the issues raised by Urs because she felt it was “subjudice’’. But her objections in the court point out that 1984 settlement cannot be assailed by a grandson “through a daughter of the Mysore Maharaja on the plea that the terms of the settlement are inequitable”. The estate of Jayachamarajendra Wodeyar is an “impartible estate governed by the rule of lineal primogeniture’’. Her basic point is that Jayachamarajendra Wodeyar had created trusts with substantial properties in the names of his daughters. These were still being enjoyed by the children of the sisters. In addition, Srikantadatta Wodeyar had also given maintenance to all the sisters as per the 1984 settlement. The tussle, therefore, boils down to control of the existing properties for possible exploitation of resources in future. “It is fundamentally a problem of real estate,’’ says Prof Nanjaraj Urs, a historian of the Wodeyar dynasty. He’s right, given the fact that even conservative estimates put the value of the properties of the Wodeyar family at “hundreds, if not thousands, of crores’’. So, Yaduveer has inherited property disputes, whose settlement seems a long way off as the court is yet to frame the issues in this civil suit. To a commoner, this would appear like a game of Russian Roulette, where there’s no harm taking a chance since the stakes are so high. IL

LEGAL EYE/ Online Will

Amitava Sen

Rest in Peace T An online will is a new way to secure your assets and leave your loved ones trouble-free. Besides being an authentic document, it is cheaper than paying lawyers By Ramesh Menon

ECHNOLOGY has changed the way we live. And now it has even changed the way we die. Many are now writing their wills online without the help of a lawyer as it is a simple and uncomplicated process. The phenomenon is relatively new in India and just a handful of firms are doing it. HDFC Securities has launched an e-will service and specialized websites too are offering the same service. The fee is as low as `4,000. This is much lower than what INDIA LEGAL August 15, 2015

LEGAL EYE/ Online Will

service which made minor changes and finalized it. He then walked into the registrar’s office in Mumbai to discover that registration of the will would cost just `440. “I was amazed to discover that there are government departments that are so efficient and courteous. I did not pay any bribe. It was all done in just 90 minutes. I am so glad I opted to make a will online,” he said.

“Writing a will is one of the most unselfish things you could do for your loved ones to help them in a critical juncture of their lives.” —Gokul Das, MD and CEO, Warmond Trustees and Executors Pvt Ltd

“Writing a will is a wise decision that will be perceived as wisdom by the next generation.” —Gagan Rai, MD and CEO, National Securities Depository Limited

lawyers charge; some of them charge around `1 lakh to draft a will. Mumbai-based Sharad Samant, 74, a former senior project executive with the State Bank of India, wanted to write a will. He spoke to solicitors. They said that it would cost `25,000 to draft the will and another `25,000 for registration. Samant did some research and stumbled on the concept of an online will system. He found that it costs just `5,000. He wrote the draft and sent it to an online will

Secure assets What assets can be covered under the will? All movable as well as immovable assets, including real estate, fixed deposits, bank accounts securities, bonds, proceedings of insurance policies, retirement benefits, art, precious metals like gold and silver, photographs, sketches, blogs, websites and other digital assets and Intellectual Property Rights. In short, any asset that the author of the will has in his ownership at the time of his death can be included.

August 15, 2015

URGENCY OF WILL Writing a will has become more relevant today as many families have fractured relationships. Even corporate families are increasingly breaking up, unlike the old times when they bonded together for the sake of business. Mumbai-based Gokul Das, Managing Director and CEO, Warmond Trustees and Executors Pvt Ltd, says: “Writing a will is one of the most unselfish things you could do for your loved ones to help them in a critical juncture of their lives.” Out of many reasons why people don’t make their will in India is lack of awareness. Others avoid doing it fearing the expense. Many also delay doing so thinking it is too early to write one. And, then, death deals a sudden blow. Many families suffer financially when the person they depend on suddenly passes away without making a will. Determining who gets what becomes complicated and there are invariable fights. Gagan Rai, Managing Director and CEO of National Securities Depository Limited, which is the depository for the equity market in India, says: “Writing a will is a wise decision that will be perceived as wisdom by the next generation.” And it has become so much easier to do so. The online explosion has dramatically changed our lifestyles, the way we shop, conduct our financial transactions, pay our taxes, fix our insurance policies and communicate with each other. Writing an online will is another new trend punctuating this sphere. EASY PROCESS An online will is drafted by registering oneself on the portal of the company that deals with online wills. To begin with, you fill in details of your assets and heirs in a standard format. You then upload it on the portal. The will is then

drafted by legal experts and sent back to you for a review. Once you confirm it, the will is finalized and is either emailed or sent by post, depending on how you want it. Now, carefully review the data to check for errors. You make the payment online too. After incorporating the changes, if any, the will is emailed or sent by courier. Rest in peace now. Make sure the will is signed in the presence of two witnesses. Otherwise, it will not be valid. You might want to have a doctor certifying that you are of sound mind. This will avoid legal complications that could arise if some relative challenges the will saying that you didn’t know what you were writing. The e-will can be updated or changed later if you want. It is not carved in stone. In the West, writing a will is almost a given, with over 70 percent of people opting for it. However, in India, it is yet to reach the double digit mark. But succession planning will pick up here too with more wealth being created. Rajesh Narain Gupta, managing partner, SNG Partners, Mumbai, told India Legal: “The online will platform is a great boon, not only to wealth management players, but also to all those who cannot afford the expensive fees of a lawyer. Succession planning is an integral part of wealth management. Will writing is bound to gain momentum with growing wealth and the online platform will provide easy access. It has created a good ecosystem around the wealth management space.” LOWER COSTS The cost of a normal will can vary, based on location, asset size, estate planning requirements and the experience of the lawyer. Normally, a lawyer would charge more than `10,000 for drafting a will. Lawyers charge much more if the wealth of the individual is huge. Compared to that, an e-will is easier to make. It saves time and is cheaper. Online will writing services started last year. They were joint ventures of NSDL e-Governance Infrastructure with Mumbaibased Warmond Trustees and Executors and HDFC Securities with Legal Jini. While NSDL offers the service via a new website, www.ezeewill.com, HDFC Securities’s e-will service is an addition to the bouquet of online services that the firm offers. NSDL e-

“The online will platform is a great boon, not only to wealth management players, but also to those who can't afford the expensive fees of a lawyer” —Rajesh Narain Gupta, managing partner, SNG Partners, Mumbai

Get cracking Why is it important to write a will? A will ensures that your interests are taken care of and your dear ones have a seamless and trouble-free transfer of assets. It is an authentic document. If you have not left a will, your wealth will be distributed as per the law. It may not match with your wishes.

Gov and Warmond Trustees and Executors tied up with the largest and the oldest private sector bank in Kerala, Federal Bank. This exclusive tie-up will offer the EzeeWill facility through the Federal Bank website. Radhakrishnan Palakkot, 59, who runs a factory of construction components in Pallakad in Kerala, opted to make an online will as he found that it has a privacy of its own. “Besides, it was so comfortable and easy to do. There must be awareness created about this modern service,” he said. Many worry that if they opt for the friendly online will process, their personal details will be out in public space. That should not be a cause of worry. Service providers offer security of information, as this is a highly sensitive financial matter. Portals assure confidentiality and safety of the personal data submitted. In fact, they remove all the details from their records once the online will is finalized. So rest easy. IL INDIA LEGAL August 15, 2015

ENVIRONMENT/ Construction and Demolition Waste /New Bylaws

The Waste Land

India’s construction boom generates huge amounts of waste, which in 2013 was pegged at 50 million tons. New draft rules have now been introduced to tackle this growing menace By Papia Samajdar

OFFICIAL APATHY (L-R) Nobody cares about recycling or reusing C&D waste in India

August 15, 2015

N April this year, the Ministry of Environment and Forests (MoEF) and Climate Change introduced a set of draft rules—Solid Waste Management Rules 2015—for public comments. One of the significant provisions of these draft rules is a comprehensive and separate mention of construction and demolition (C&D) of waste and its reduction, reuse and recycling. C&D waste has been one of the most neglected categories of waste in India—both in terms of official laws or policies as well as efforts

towards recycling or reusing it. And, it is a category that is a cause for concern. One look at the statistics explains why. India is on the brink of a construction boom, and its real estate sector has been growing at 10 percent per annum over the last decade, as against the world average of 5.5 percent. Approximately 70 percent of the building stock in India is yet to come up, and the built-up area is expected to swell almost five times by 2030, from the base year of 2005. This will involve generation of huge

Photos: Anil Shakya

quantities of C&D waste. While no single authority has been tracking its generation, unofficial estimates in 2013 by the Centre for Science and Environment (CSE) says India generated 530 million tons. The environmental impact of this could swamp and choke our urban centers unless we wake up.

efore we go any further, let’s understand what constitutes C&D waste. This consists of debris generated during the construction, renovation, and demolition of buildings, roads, bridges and other infrastructure. It often contains bulky, heavy materials, such as concrete, wood, metals, glass and salvaged building components. Estimates by the Ministry of Urban Development (MoUD) and municipal bodies of generation of C&D waste have a large variance. The Manual on Solid Waste Management, 2000, issued by the Central Public Health & Environmental Engineering Organization (CPHEEO), says 300 million people living in urban India produce 38 million tons (MT) of municipal solid waste (MSW) per year; the percentage of total C&D waste generated is 10-12 percent of the total MSW generated.

CSE has calculated its estimations taking into account construction of 5.76 billion square meter (sqm) of floor space from 20052013. If the Technology Information Forecasting and Assessment Council’s (TIFAC’s) thumb rule is applied—which states new construction generates 60-50 kg of C&D waste per sqm—then in 2013, India generated 50 million tons. As anyone can see, the difference in the two figures is very stark, with CSE’s estimate almost 44 times the amount quoted by the MoUD. According to the working sub-group on C&D waste set up by the Delhi government, under the chairmanship of M Shankarnarayanan of CPHEEO in 2006, one-third of municipal waste generated in Delhi consists of C&D waste. He says that 2,500 tons per day (TPD) of C&D waste is generated by the Municipal Corporation of Delhi (MCD) area alone—with the total MSW waste generated being pegged at 6,000 TPD. According to a 2010 note by MCD, as per the Census of India, there are about 2.45 million properties in Delhi, of which roughly 0.9 million are assessed ones. Even by a conservative estimate, using TIFAC averages, Delhi should be producing 4,600 tons of C&D

THE FLIP SIDE The construction boom will generate huge quantities of C&D waste

Unofficial estimates in 2013 by the Centre for Science and Environment says India generated 530 million tons of Construction and Demolition waste. INDIA LEGAL August 15, 2015

ENVIRONMENT/ Construction and Demolition Waste /New Bylaws

While there are fixed areas where C&D waste is dumped, illegal dumping takes place in landfills, empty plots, catchment areas, low-lying places and river beds. waste. However, the MCD’s records point to about 1,000-1,200 tons only.

HOPE DAWNS The C&D waste processing plants can recycle the waste generated

August 15, 2015

isposing C&D waste remains a problem. While there are some identified areas where this waste is dumped, large-scale illegal dumping happens in landfills, empty plots, catchment areas, low-lying or marshy places. The waste also finds its way to river beds, with serious consequences. There are other environmental concerns about C&D waste and its disposal. India has no more land now for creating new landfills. Moreover, the production processes of some building material—such as Portland Cement—can lead to greenhouse gas emissions. The mining of minerals is not a sustainable business and will not be able to support the construction boom. So what is the solution? Reuse and recycle C&D waste and turn it into an asset. But that is easier said than done. C&D waste finds a brief mention in the Municipal Solid Waste Rules notified by the Ministry of Environment and Forests in 2000. The rules lay the respon-

sibility for collection, segregation, storage, transportation, processing and disposal of municipal waste on municipal authorities, and give the Department of Urban Development of the concerned state and/or union territory the responsibility of enforcement. Schedule 2(1)(vi) mentions that C&D waste should be collected and disposed of separately from the rest of the municipal waste and follow proper norms—these norms are to be decided by each state. But due to fogginess over accountability—the responsibility for enforcement lies with a different ministry or department and there is weak implementation of rules. The MoEF, which drafts the rules, is dependent on another ministry for their implementation at the state level. Finally, who is accountable?

here have been a few serious efforts towards recycling this waste. One of the recommendations of the sub-committee instituted in Delhi focused on setting up a C&D waste processing and recycling plant to recycle 500TPD of waste. In 2010, IL&FS Waste Management & Urban Services Limited (now IL&FS Environmental Infrastructure & Services Limited) was granted permission to set up India’s only C&D waste processing plant under the Air & Water Acts by the Delhi Pollution Control Board. Land was given in Burari by the MCD. The plant is operational. It has brick and

bat processing units, a concrete block processing unit, an RMC (Ready Mix Concrete) plant, a tile-making plant and a pavement block-making plant. The plant says it is processing 1,200 TPD currently. It has helped reduce the load on landfills, uses treated effluents supplied by Delhi Jal Board and has reportedly saved the Yamuna from being clogged by 15.4 lakh tons of debris. A committee set up to look into BIS regulations is likely to include C&D aggregates in its policy soon. Once the aggregate is allowed, the end-products will be used by government departments and larger builders. The Delhi-based Central Roads Research Institute (CRRI) has tried using C&D waste for road construction. Extending this laboratory work, test road construction has been undertaken in Delhi. CRRI will now develop guidelines for C&D waste reuse in roads.

eanwhile, the draft rules have stressed on reduction, reuse and recycling of C&D waste. Chapter 1 of the rules clearly mentions rules for all solid waste, barring C&D waste: this has been done to give this category its due importance. This is a welcome move. Chapter 2 is dedicated to C&D waste, where the waste generator must give an undertaking for collection, segregation and disposal. Large generators are required for this and appropriate approvals for solid waste disposal are needed before construction can be started. Urban bodies have been asked to provide a detailed plan for proper management of the waste generated. These bodies also have the liberty to provide incentives to a generator who provides a plan for reuse or recycling. Urban bodies are also mandated to maintain a yearly database of the construction waste generated within their jurisdiction. There is a provision for expert committees to provide inputs on recycling the waste. Apart from these provisions, which should

be able to create space for the market to be interested in recycling and reusing this waste, the rules now include provisions for public awareness through the ministryâ&#x20AC;&#x2122;s websites, workshops and other dissemination programs. The demand for pushing policy to create market mechanisms, where demand would be generated for the use of recycled waste products has been accommodated in the draft rules. Inclusion of incentives for recycling and use of recycled material may enable the rules to ease the pressure on naturally sourced resources such as sand. Even with its unabated illegal mining, the demand is unsustainable. The implementation of the rules, when notified, however would remain a challenge, especially in the case of older construction. The rules do not mention anything about repair work, and that would remain a challenge too. The good thing is that the rules are quite progressive. They need to be implemented strictly by the urban bodies and monitored vigorously by the CPCB. IL

ENVIRONMENTAL DISASTER Rivers like this are dying a slow death due to dumping of waste

â&#x20AC;&#x201D; The writer is a senior communications officer with the Centre for Policy Research. She has also worked with the Centre for Science and Environment. INDIA LEGAL August 15, 2015

HUMAN RIGHTS/ Jail Reforms

Jailhouse Rock

In a new initiative, danseuse Alokananda Roy has introduced dance-drama to prisoners in Alipore Women’s Correctional Home, infusing the inmates with hope, self-esteem and a brighter future By Sujit Bhar

Madhuparna Banerjee

Sujit Bhar

Take up one idea. Make that one idea your life—think of it, dream of it, live on that idea. Let the brain, muscles, nerves, every part of your body, be full of that idea, and just leave every other idea alone. This is the way to success, that is the way great spiritual giants are produced. —Swami Vivekananda

IN STEP WITH TIMES (Left) Children of jail inmates perform on the opening day of school; (Right) Alokananda Roy with an undertrial

August 15, 2015

FTER two hours of fun and play, it was time for threeyear-old Sumi to leave “school” and head for “home”. “Ebare bari jete hobe (Now you have to go home),” Alokananda Roy, well-known danseuse and social reformer, gently told her in her mother tongue, Bengali. “Bari? (Home?)” was the little girl’s surprised query. For her, home is jail with its high, forbidding walls. She was born there to a mother who was jailed. How would she know what “home” is? Not that she knew

what “school” was either, till she came to Roy’s pioneering effort—Heartprint—a “school” within Alipore Women’s Correctional Home in Kolkata. POSITIVE POSTURES This is probably the first time that such an effort has been made. Roy had earlier designed “culture therapy” for jail inmates. Her brilliant plays with them, many of whom were hardened criminals, have astounded jail officials and common people alike. She has given hope to those who had none and nurtured talent where there seemed to be none. Roy says: “You may have made a mistake once in your life, but there’s always a way out of that misery.” From then on, teaching innocent kids was a natural transition. “It’s no fault of theirs that they are in jail. They are as innocent as any other child and proudly independent,” explains Roy. “Take Sumi, for example. She prefers to be called by her proper name, Aparajita (undefeated). Her only outing, when she dresses up in bright clothes, is when she accompanies her mother for court hearings. Is that a life of a child?” Roy became associated with these children, thanks to the efforts of BD Sharma, additional DGP, West Bengal. He was responsible for correctional homes around the state and helped Roy put together stage plays involving jail inmates. When he told her that something needed to be done for the kids, Roy went around the jail talking to the inmates. “I bonded with them and became their ma, their mother, somebody they could look up to and trust,” she says. Imagine being ma to many hardened criminals; such was her demeanour and aura. It was also about trust. Whenever she speaks, she has the attention of her audience and slowly, their trust. “That’s a great gift for me, their trust,” she says. And that’s why these criminals have travelled with her (along with an escort) to several venues in the city and beyond and nobody even thought of escaping. So how does her “culture therapy” work? Roy explains that the carefully selected dance-dramas allow hardened criminals and undertrials to realize their true potential,

“Can you ask my father to come?” A peek into the sorrow and loneliness of children whose parents are undertrials or facing a jail sentence HERE’S a story, as told by Alokananda Roy, of a child whose father was in jail, while she and her mother lived in their village, ostracized. “It was late night one day when I got a call on my cell phone,” she says. “There was a little girl on the other side, the daughter of a jail inmate who was involved in one of my drama projects. ‘Dida (grandma), ma is not well,’ she said, sobbing. ‘Can you come and take her to the doctor, dida, or can you get my father to come? I can’t do it, I am too small.’” “I was shocked. What could be done at that hour? I quietly asked her why she couldn’t ask her aunt next door to take her mom to the doctor. Her answer shocked me even more. ‘Nobody talks to us in this village,’ she

said. Even over the phone, I could feel the fear and desperation in her voice. She pleaded: ‘Can’t you ask my father to come and take my mom to the doctor, dida?’ “What could I tell the child that night? Tell her that her father was a convicted felon and that he won’t be out of jail for a long, long time? Of what good was the immense trust that she had posed in me?” The responsibilities that come with such delicate issues are immense. Reformers such as Roy have to walk on eggshells all the way. One wrong step can tear the delicate bonding that binds such reformers to jail inmates and their families. Meanwhile, Roy finds it worth investing time and energy in them.

Madhuparna Banerjee

raising their self-esteem and strengthening their desire to reintegrate with the world outside. It’s a matter of loving oneself. Heartprint was inaugurated in May by Haider Aziz Safwi, minister-in-charge, correctional administration, and has 48 kids. Dressed in checked uniforms, the kids, between 2 to 10 years, marched proudly to school with their school bags and were

RIGHT BEGINNING Minister-incharge Haider Aziz Safwi inaugurates the school

INDIA LEGAL August 15, 2015

HUMAN RIGHTS/ Jail Reforms

PROPER ACT Jail inmates get ready for the play, Valmiki Pratibha, in Kolkata

LOCK & STOCK There are 1,391 pris-

ons in India. They accommodate 4,11,992 prisoners against the authorized capacity of 3,47,859, amounting to a 118.4 percent occupancy rate. Jails have 67.6 per-

cent undertrials, 31.5 percent convicted persons and 0.9 percent “civil prisoners and detainees”. Rate of imprisonment

is 32 prisoners per one lakh population, one of the lowest in the world. There are 19 jails for

women. Of the total authorized capacity of 3,47,859 inmates, there is provision for only 4,827 women (1.4 percent). But in reality, there are 18,188 women inmates. 342 women convicts

with 407 children and 1,252 women undertrials with 1,518 children are lodged in various jails in India —Sujit Bhar

August 15, 2015

Sujit Bhar

struck by the toys, small tables and books there. Roy also managed to get a television set for the green school on the west side of the jail compound. It is approximately 18x30 sq feet and has started recruiting teachers. The school needs more material— books, toys, Montessori-type teaching elements—even as Roy’s NGO, Touch World, accepts donations. Roy says: “Touch World is our jail project. I prefer to call it a movement now.” She now wants this unique project to be replicated in other jails in West Bengal, various states and abroad too. ON A COMMON PLATFORM As for adult inmates, her plans have grown beyond her expectations. They have travelled extensively, giving public performances even in Raj Bhawan, Kolkata, and Shantiniketan. They have also been to Mumbai, Delhi, Pune, Bangalore and Bhubaneswar on the invitation of social organizations. Roy explains: “This has brought about a bond of a different nature—not of jailor and jailed—but talent coming together on equal terms. It is essential that they get accepted

and recognized as artists as the applause can change them from inside.” But more than that, what the inmates have gained is what they had lost—self-esteem, dignity and respect. And these, says Roy, have become precious for them. The children of the women inmates were natural corollaries to this effort. She says: “These children are devoid of the notion of family, care and social values. Many were born in jails and do not know the concept of home.” Roy also plans to impart basic learning and life skills. Although the kids technically walk from one room to another to attend school, they enter a different world, a world beyond their dreams. Roy has been busy tying up with other like-minded organizations, including the corporate world, to develop her venture. Touch World is in dialogue with Metro Cash and Carry to open a store in the correctional home. The store will be operated by inmates after Metro provides training and awards certificates, which will help them to be rehabilitated after release. Talk about giving the inmates a future to bank on. IL

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SOCIETY/ Muslims/Ghettoization

NO CHOICE In Delhi, Muslims are forced to stay in places like Batla House, in Jamia Nagar

Minority Malaise The story of traditional Muslims facing housing problems is an old one. But now, even educated and well-travelled Muslims are finding the door shut in their face. When will this polarization end? By Sabiha Farhat

August 15, 2015

Anil Shakya

When you wipe your eyes see it clearly, Thereâ&#x20AC;&#x2122;s no need for you to fear me, If you take your time and hear me, Maybe you can learn to cheer me, â&#x20AC;&#x201D; Ghetto Gospel, a 2005 pop hit

ABASSUM, a 28-yearold vibrant, independent woman, has just bought herself a fully automatic Volkswagen, her dream car, without a loan. Ask her how she managed to shell out such a big amount and she looks serious. She says she did so by continuing to stay in a small, congested DDA colony even when she could afford a better home. She recounts the travails of looking for a bigger, rented home. Her family consists of a

TRUST FACTOR The well-to-do Muslims looking for an upscale accommodation are turned away on flimsy pretexts Anil Shakya

younger brother and a retired mother. As her brother was also earning, they decided to move to a bigger, better-located house from the 2-BHK house they owned in an old DDA colony in West Delhi. They searched for six months for a 3-BHK house in an upmarket society with the help of property dealers but nothing materialized. Finally, one landlord agreed to rent them the house as his wife was the brother’s ex-principal. They came to an agreement, but when they went to pay the advance, the landlord and his wife seated them and went to great lengths to appreciate “us Muslims”. “But she refused to accept the advance. The landlord explained that they had consulted their children abroad and they were not in favor of renting out the house to ‘Muslims’”, says Tabassum. She finally stopped the search as “the rejection was too strong, too much and too humiliating”. They continue to live in the congested DDA colony. Such stories show the increasing ghettoization in Indian society.

HOUSING ISSUES A study done by TwoCircles.net, a non-profit voice for marginalized sections, looked at membership records of all housing societies registered in New Delhi from December 2012 to October 2013 to find the percentage of Muslims in them. There were 1,345 housing societies which had no Muslims, while 544 housing societies had less than 10 percent members as Muslims (See graphic). As for Muslim dominated societies, there were 31 of them, where Muslims owned 90-100 percent of the houses. So essentially, there were 1,889 (1,345+544) Hindu-dominated societies versus 31 Muslim-dominated ones, showing clearly that society was polarized. “This is a disturbing trend for the future of plural India,” says Kashif-ul-Huda, the founder member of TwoCircles.net. While poor and economically deprived Muslims were always at the lower end of the social ladder and victimized, what is shocking today is that even upwardly mobile, welleducated Muslims like Tabassum are facing the brunt of this blatant communalism.

While poor and economically deprived Muslims were always at the lower end of the social ladder and victimized, today even upwardly mobile and well-educated Muslims are facing blatant communalism. INDIA LEGAL August 15, 2015

SOCIETY/ Muslims/Ghettoization

“Ghettoization has become a fashionable word” Increasing polarization in society has led to various ghettos. What is needed, says Naseem Ahmad, chairman, National Commission for Minorities, is a social movement to remove these schisms. Excerpts from an interview with Sabiha Farhat:

Why is it becoming increasingly difficult for Muslims to find houses in Delhi and Mumbai? This malaise exists and even my own family has faced it. And it is not confined to metros like Mumbai or Delhi. It is prevalent everywhere. And the excuses (given by landlords) are trivial, including we want people who are vegetarians. There are deeply ingrained

prejudices against Muslims. But what should be done about it? What does the law say? Section 153B of the IPC is not enough to take care of this kind of discrimination. There should be anti-discrimination laws with special bodies to take cognizance of such matters. We need to create space for equal opportunities.

Aiman, 30, the chief technology officer of a Bangalore start-up—with degrees from Delhi College of Engineering and University of Chicago—learnt it the hard way. In 2012, when he got married, he wanted to live near his parents in Dwarka, Delhi. Soon he realized that his degrees, job and global lifestyle could not help him find a house. He was never directly denied a house. But after many refusals, the only landlord who agreed to rent him a house was a Muslim.

SECOND CLASS CITIZENS? Children playing in the forecourt of Jama Masjid after offering namaz on Eid-ul-Fitr

Perception fallout

UNI

Muslim members in housing societies registered in New Delhi from December 2012 to October 2013

No of housing societies 1345 544 15 5 1 4 3 4 2 6 31

Percentage of Muslim members 0 0-10 10-20 20-30 30-40 40-50 50-60 60-70 70-80 80-90 90-100 Source: TwoCircles.net

August 15, 2015

PLATFORM FOR MUSLIMS The unnerving fact that Muslims were turned away from renting houses despite their buying capacity pushed Junaid and Hassan Ali, two engineers from Aligarh Muslim University and IIT Bombay respectively, to create a housing portal. Called Aligproperties.com, it is an attempt to help the Muslim community move out of the ghettos. The website, launched on January 1, 2014, already has over a lakh visitors. Junaid says: “There are Muslims with money struggling to find a good location with modern facilities, such as sports arenas, gymnasiums, pools, parking space, greenery and sanitation. They don’t want to live in areas like Okhla, Batla House or Daryaganj. We offer them a platform to search for places outside of ‘Muslim areas’.” Anees Saab is 75 years and lives with his wife in up-scale Gurgaon. He says that every time he puts up an advertisement to rent out his second floor, a large number of Muslims call him. Most have migrated to Gurgaon for jobs. He says: “Millennium city is, in reality,

Ghettoization has become a fashionable word. But it is not limited to just renting houses. It includes schools and work places too. So more than a judicial body, what is needed is for civil society to rise to the occasion. We need a social movement. Is the Minorities Commission involved in such cases and do people come to you with housing issues? We are simply a watchdog, not a judicial body. We don’t prosecute people. We highlight discriminatory actions of state

bodies or non-state actors and recommend measures. That is our role. We are neither implementing any welfare scheme nor doing any financial intervention; that is done by the ministry. We had a case in 2013 where a portal called “99 acres” put out an advertisement for a house that had a “No Muslims” tag. A petition was filed and a notice issued to the owners and proprietors of this portal. They were asked to make some interventions so that the portal was free of such objectionable and malicious content. What happens in cases where it is

an orthodox society. It may deliver on the promise of better jobs, but it certainly disappoints as a truly cosmopolitan city.” Then, there is Sehba whose story goes back to 1999, when she tried to shift her retired parents from Aligarh to Gurgaon. She could not even get to meet the owners as her surname was “Imam”. Fortunately for her, her husband, Murli Gopal, took upon himself the task of meeting the owners. “Delhiites like to give their houses to South Indians,” she says with a laugh. So, Murli convinced one of the landlords to at least meet his inlaws. When they all met, the landlords admitted that their perception was wrong. “In fact, they complimented us on being so different,” says Sehba. Of course, the irony of how the “faithful” from one community was willing to accept “non-conformist” Muslims was not lost on her. “While instances of such segregation are only now being reported, the trend started in the 90s. This was one of the reasons why Murli and I bought our own house within five years of marriage. It was a humiliating experience.” CONTINOUS STIGMA Ghettos, by definition, are places where stigmatized minorities live together, often in poor housing conditions. Though those living outside it are able to skip the poor housing conditions, the stigma follows them everywhere. And with political dispensations saffronising society, the rift is wide. Sameena, a student, says: “When I was looking for a maid, one of them started questioning me about my eating habits. She actually asked

difficult to prove the bias? I will advocate for a distinct anti-discrimination law, not only for Muslims but for everyone. That is the need of the hour. It will take care of all minorities. There should also be a diversity index system, which tests the strength of organizations on the basis of the people they employ from weaker sections or minorities. This can be made mandatory, like CSR initiatives for companies. Civil society also has to help. We need foras for inter-faith dialogue and common celebration of festivals. The atmosphere is too vitiated now and something has to be done.

UNI

me if I ate beef? And this was 2-3 years ago, much before the beef ban controversy. I got so angry that I asked her if she was a Brahmin? But I realized that she was a mere tool in the hands of those doing this polarization.” Anju, a lawyer, corroborates: “I called up a maid bureau in Gurgaon and was told that there were two maids available, a young girl and a middle-aged lady. When I told him that I preferred a middleaged woman, the owner immediately told me that she was a Muslim and that I should let him know if I had any objections to that. It was obvious that he had clients with religious preferences.” It is these narrow-minded practises that will pull India down and make it a laughing stock among world powers. IL

THE PRICE OF BIAS Muslims in India pay dearly for the deeply ingrained prejudices against them

INDIA LEGAL August 15, 2015

INTERNATIONAL BRIEFS

Greece passes crucial bailout reforms WITH THE passage of a radical set of reforms by its parliament, Greece has reached one step closer to reap the benefits of bailout funds. The reforms were preconditioned by European Union for a €86bn bailout. Though there were speculations of a rebellion by the ruling party MPs, Prime Minister Alexis Tsipras was able to gather sup-

Uber approaches Europe’s apex court AFTER A series of bans across Europe, California-based online ride service provider, Uber Technologies, has approached the European Court of Justice (ECJ) to clarify whether national transportation laws across the region can be applied to online services. Earlier, the company requested a Barcelonabased court to refer a similar case to Europe’s top court. Uber claimed that outdated rules are being used to favor already established taxi companies.The ECJ is to decide whether Uber is a transportation company or an online infor-

UAE criminalizes religious intolerance

THE EMERGENCE of more and more extremist groups and religious intolerance is leading many countries to introduce strong legislation to curb the menace. The United Arab Emirates has formulated a law to combat religious hatred and intolerance. Discrimination based on religion or ethnicity will be considered an offense. Labelling the followers of other religions too has been made a criminal offense. Encouraging hatred through hate speech in all forms of media has been proscribed in the new law. Provisions of Imprisonment, from six months to ten years, along with a penalty up to $ 5.5 lakh have been included.

August 15, 2015

mation service. According to Uber, the latter would strengthen its position. Under current laws, European countries have full control over transportation, though online services do not come under these rules.

Surveillance law annulled in the UK THE UK High Court has ruled against the emergency surveillance legislation passed by the government last year, as judges found it inconsistent with EU law. The litigation was filed by Labour MP Tom Watson on the ground that it lacked privacy safeguards. The act was framed to regulate methods to be used by investigative agencies to gain access to communication data provided by phone and internet companies. Judges found two errors in the law—it did not stress on the establishment of an authority which would ensure that only necessary information is being examined. Two, there was no definition as to what would qualify as a serious offense in need of examination.

port to win the motion with 230 votes in favor and 63 against it. The reforms include higher taxation, changes to banking rules and an overhaul of the judicial system. Representatives of the European institutions which would provide the bailout have to soon begin the negotiations on the terms of the deal in Athens.

Landmark Japanese bill on defense THE LOWER house of the Japanese parliament passed two controversial bills. The changes would allow Japanese troops to fight overseas for the first time since World War II. With two-thirds majority in the upper house, the government will be able to pass the amendments successfully, say experts. The amendments will change the military doctrine called “collective self-defense” to expand the role of the military beyond the political boundary of the country. However, neighboring powers like South Korea and China have expressed concern over this shift, as it may escalate tension in the region. Moreover, even after the changes in the law, Japan’s army would be able to mobilize overseas only when Japan is attacked and there is a threat to its survival or when a close ally is attacked.

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IS THAT LEGAL?

Defective Chinese products Nowadays, many Indian companies in the electronics’ sector, market Chinese products in India. If an accident occurs due to a defect in the product, the consumer will drag the Indian company to a court in India. But can the Indian company marketing the product take the Chinese manufacturer to any court in India, China, or in any international court? If the place of doing business is in India or the office of the Chinese company is in India, certainly the affected consumer in India can file a case against the Chinese company

for compensation, as well as make the Indian company liable for it. At the same time, the Indian company marketing the product may also sue the Chinese producer in an Indian court under the Indian Contract Act, 1982, for not meeting the desired level of quality. Legal remedy may also be sought under Sales of Goods Act, 1930 for damages, if any. In case the matter comes up for arbitration before a neutral party, the judgment or award is equally applicable for any foreign company.

Rape mediation in films Recently, the Madras High Court judge’s verdict suggesting mediation in a rape case was criticized by legal experts. Even the apex court has ruled there is no scope for compromise. But we see rapists marrying victims in several movies. Can legal action be taken against filmmakers for suggesting compromise? The legal standpoint on rape is that the offense is non-compoundable. In other words, the victim cannot enter into a compromise with the accused and agree to have the charges dropped against him. Therefore, even if a rapist realizes his mistake and agrees to marry,

the offense would still remain valid for conviction. As far as showing “compromise” in films is concerned, a petition can be filed in courts for injunction against such films on the grounds of violating public order and breaching morality. However, criminal action may not be initiated against filmmakers, as they can easily claim their intention was to send across the right message to the society. After all, nobody can stop a rapist and the victim from deciding to marry if they wish to, and there is no harm if the rapist accepts her with dignity. But the offense remains liable for legal action. Illustrations: UdayShankar

Action against civic bodies It is not uncommon to find waterlogged drains during monsoons in Delhi, resulting in a traffic mess. Every year, civic authorities claim that they have desilted major drains, but the city is again submerged. Can they be dragged to court? Section 42 of the Delhi Municipal Corporation Act mandates that it is the duty of the municipal corporation to clear drains and remove any obstruc-

August 15, 2015

tion. In case it doesn’t happen, the commissioner and the concerned officials may even be booked for criminal action under the Act. Action can also be taken against them for making wrong claims. If anybody suffers a loss due to water-logging, the municipal corporation, under civil law, is bound to compensate him or her, in case a claim is made and the negligence proved.

1. Unwanted third person. A: Red herring B: Gooseberry C: Queer fish D: Black sheep 2. Compulsion to steal. A: Robomania B: Automania C: Hidomania D. Kleptomania 3. Who’s a blackleg? A: Mine worker B: Fraudster C: One who works during strike D: Thief 4. She said: “ATB”. A: All The Best B: All The Boys C: Away To Bank D: Ask The Boss 5. Shaggy-dog story. A: Children’s story B: Boring novel C: Long joke with silly end D: Cartoon show 6. Lady’s slipper. A: Orchid B: Skate C: Necklace D: Hatred 7. To lie doggo. A: To brag B: To relax

Have fun with English. Get the right answers. Play better scrabble. By Mahesh Trivedi

C: To hide D: To surrender 8. One pair is wrong. A: Meat and eat B: Fife and drum C: Chalk and cheese D: Cheap and nasty 9. Willy-nilly, pell-mell but fiddle- …. A: middle B: faddle C: twiddle D: riddle 10. Fear of the dark. A: Photophobia B: Necrophobia C: Xenophobia D: Nyctophobia 11. Just my luck! A: I am lucky! B: I am unlucky! C: I trust my luck! D: Only I am lucky! 12. Shooting the breeze. A: Talking idly B: Talking to corpse C: Break wind D: Taking a walk 13. Dead from the neck up. A: Sleeping B: Stupid C: Dead D: Deaf 14. Correct spelling?

A: Millenium B: Millennium C: Milennium D: Millenniam 15. A “foxy lady” is …. A: cantankerous B: rich C: unintelligent D: sexually attractive 16. A curate’s egg. A: Good in parts B: Excellent C: Rotten D: Unbreakable 17. Profanum vulgus. A: Foul language B: Slum-dwellers C: Petty thieves D: Common herd 18. Necessity knows no …. A. manners B. law C. time D. status 19. Thrift is a great …. A: revenue B: virtue C: habit D: art 20. Dull in the eye. A: Partially blind B: Eve-teaser C: Drunk D: Old man

ANSWERS

1. Gooseberry 2. Kleptomania 3. One who works during strike 4. All The Best 5. Long joke with silly end 6. Orchid 7. To hide 8. Meat and eat 9. faddle 10. Nyctophobia 11. I am unlucky! 12. Talking idly 13. Stupid 14. Millennium 15. sexually attractive 16. Good in parts 17. Common herd 18. law 19. revenue 20. Drunk

Y L D R WO ISE

SCORES

0 to 7 correct—You need to do this more often. 8 to 12 correct—Good, get the scrabble board out. Above 12—Bravo! Keep it up! textdoctor2@gmail.com

INDIA LEGAL August 15, 2015

PEOPLE / Age Of Innocence

BLISSFUL ABANDON Children laugh as they swim with floats at a seashore covered by algae, in Qingdao, Shandong province, China

HAND-IN-HAND A boy sits next to a Shin-chan model during an exhibition in Joy City, Beijing HANGING OUT Children at a park in Dharavi, Asia's largest slum, in Mumbai

COWBOY ON WHEELS A woman walks with her dog and child in front of police vehicles, following a visit by US President Barack Obama and German Chancellor Angela Merkel in Kruen, South Germany

August 15, 2015

CUDDLY MERMAID A baby and her mother take part in the Mermaid Parade on the streets of Coney Island in Brooklyn, New York

DIVINE EMBRACE Pope Francis holds a baby during his weekly general audience at Vatican City â&#x20AC;&#x201D; Compiled by Kh Manglembi Devi Photos: UNI

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