india legal 15 october 2015 by India Legal

UNTOLD STORY OF THE DENGUE EPIDEMIC 34

NDIA EGAL I L How politicians and hospitals duck legal obligations Plus: Ajith Pillai’s personal nightmare

www.indialegalonline.com `100

October 15, 2015

STORIES THAT COUNT

RESERVATIONS

FOR ALL or FOR NONE? Kalyani Shankar on the quota debate which has lit a fire in all political parties following the Patel agitation and Bhagwat’s pronouncement

Hardik Patel

Mohan Bhagwat

RAMESH MENON: Unending stalemate over NJAC

SEEMA GUHA: Nepal’s constitution hits home

SAJEDA MOMIN: Asserting Desi rights in UK

DINESH SHARMA: BIKRAM Volkswagen’s bug VOHRA: Is this the in the ointment 72 way to treat your servants?

LETTER FROM THE EDITOR

INDERJIT BADHWAR

NO MORE TEARS

NE of the saddest hours befell Indian democracy in May 1990. During a stormy and unruly session of the Rajya Sabha when Congress (I), the defeated now-inopposition party led by Rajiv Gandhi, was playing havoc with established norms of parliamentary conduct, the chairman and vice president of India, Shankar Dayal Sharma wept like a child. His body was wracked by uncontrollable heaving and sobbing following insults hurled at him from unruly law makers of the upper house. A former Congressman and a devotee of fair play who took his duties as chairman and vice president with the utmost seriousness, he had been trying desperately to tame the unruly members. Among the abuses hurled at him was the now infamous line from Congress Voice Brigade stalwart KK Tewari: “Dr Sharma’s hysterical rantings have not served the cause of democracy.” The hapless vice president was heard pleading: “Shoot me, but don’t murder democracy…come and throttle me….” This incident reverberated internationally. Indian democracy and the Nehru-Gandhi legacy of propriety and constitutionalism cut a sorry figure across the world. Rajiv Gandhi’s carefully cultivated global image as an Officer and a Gentleman took a beating. The BJP’s leaders, stalwarts like Atal Bihari Vajpayee and LK Advani considered such shameful shenanigans a blot on Indian democracy. In a historical irony, 25 years later, some of this same party’s members and spiritual and political mentors are mounting gratuitous attacks on Vice President Hamid Ansari which appear to be at complete vari-

ance with the image of a tolerant, vigorously democratic, equal opportunity-oriented India that Prime Minister Modi is trying to promote in his Western odysseys designed to attract geopolitical sympathy and investment lucre to India. Hamid Ansari is no pushover. He is no Uncle Tom. He disparages every form of religious extremism. He is a sworn enemy of Muslim bigotry and the idea of a uniform Islamic world. His accomplishments would do any nation—even a “Hindu Rashtra”—proud. In the cause of Bharat Mata he has served in the Indian Foreign Service in Baghdad, Rabat, Jeddah and Brussels. He was chief of protocol to Government of India, high commissioner to Australia, ambassador to Afghanistan and Iran, permanent representative to the UN, and vicechancellor, Aligarh Muslim University. He certainly does not need any more credential recognition. Yet, starting with a falsely leveled accusation from BJP general secretary Ram Madhav that he had deliberately refused to attend PM Modi’s Inter-national Yoga Day, Ansari has become the lightning rod for intolerant vitriol. As one commentator remarked: “In what should have been a celebration of Indian culture on the world stage became (instead) petty politics, and aimed at one of the most prominent Muslim leaders in India.” This could hardly bode well for Modi’s image abroad, the new, post-2002 moderate/modernist development-pushing statesman he has been projecting, especially in light of President Obama’s crass warning, articulated on Indian soil in public, that India should be careful on matters of INDIA LEGAL October 15, 2015

LETTER FROM THE EDITOR

The latest round of Ansaribashing from the far right is because he has advocated “affirmative action” to help Muslims get more education and equal opportunities for socio-economic advancement. PIB

VICTIM OF CAMPAIGN The days following Republic Day celebrations saw a flood of messages on social media that Vice-President Hamid Ansari had not saluted the Indian flag

tolerance of different faiths. Even though Madhav deleted his tweet in the face of facts, it did little to inspire faith at home from opinion shaping commentators: The late, irrepressible Vinod Mehta tweeted on June 22: “…shame in the name of human being. And what else to say about his mentor narendra modi! #IStandWithHamidAnsari.” Said commentator KC Singh: “What worsens the error is that it isn’t a loose cannon from BJP’s Rt flank but Ram Madhav, prima donna linking BJP/RSS.”

Ansari is no pushover. He is no Uncle Tom. He disparages every form of religious extremism. He is a sworn enemy of Muslim bigotry and the idea of a uniform Islamic world. 4

October 15, 2015

Shekhar Gupta: “Short, polite note of apology from Ram Madhav & BJP Pres to VP Hamid Ansari will cut the losses. This needs more than a mere delete.” The Ambedkar Periyar Study Circle tweeted: “Ram Madhav should try not to practice bigotry.”

he stage for these attacks had been set with accusations that Ansari had failed to salute the flag on Republic Day (never mind that he had proudly flown the national tricolor at every embassy and mission abroad as Bharat’s representative). Yet, he is being dogged by terms like “anti-India”, “Jihadi-sympathiser” and “traitor.” This is McCarthyism in its most hideous form. The vice president is an easy, soft, target. He has no platform from which to defend himself. The latest round of Ansari-bashing

from the far right is because he has advocated “affirmative action” to help Muslims get more education and equal opportunities for socioeconomic advancement. In attacking him for advocating this, RSS-BJP ideologues are actually pointing the gun at their own position on this subject. BJP leaders like Advani and RSS ideologues like the late Prof Rajendra Singh have defined appeasement (tushtikaran) as the use by secular parties of Muslims as vote banks to perpetuate their political primacy instead of addressing the real economic and educational problems of minorities. What was Vice President Ansari advocating that was so different from this point of view? In fact, Ansari was merely reiterating with renewed vigor the dust-gathering findings of the government appointed Justice Sachar and

Justice Ranganath Mishra groups whose reports were tabled in 2010. The Government of India constituted Justice Sachar Committee for preparation of a report on the social, economic and educational status of Muslim community of India, and Justice Ranganath Mishra Commission for identifying criteria for socially and economically backward classes among the religious and linguistic minorities, and to suggest various welfare measures for minorities including reservation. Both the Committee and the Commission have submitted their reports. The introduction to the reports reads: “It has been established by Sachar Committee and Ranganath Mishra Commission reports that Muslims in India are most backward community despite their rich cultural heritage and strong numerical presence…. The INDIA LEGAL October 15, 2015

LETTER FROM THE EDITOR

ment sector employment is necessary to enhance participatory governance. The presence of Muslims was found to be only 3% in the IAS, 1.8% in the IFS and 4% in the IPS. Overall, Muslims constituted only 4.9% of candidates who appeared in the written examination of Civil Services in the years 2003 and 2004. Share of Muslims in employment in various departments is abysmally low at all levels.

May 1990, during a stormy and unruly session of the Rajya Sabha, vice president of India, Shankar Dayal Sharma wept like a child, pleading: “Shoot me, but don’t murder democracy….”

Minorities communities will certainly be benefitted at large, when these two reports are implemented in true word and spirit.” Here are excerpts: While there is considerable variation in the conditions of Muslims across states, (and among the Muslims, those who identified themselves as OBCs and others), the Community exhibits deficits and deprivation in practically all dimensions of development. Mechanisms to ensure equity and equality of opportunity to bring about inclusion should be such that diversity is achieved and at the same time the perception of discrimination is eliminated. This is only possible when the importance of Muslims as an intrinsic part of the diverse Indian social mosaic is squarely recognized. The Committee recommends that an Equal Opportunity Commission (EOC) should be constituted by the government to look into the grievances of the deprived groups. An example of such a policy tool is the UK Race Relation Act, 1976. While providing a redressal mechanism for different types of discrimination, this will give a further re-assurance to the minorities that any unfair action against them will invite the vigilance of law. In a pluralistic society, a reasonable representation of various communities in govern-

October 15, 2015

ice President Ansari has not broken into tears as did his more emotional and fragile predecessor SD Sharma. But obliquely, he recently delivered a learned riposte to the growing illiberality and intolerance for dissent or opinions unpalatable to the government that seems to be sweeping across the nation, in the first Ram Manohar Lohia Lecture at ITM University, Gwalior. Excerpts: In 1950 the People of India gave themselves a Constitution that promised to secure to all citizens, inter alia, “liberty of thought, expression, belief, faith and worship.” This was given a concrete shape by the specific rights guaranteed by Articles 19 and 25 and the associated framework ensuring their implementation. The past six-and-a-half decades have witnessed the manner, and the extent, of their actualization. The Constitution was not crafted in a vacuum. It was preceded by the Freedom Movement and the values enunciated in it. These were formally encapsulated in the Objectives Resolution of January 22, 1947. At the same time the Constitution-makers, or some amongst them, were not unaware of the pitfalls. In his speech at the end of the drafting process in the Constituent Assembly, Ambedkar had warned about the impending “life of contradictions.” The quest for correctives often found expression through assertions relating to freedom of expression and its concomitant, the concept of dissent. It is concept that contains within it the democratic right to object, oppose, protest and even resist. Cumulatively it can be defined as the unwillingness in an individual or group to cooperate with an established authority— social, cultural or governmental. In that sense, it is associated with critical thinking since, as Albert Einstein put it, “blind faith in authority

PIB

is the greatest enemy of truth.” Dissent as a right has been recognized by the Supreme Court of India as one aspect of the right of the freedom of speech guaranteed as a Fundamental Right by Article 19(1)(a) of the Constitution. The court has observed that “the restrictions on the freedom of speech must be couched in the narrowest possible terms” and that the proviso of Article 19(2) is justiciable in the sense that the restrictions on it have to be “reasonable” and cannot be arbitrary, excessive or disproportionate. In the globalizing world of today and in most countries having a democratic fabric, the role of civil society in the articulation of dissent has been and continues to be comprehensively discussed; so does the question of its marginalization or suppression. Despite the unambiguously stated position in law, civil society concerns about constraints on the right of dissent in actual practice have been articulated powerfully. “On the surface,” wrote one of our eminent academics some time back, “Indian democracy has a cacophony of voices. But if you scratch the surface, dissent in India labours under an immense maze of threats and interdictions.” Referring to the then new reporting requirements for NGOs, he said: “Nothing is more fatal for disagreements and dissent than the idea that all of it can be

BJP general secretary Ram Madhav (right) claimed that Ansari had deliberately refused to attend PM Modi’s International Yoga Day, causing immense humiliation to the VP. reduced to hidden sub-texts or external agendas.... The idea that anyone who disagrees with my views must be the carrier of someone else’s subversive agenda is, in some ways, deeply anti-democratic. It does away with the possibility of genuinely good faith disagreement. It denies equal respect to citizens because it absolves you of taking their ideas seriously. Once we have impugned the source, we don’t have to pay attention to the contents of the claim...This has serious consequences for dissent.” This was written in 2012. It is a moot point if, given the Pavlovian reflexes of the Leviathan, things would have changed for the better since then. Informed commentaries suggest the contrary. Every citizen of the Republic has the right and the duty to judge. Herein lies the indispensability of dissent. Jai Hind.

editor@indialegalonline.com INDIA LEGAL October 15, 2015

OCTOBER 15, 2015

ISSUE. 03

Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai 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

No U-turns Here

ENVIRONMENT SOCIETY

21st Century Slavery

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd and printed at Amar Ujala Publications Ltd., C-21&22, Sector-59, Noida. All rights reserved. Reproduction or translation in any language in whole or in part without permission is prohibited. Requests for permission should be directed to E N Communications Pvt Ltd . Opinions of writers in the magazine are not necessarily endorsed by E N Communications Pvt Ltd . The Publisher assumes no responsibility for the return of unsolicited material or for material lost or damaged in transit. All correspondence should be addressed to E N Communications Pvt Ltd .

OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400-432 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001.

October 15, 2015

In the upscale houses of civil servants and ministers, the poor are made to slog without remuneration, reveals BIKRAM VOHRA. This belies the notion that slavery is a thing of the past BOOKS

Troubled Times

Circulation Manager RS Tiwari

For advertising & subscription queries editor@indialegalonline.com

A Cop, a Fighter

An Indian-origin officer of the UK Police Force wins a sustained battle against discrimination, including a sexual assault case. SAJEDA MOMIN brings you the story of gutsy Gurpal Virdi

RSS chief Mohan Bhagwat’s call for a review of the reservation policy sparks off a debate on this contentious issue. But will political parties relent when quotas keep their caste-based politics ticking, asks KALYANI SHANKAR

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma

Vice-President (Ad-Sales) Vivek Mittal-09810265619

FOCUS

Das Auto’s Dark Secret

Volkswagen is caught tampering with emission-testing software in the US. This should serve as a wake-up call for India vis-a-vis testing and compliance norms, warns DINESH C SHARMA

India Legal presents excerpts from India – The Crucial Years—a peep into the Indira Gandhi era through the bifocal of former IB chief TV RAJESWAR SUPREME COURT

Unending Fracas The Supreme Court reserves its judgment on the validity of the NJAC. As the imbroglio continues, justice gets delayed due to vacancies in courts, says RAMESH MENON COURTS

Law unto Themselves? A Madras High Court judge initiating contempt proceedings against his own chief justice, coupled with hooliganism by members of the bar, demeans the reputation of the judiciary. VENKATASUBRAMANIAN reports HEALTH

A Vector Called Govt Apathy Dengue menace has been made worse by civic mismanagement and infighting between various levels of governance, writes ARUNA SINGH. Also, VENKATASUBRAMANIAN and AJITH PILLAI describe how private hospitals are shying away from healthcare for all

12 20

STATES

A Flavor of Struggle Women tea workers in Munnar strike work, forcing the Tata management to give them bonus and the state government to amend the Plantation Labor Act. A report by JACOB GEORGE

Eligibility Crisis

A move to introduce educational criteria for panchayat elections in Haryana through a law was stayed by the apex court, on the ground that it would have excluded a sizeable section of the population from contesting, reports VIPIN PUBBY

DIPLOMACY

Playing Big Brother

India should exercise caution while being critical of Nepal’s new constitution, and the sidelining of Madhesis of Indian origin. SEEMA GUHA analyzes the fragile issue

REGULARS

VOLUME. IX

Edit................................................................................3 Quote-Unquote...........................................................10 Ringside......................................................................11 Supreme Court............................................................16 National Briefs.............................................................19 International Briefs.......................................................23 Courts......................................................................... 24 More News.............................................................66, 67 People......................................................................... 82 Cover Design: ANTHONY LAWRENCE Cover Photograph: UNI

INDIA LEGAL October 15, 2015

QUOTE-UNQUOTE

I often say, if there’s a strong wind blowing, some might want to shut the window. Others will want to put up a windmill or launch their sails on the seas. The difference between perception of something as challenge or opportunity is the difference between inertia and initiative; status quo and progress. —Prime Minister Narendra Modi, addressing the Indian diaspora in San Jose, US

Hindu fundamentalists tell me, ‘You are a jihadi. Go away to Pakistan.’ On the other side, Muslim fundamentalists call me a kafir and condemn me, saying I’ll burn in hell. I believe that as long as both of them are abusing me, I must be doing something right. —Javed Akhtar, in The Wire

A Muslim will become the chief minister of Bihar if the Third Front wins two-thirds majority and forms the government.

When a biological father can do this (rape), how bad can it get now? I believe that such news should not be given excessive coverage as it inculcates a feeling of heroism among people who already have a criminal mindset. It gives them a kind of energy and pleasure to try something new and they commit such crimes. —Maharashtra’s Women Child and Development Minister, Pankaja Munde

—Janadhikar Party chief, Pappu Yadav

They say that Rishi Dadhichi made Vajra out of his bone but I think he would have probably done some scientific research to develop a metal which provided that kind of superior technology. So you can classify him into a scientist. ——Defence Minister Mahohar Parrikar

October 15, 2015

When a soldier pledges his life to protect his country, he does it fully without any conditions and this is what we expect from the prime minister also, that the promise he made to us, he should fulfil it completely, without any conditions. —Actor and AAP member Gul Panag, on OROP, in Huffington Post

Aruna

VERDICT “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.” Elie Wiesel

INDIA LEGAL October 15, 2015

SUPREME COURT/ National Judicial Appointments Commission

DECISION AWAITED The Supreme Court is yet to conclude on NJAC

The Imbroglio Continues The apex court reserved its verdict on petitions challenging NJAC’s validity. Justice JS Khehar has circulated his draft verdict among judges of the constitution bench. Two of them want to study the draft of other judges before taking a final call By Ramesh Menon 12

October 15, 2015

BATCH of petitions has challenged the constitutional validity of the controversial National Judicial Appointments Committee (NJAC) and the Supreme Court has reserved its judgment on them. It was feared that the NJAC would give an upper hand to the executive, thereby influencing judicial appointments. The petitions include those by the Supreme Court Advocates-on-Record Association, the Bar Association of India, Center for Public Interest Litigation, an NGO, and others.

“People approach the court against illegal actions of the executive. They may apprehend that a judge in whose appointment the government played an important role may favor the government.” — Former Law Minister Ram Jethmalani When the NJAC matter was finally heard on July 15, the court reserved its judgment, directing that its interim order on the tenure of additional judges of high courts would be extended till pronouncement of the judgment in this case. It was heard by a constitutional bench of Justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel. India Legal has learnt that Justice Khehar has circulated his judgment to the other four judges, saying that the NJAC was unconstitutional. We have also learnt that two of the judges want to see the stand taken by the others before giving their view on the draft judg-

“A transparent collegium would have been more acceptable as it would invite nominations and have a search committee of judges, academics and lawyers to give inputs on the nominee. We need a fundamental change, not cosmetic change.”

“The NJAC law would give the government absolute powers to appoint docile judges who will do things the government wants. If the NJAC becomes a reality, the independence of the judiciary will end, including all social action litigation.”

— Former ASG Indira Jaising

— Senior lawyer Colin Gonsalves

ment. While going to press, the final judgment had not been heard. EAGERLY AWAITED When the verdict comes out, it is likely to spell out if the judiciary will have the primacy to decide on the appointment of judges. It is definitely going to be a landmark case as far as constitutional cases go. While the judgment is eagerly awaited by the government and the legal fraternity, it is not clear whether it will be referred to a larger bench of the Supreme Court. Sources in the prime minister’s office (PMO) said that Union Law Minister DV INDIA LEGAL October 15, 2015

SUPREME COURT/ National Judicial Appointments Commission

Justice Khehar (right) has in a draft judgment called the NJAC unconstitutional. All speculation is now on what the other judges on the constitutional bench would say.

SELECTION ROW (Below) Patna High Court still awaits the appointment of a chief justice as the NJAC impasse continues

Sadananda Gowda had personally visited Chief Justice of India (CJI) HL Dattu two days prior to a meeting at the PMO to select eminent persons for NJAC. At that time, Dattu had agreed to attend the meeting. But on the day of the meeting, the prime minister received a letter from the CJI pointing out that since the matter was pending in the Supreme Court, it would not be appropriate for him to participate in the process. So, what are the options before the government on NJAC? If the Supreme Court rules and declares the NJAC unconstitutional, the government is likely to come out with another bill but will not allow the old collegium system to continue which selected judges of both high courts

and the Supreme Court. Legal experts feel that if the court develops a transparent mechanism for its own accountability, then it may be difficult for the government to propose another bill similar to the NJAC. MANY VACANCIES The apex court may refer this matter to a larger bench. In that case, the situation may be the same as it is today, with no new appointments being possible. As of today, there are more than 392 vacancies for judges in high courts and the Supreme Court, according to the Department of Justice. This has seriously affected litigants and the dispensation of justice as cases are piling up by the thousands each day. As no decision can be taken on appointments, the post of chief justice has not been filled in the Gujarat High Court, Gauhati High Court, Patna High Court, Punjab and Chandigarh High Court, Karnataka High Court, Rajasthan High Court and Bombay High Court. These courts are functioning with an acting chief justice. Who are the losers? Ironically, many of them are children and close relatives of judges and politicians who are waiting for their names to be cleared for appointment as high court judges. It includes 73 relatives of judges and 24 relatives of politicians. The

prominent ones are Somesh Khare, son of former Chief Justice of India, VN Khare, and Neeraj Tripathi, son of Keshrinath Tripathi, governor of West Bengal. There are nine other names that are under consideration to become judges who are close acquaintances of a powerful union minister. Former law minister and noted lawyer Ram Jethmalani while speaking at a seminar on NJAC had called it a fraud on the constitution. He pointed out that a litigant should not be part of a process for appointment of judges and the government is the biggest litigant in the country. “Corrupt politicians always want a corrupt judiciary. We must have an appointment system in which litigants should not have a say. People approach the court against corrupt and illegal actions of the executive and there may be apprehension and suspicion that a judge in whose appointment the government played an important role may favor the government,” he said. Former additional solicitor-general of India Indira Jaising told India Legal that she did not agree with the selection method of the NJAC that has been put in place by the NDA government as it could prevent competent judges or those who have given judgments against the illegal acts of the government from being considered. “The executive just needs a veto to reject a judge and he or she will not be appointed. It is a completely unacceptable method as it can affect the independence of the judiciary. A transparent collegium would have been more acceptable as it would invite nominations and have a search committee of judges, academics and lawyers to give inputs on the nominee. We need a fundamental change, not cosmetic change. We should not let the executive dominate the judiciary,” she said. As many as 64 complaints regarding corruption involving judges are pending with the law ministry. However, the ministry has not forwarded it to the CJI for action. Sources said that it is because there is yet no finality in the NJAC system. Senior lawyer Colin Gonsalves told India Legal: “The NJAC law would give the government absolute powers to appoint docile judges who will do things that the govern-

ment wants. If the NJAC becomes a reality, the independence of the judiciary will end. All social action litigation will also come to an end.” OPPOSITE VIEW However, this is in contrast to the stand taken by the late Justice VR Krishna Iyer who had said that a collegium untrained in the task would select judges in a secret and bizarre fashion, leaving room for nepotism, communalism and favoritism in the absence of guidelines. “Nowhere in the world do we have judges alone selecting other judges,” he had said. After her retirement from the Supreme Court, even Justice Ruma Pal had warned of the collegium system and said that a chance remark, a rumor or even third-hand information may end up damaging a judge’s prospects. Consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for litigants and the credibility of the judicial system, she had said. Clearly, there are divergent views on whether the collegium system is better than the NJAC or not. All eyes are now on how things will shape up after a final call on the matter. IL

Sources in the PMO said Union Law Minister DV Sadananda Gowda (above) had personally visited CJI HL Dattu two days prior to a meeting at the PMO to select eminent persons for NJAC. Dattu later declined to attend the meeting as the matter was pending in the Supreme Court.

Prashant Panjiar

October 15, 2015

INDIA LEGAL October 15, 2015

SUPREME COURT

Rights to Chakmas and Hajongs HE Supreme Court has taken up the cause of rights of Chakmas and Hajong refugees. It has directed the center and the Arunachal Pradesh government to offer them citizenship, setting a deadline of three months. The two ethnic groups had migrated from East Pakistan (now Bangladesh) to India during 1964-69.

The court ruling came on a petition filed by the Committee for Citizenship Rights of the Chakmas. The court ordered that they should be insulated from all kinds of hostility from the local population and the center and Arunachal government should protect their life and liberty as well as put an end to all discrimination towards them.

Film on gays under scanner HE Gujarat government’s decision to nix the screening of Meghdhanyshya —The Colour of Life was virtually upheld by the apex court. It observed that homosexuality depicted in the film may be considered as a social evil by a section of the society. It also ruled that its earlier interim order of staying the Gujarat High Court’s decision of granting tax relief to the film shall stand. The Gujarati movie revolves around the true story of a gay prince from the state. Although Gujarati color movies made after April 1, 1997 are given tax exemptions (except in cer-

tain cases), in this case the state tax commissioner felt the screening of the film may send a wrong signal to the people—as if the state endorses homosexuality. The apex court is likely to take up the matter again after at least three years. And the maker of the film, KR Devmani can’t release it without the tax exemption due to financial constraints. The counsel for Devmani pleaded that the court’s order was violating fundamental principles, but couldn’t convince the court. Incidentally, the film had already been cleared by the Censor Board.

HE Supreme Court declined to lend its weight for declassifying files on Subhash Chandra Bose as pleaded by petitioner Snehashish Mukherjee. Instead, it asked the home ministry and the PMO to reply as soon as possible to the representation made by Mukherjee. The counsel for the petitioner pointed out that the center was evading the issue on the insubstantial ground that the move would spoil its relations with some

October 15, 2015

Can’t instruct MPs

AKING up the issue of rampant entry of criminals in politics, the apex court sought the views of the center and state governments on this issue. It asked both of them to respond on: a) criminals being given political patronage and b) finding out ways to ensure that politicians do not dance to the tune of criminals. The issue came up while the court was dealing with an eight-year-old appeal of the Uttar Pradesh government. The state government had taken objection to the Allahabad High Court ruling for setting up a committee of wellknown people to delve into criminalization of politics and come up with solutions to check the menace. The high court had even listed out areas that needed to be looked into by the committee. The apex court gave responsibility to senior advocate Sidharth Luthra to find out whether the areas pointed out by the high court had been dealt with, or it had left out any. It was informed that most of the issues raised by the high court had been dealt with by the apex court, barring a few.

HE apex court declined to issue any advice or directions to MPs in parliament on how they should conduct themselves so that there is no loss of time and public money. It observed that the judiciary had its limitations and doing so would tantamount to crossing the limits and it couldn’t keep a tab on how lawmakers behaved in the house. The court was hearing a PIL from an NGO named Foundation for Restoration of National Values. The NGO pointed out that parliament over the years hadn’t functioned properly, causing huge loss of legislation time and wastage of public money. It wanted the apex court to step in and set guidelines for MPs in order to maintain the credibility of parliament. The court felt that it was the prerogative of the government and the speaker to ensure that parliament functioned smoothly, and they would know better. It noted that MPs were endowed with enough wisdom to manage their own affairs and are responsible enough. After all, they are elected by the people, the apex court observed.

A case for migrant workers HE apex court lashed out at the Odisha and Andhra Pradesh governments for the inhuman treatment meted out to workers. It was reacting to an incident in which the right hands of two laborers from Odisha were chopped off by a contractor from Andhra Pradesh in 2013. The court warned both the governments that it will not spare them if they did not act strongly on the matter, and observed that either enough was not being done to prevent exploitation or steps taken were ineffective. It asked the state governments to get back within four weeks with affidavits mentioning the short and long

Declassifying files on Netaji T

Politics and criminals

nations and that it should not impose restraints on the right to know, unless mandated by the constitution. The court was, however, reluctant to take up Mukherjee’s plea that the center reveal the secret information in files at its disposal, other than the 64 already declassified by the West Bengal government. It observed that it could not issue instructions to the center to declassify the files.

term measures undertaken to ensure that migrant workers are not treated like dirt and are safe while working in brick kilns. The two states had been earlier put on notice by the apex court because of the occurrence of such gruesome incidents. The court also wanted to know whether any complaints had been filed against those flouting laws on migrant laborers. It also assigned secretary, State Legal Services Authority, to do a field survey of areas where large-scale migration takes place and come back with solutions to prevent labor any kind of exploitation. INDIA LEGAL October 15, 2015

SUPREME COURT

NATIONAL BRIEFS

Gayatri Devi’s will upheld HE battle for succession in the Jaipur royal family was decided by the Supreme Court in favor of the grandchildren of the biological son of the late Rajmata Gayatri Devi. The apex court ruled that Rajkumar Devraj and Rajkumari Lalitya, the grandchildren of the Rajmata, had the sole ownership rights over the shares of Jai Mahal Hotels Pvt Ltd (one of the palaces of the royal family converted into a hotel). Their father, the late Maharaj Jagat Singh, had transferred his shares in the hotel in Rajmata’s name, and which she later bequeathed to her grandchildren in her will. However, when the grandchildren approached the Company Law Board (CLB) for getting the shares trans-

ferred, Rajmata’s stepchildren challenged her will, disputing its execution. They demanded a pie in the shares. The apex court observed that the transfer of shares from Singh to his mother and later the succession documents from Rajmata to her grandchildren—both were undisputable and unquestionable. The court agreed that Rajmata had intimated the CLB about her transfer deed. The verdict will also pave the way for Devraj and Lalitya to claim ownership of other assets of their father. Singh had also bequeathed his shares in other hotels to his mother. Earlier, the Delhi High Court had in 2012 ruled in favor of Devraj and Lalitya on the matter.

Actors in legal mess

OSMETIC company Indulekha and its brand ambassador, Malayam star Mammootty, have been sued by a consumer. In a case filed in a consumer court in Wayanad, Kerala, complainant Chaathu claimed that Indulekha White Soap was not as effective as its advertisement claimed. In the ad, Mammootty says: “To enhance beauty, use Indulekha and beauty will come to your doorsteps.” Chaathu has demanded ` 50,000 as compensation. In a another incident, an FIR has been

Bombay HC stays sedition circular

Nothing wrong in Ansals’ verdict HE Supreme Court supported its verdict delivered last month, allowing Gopal Ansal and Sushil Ansal in the Uphaar fire case to walk free from jail only if they paid a fine of `30 crore each within three months. Both the brothers, who own the cinema hall, were pronounced guilty by the apex court for criminal negligence that led to the death of 59 people in June 1997. They were awarded jail term for two years. The court observed that there was no point in sending Sushil to jail as he was too old to endure a tough jail term and clarified that Gopal was granted relief on grounds of parity and keeping in view the peculiar circumstances of the case, provided he also paid `30 crore. Sushil is 75 years old while Gopal is 67. The court, however, cited no other reason except the age factor. At the time the verdict was delivered in August, Sushil had already served more than five months in jail while Gopal had undergone imprisonment for over four months. That the nature of the offense warranted a higher

October 15, 2015

sentence did attract its attention, but it was bound by the options available under the law prescribing the sentence, the apex court observed. Section 304A slapped on the brothers mandates a maximum imprisonment of two years.

Somnath Bharti finally surrenders

AP MLA and former Delhi law minister Somnath Bharti became the target of a manhunt by the Delhi police, following his escape from judicial interrogation, minutes after the Delhi High Court dis-

Response sought over Pachauri case

— Compiled by Prabir Biswas Illustrations: UdayShankar

registered against Bollywood actors Farhan Akhtar and Ranbir Kapoor, for promoting an online shopping site which is allegedly “duping” customers. The FIR has been registered by lawyer Rajat Bansal, a resident of Lucknow against Farhan and Ranbir under IPC sections 406 (Punishment for criminal breach of trust) and 420 (Forgery). Along with them, directors of

DIVISION bench of the Bombay High Court comprising Justices VM Kanade and Shalini Phan-salkar-Joshi, stayed the Maharashtra government’s controversial August 27 circular on sedition. The circular stated that criticism of a politician or a public servant, in the form of words, signs or representations, could attract sedition charges

missed Bharti’s anticipatory bail plea. Bharti faces charges of domestic violence and attempted murder, levelled by his wife Lipika Mitra. Bharti’s assistant and another person were detained by the police for questioning but were later released. Two special police teams carried out raids at his office and residence in Malviya Nagar, but the law-

HE Delhi High Court issued a notice to the government, The Energy and Resources Institute (TERI) and Dr RK Pachauri, seeking their replies to a TERI employee alleging that the organization had not acted against its chief Pachauri, accused in her sexual harassment complaint. In May, an internal com-

online portal askmebazaar.com are also been named in the FIR. Bansal, in his FIR alleged that he had ordered a 40-inch LED TV from the site on August 23 and had paid `29,999 for the same through his debit card, but he did not get the product within 10 days, as promised.

under Section 124A of the IPC. The bench was responding to petitions filed by cartoonist Aseem Trivedi and advocate Narendra Sharma. The petitions challenged the circular on the grounds that it violated the constitutional rights of people and was likely to be misused in the absence of any adequate training to the police.

maker eluded custody. He finally surrendered after the Supreme Court gave him a deadline.

Rajasthan quota exceeds 50%

HE Rajasthan legislative assembly passed two bills granting five percent reservation to Gujjar-led special backward classes (SBC) and 14 percent to economically backward classes (EBC), taking the total allotted quota in the state to over 68 percent. This is well over the 50 percent ceiling set by the Supreme Court in the 2007 IR Coelho vs State of Tamil Nadu case, where the court ruled that laws threatening to violate the basic structure of the constitution would be open to judicial review. The Rajasthan government’s efforts at raising quotas through a single Act in 2008 had been stayed by the High Court, which had observed that “more than 50 per cent reservation without any valid justification is unconstitutional”.

plaints committee (ICC) report was stayed by an industrial tribunal on Pachauri’s plea. In her petition, the victim challenged the stay order as well as the jurisdiction of the industrial tribunal to deal with appeals against the ICC report. The respondents have to reply by November 16. INDIA LEGAL October 15, 2015

COURTS/ Madras High Court Controversy

Undermining the Law A Madras High Court judge initiating contempt proceedings against his own chief justice and members of the bar indulging in acts of hooliganism does not augur well for the judiciary By Venkatasubramanian

DEFYING AUTHORITY? (Above) Justice CS Karnan of the Madras High Court

October 15, 2015

HEN the practice of and non-compliance with the law conflict with each other, the result is a deadly mix, threatening the credibility of the profession itself in the eyes of the public at large. The happenings in the Madras High Court, which are now before the Supreme Court, are illustrative of the larger malaise plaguing the legal profession across the country. First is the case of Justice CS Karnan, who belongs to the scheduled caste. He alleges discrimination at the hands of the high court chief justice, Justice Sanjay Kishan Kaul, and has used the process of the court to initiate suo motu contempt proceedings against the chief justice on the selection of judicial officers. Justice Karnan’s allegation that Justice Kaul’s constitution of the selection committee to select judicial officers was irregular, unfair and biased may have some basis, but his initiation of the contempt proceedings against his own chief justice, smacked of gross abuse of the process of law, to settle personal scores. On May 17, the Supreme Court stayed the

JS Studio

contempt proceedings against Justice Kaul and restrained Justice Karnan from any interference in the selection process. On September 21, when the matter came up before the Chief Justice of India, HL Dattu, he considered the report submitted by the counsel for the registrar general of the Madras High Court, KK Venugopal, and expressed serious misgivings about current happenings in the high court. Despite Venugopal’s suggestion that the Supreme Court could send a team of three judges to visit the high court to report on the happenings, Justice Dattu held that Justice Kaul must be given more time to handle the issue administratively. Meanwhile, Justice Karnan has written to the president, the prime minister and the union law minister, with copies to two Dalit politicians—Ramvilas Paswan and Mayawati. Copies have also been sent to the Tamil Nadu governor, the state chief minister and the chairpersons of the national commissions for Scheduled Castes and Scheduled Tribes. In his letter, Justice Karnan has further alleged that Justice Kaul is not assigning him “appropriate” category of cases for adju-

dication, and is excluding him from the membership of important judges’ committees in the high court. He has further alleged that Justice Kaul is guilty of violating the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by committing an atrocity, in terms of the provisions of the Act. He accused Justice Kaul of denying him the financial assistance of `5 lakh which he sought from the high court to fight the case in the Supreme Court.

ven as the Supreme Court adjourned Justice Karnan’s case to October 26, Justice Dattu could not avoid references to the re-cent happenings in the high court, which seemed to have far more potential to damage the credibility of the judiciary than Justice Karnan’s ego clashes with his chief justice. “The Madras High Court judges preside in courts with fear psychosis expecting mobs to come in and attack them at anytime. It was once a traditional court that we all looked up to. Never before has it fallen to such low levels,” Justice Dattu observed, expressing his disappointment with the silence of the Tamil

Nadu Bar Council and the Bar associations on the matter. What provoked Justice Dattu were the series of unconnected events, which brought down the image of the Madras High Court. First, advocates from both Chennai and Madurai, along with their spouses and children, held placards in court halls when the courts were in session, demanding that Tamil be made the official court language in the high court. According to a report, they barged into the chambers of the judges, disrupting the suo motu contempt proceed-

COMPLEX SITUATION? (Clockwise from top left) Chief Justice of India, HL Dattu; Justice Sanjay Kishan Kaul, chief justice of the Madras High Court; Registrar General, Madras High Court, KK Venugopal

INDIA LEGAL October 15, 2015

COURTS/ Madras High Court Controversy

INTERNATIONAL BRIEFS

Court. The BCI has directed the Bar Council of Tamil Nadu to hold disciplinary proceedings against the 15 errant lawyers and has warned that if proceedings were not concluded within a month, the matter would automatically stand transferred to the BCI.

Photos:UNI

SEEKING SUPPORT Justice Karnan wrote letters to Mayawati (left) and Ram Vilas Paswan (right), citing his grievances; BCI chairman Manan Kumar Mishra

Chief Justice of India HL Dattu referred to recent Madras High Court happenings. He said they seemed to have the potential to damage the credibility of the judiciary in the eyes of the people. 22

October 15, 2015

ings being heard against two advocates of the Madurai Bench. Chief Justice Kaul had to call the Central Industrial Security Force to protect himself and his brother judges from possible violence from the agitating lawyers. The two advocates from the Madurai District Court Advocates Association invited contempt proceedings of the high court for making inflammatory speeches in protest against the court’s order directing the state government to strictly enforce the wearing of helmets by two-wheeler riders. Instead of subjecting themselves to the contempt proceedings and answer the allegations against them, the supporters of the two lawyers indulged in hooliganism, and issued boycott threats. Justice Dattu’s expression of anguish had its echo on September 22, with the Bar Council of India (BCI) suspending 15 lawyers in Tamil Nadu, after the BCI received their names from the Bar Council of Tamil Nadu and the registrar general of the Madras High

n his letter to the Tamil Nadu Bar Council, the BCI chairman, Manan Kumar Mishra has lamented the fall in standards of the profession. In his order suspending the unruly advocates, Mishra has revealed that the chairman of the Bar Council of Tamil Nadu has expressed his inability to take any action against the errant lawyers, particularly the leaders of the unruly advocates because of their muscle power, bad antecedents and criminal history. “Not only the chairman but even the majority of the members of the Bar Council of Tamil Nadu are fearful and in panic because of the stronghold of these lawyers, claiming themselves to be the leader of the Bar,” Mishra wrote. Mishra added that the number of nonpracticing advocates and the number of persons with fake and forged certificates (posing themselves to be lawyers) is increasing by the day. Such advocates in various courts of the country have ample and sufficient time to encourage strikes and disturbance, as they neither have any work nor any responsibility, he noted. According to the information which he had, the police had to form a human chain in two rows to safely escort the Judges after the adjournment of the contempt case against one of the lawyers. Mishra also justified the decision not to hear the 15 advocates before suspending them, in view of the serious nature of the professional misconduct indulged by them. He has also urged the holding of disciplinary proceedings against these advocates in some neighbouring state by the disciplinary committee of that Sate Bar Council. The BCI’s action—especially its decision not to follow the principle of natural justice by hearing the advocates, before suspending them—appears debatable. But the decision seems to be desperate, with even the State Bar Council throwing up its hands, in view of the threats from the unruly lawyers. IL

Brazil bans corporate donations T HE Federal Supreme Court of Brazil has banned corporate entities from providing funding to political candidates in the future, reports The Guardian. The court found that the large role corporates played in the campaign funding compromised the legitimacy of the elections. Justices voted 8-3 in favor of the ban, proposed by the Order of

Brazilian Attorneys (national bar association). Rosa Weber, one of the judges who ruled in favor of the ban, argued that undue economic influence compromised the legitimacy of the country’s elections. Politicians running for office in the future will be able to receive money only from a pool of public electoral funds and from individuals.

Bangladesh ex-PM to face trial

A $12 billion claim against Russia

ANGLADESH’S High Court ordered ex-Prime Minister Khaleda Zia to face trial on charges of embezzling money in two corruption cases between 2001 and 2006. During her tenure as PM, Zia awarded a contract for the operation of Barapukuria coalmine to a Chinese company, thereby allegedly causing loss of over $20million to the exchequer. According to The Daily Star, the HC gave the verdict after rejecting a writ petition filed by the BNP chief in 2008 challenging the legality of trial. Along with Zia, 15 others are also accused in the case. Zia is looking for legal remedies, including moving the Supreme Court against the HC ruling. Earlier, in March 2014, the former PM and other members of the BNP were indicted for embezzling funds from a charitable trust named after Zia’s deceased husband.

ORMER Russian tycoon Ser-gei Pugachev has filed a $12 billion lawsuit against Russia, seeking compensation for seizing his assets after he fell out of favor with President Vladimir Putin. Pugachev, once dubbed “Putin’s banker”, told mediapersons that Putin’s allies had pursued him in the courts across Europe with false allegations of embezzlement, adding that he feared for his life. “They expropriated my assets,” said Pugachev, 52, in an interview in Paris. Pugachev’s lawyers said

he had just $70 million left. Pugachev hopes to have his case heard at the Permanent Court of Arbitration in The Hague.

Pakistan delays hanging paraplegic man

HE planned hanging of paraplegic prisoner Abdul Basit, convicted of murder in Pakistan, has been delayed. A magistrate ruled that Basit could not be hanged as he was

confined to a wheelchair. Pakistan’s prison guidelines require that a person sentenced to death stand on the gallows. Basit, 43, has been paralyzed from waist down after contracting an illness in prison. Rights groups say that hanging Basit would constitute cruelty and a degrading treatment. Pakistan has hanged 239 people, most of them terrorists, since reintroducing the death penalty in December 2014. This followed a deadly Taliban attack on a Peshawar school that left over 150 people dead, most of them students.

Japan to deploy troops abroad

HE House of Councillors, Japan’s upper house of parliament, approved a measure that allows the country’s Self Defense Forces to deploy troops abroad for the first time since World War II, according to The Japan Times. The law marks a departure from Japan’s postwar pacifism, in the face of growing military power of China and nuclear armed North Korea. The legislation was passed by the lower house in July and, backed by Prime Minister Shinzo Abe's ruling coalition. Critics are upset that the law contradicts pacifist provisions in the constitution of Japan, specifically Article 9, which states: "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes."

INDIA LEGAL October 15, 2015

COURTS

Nothing wrong with the food act HE Bombay High Court upheld several provisions of the Food Safety and Standards Act, which were challenged in petitions filed by merchants, traders and hoteliers from Mumbai. The petitioners claimed that many provisions were arbitrary and violated the Right to Equality. While dismissing the petitions, the court ruled that such provisions actually served the cause of public health by ensuring purity in food products. It also observed that food producers compromising on quality should be dealt with an iron hand and that was what the act aimed at. It categorically stated that the act was in the interests of the citizens of India.

Revamp mortuaries in Delhi AKING a grim view of the state of mortuaries in Delhi, the Delhi High Court ordered the state government and the municipal corporations to drastically improve the ways in which dead bodies are kept there—within a set deadline. The court was reacting to a report it received from an amicus appointed on the matter. The report showed that mortuaries were in a “terrible” condition, with dead bodies lying un-

Sharma finally released on parole ONVICTED and sentenced to a life term in the Tandoor murder case, Sushil Sharma was finally released on unconditional parole on September 18 by the Delhi government and the Tihar administration on the orders of the Delhi High Court. He was found guilty of murdering his wife Naina Sahni in 1995 and trying to dispose off her body in a tandoor. The court, however, pulled up the Delhi government for not releasing Sharma on September 15 itself, despite the court’s orders. The court

Illustrations: UdayShankar

Gujarat High Court & Hardik Patel HE seven-day internet mobile ban by the Gujarat government in late August, in the wake of the arrest of Patel leader Hardik Patel received unstinted support from the state high court. Gujarat was rocked by widespread violence after Patel, leading the reservation stir for the patel community, was taken into custody. The Gujarat high court was hearing a PIL that contended that the ban took away the fundamental rights of the people. The petition also raised objection to the imposition of Section 144 CrPC by the Ahmedabad police chief, alleging that it was illegal and irrational. There was no need to completely ban internet services, and at the most, the government could have denied access to certain website, the petitioners felt. The high court ruled that the ban was the need of the hour to control the worsening law and order situation in Gujarat. Meanwhile, in another development involving Patel, the high court met at an unearthly hour (1.20 am) on September 23 and issued a notice to the state government to trace Patel, who had gone missing. It also verbally asked the Gujarat Police to find out the Patidar Anamat Andolan Samiti (PAAS) leader.

October 15, 2015

claimed for a long time, and eventually decaying. Delhi police, the report stated, was taking too much time to complete the procedure involved in disposing off the dead bodies. This was true even in cases where the cause of death was known, or due to natural causes. The report also drew the court’s attention to the awful manner in which the viscera samples were being stored.

had on September 15 considered that Sharma had spent more than 20 years in jail and ruled that the former youth Congress leader be released on unconditional parole till the Delhi government decided whether to end his prison term or not. Sharma had pleaded for remission claiming he had already spent more than 20 years in jail, whereas the state government could release a prisoner who had spent 14 years. He wanted the court to ask the LG and Delhi government to act fast on his plea.

A reprieve for Greenpeace N a welcome development for Greenpeace India, the Madras High Court, in its interim order, put on hold the government’s order cancelling its license under the Foreign Contribution Regulations Act (FCRA) 2010. The center was given eight weeks time to respond. The court took the decision after hearing the plea of the executive director of the NGO, who complained that the home ministry was using FCRA to get back at it as it was not successful in getting even

I The state government was asked to come back with a response on September 24. The court was acting on a habeas corpus plea from two PAAS members. They told the court that Patel could not be found and may have been taken into custody by the state police after he held a rally in the Aravali district of the state, defying prohibitory orders. The police on the other hand held that Patel had evaded arrest after it tried to nab him. At the time of going to press, Patel had re-appeared in the Surendranagar district of Gujarat.

with the organization. Greenpeace India had been embroiled in several court cases in India against the center and received the judiciary’s approval (in one such case) to use its domestic funds after the center sought to block all its monetary sources. Although the center had accused Greenpeace India of FCRA violations in the court, citing specific instances, the NGO said it had not received any document from the center on the matter. INDIA LEGAL October 15, 2015

NO HOLDS BARRED

COURTS

Nasreen appeal baseless FTER the Supreme Court declined to entertain an appeal from an NGO demanding the cancellation of Taslima Nasreenâ&#x20AC;&#x2122;s visa for staying in India, the Delhi High Court rejected the appeal. The court observed that the plea served no public interest. The PIL also wanted Nasreen to be sent back to Bangladesh. The center had recently extended Nasreenâ&#x20AC;&#x2122;s visa by a year in August. The PIL filed by All India Human Rights and Social Justice Front pointed out that she did

Honor the national flag OISTING the national flag and singing the national anthem on Independence Day and the Republic Day is the solemn duty of all citizens of India, ruled the Allahabad High Court. It was responding to a PIL filed before it. The PIL wanted the court to use its powers under the â&#x20AC;&#x153;writ of mandamusâ&#x20AC;? and instruct the Uttar Pradesh government to make sure that all madrasas in the state conduct the national flag hoisting ceremony on the two days. The secretaries of all departments in the state government have to ensure that the same is done at all institutions controlled or aided by the UP government, the court ruled. The fundamental duties enshrined in the constitution mandates such a duty, the court observed.

October 15, 2015

not follow the Foreigners Order of 1948 and the Foreigners Act of 1946 when she wrote the script for a film, Nirbhashito (said to be based on her life) shown at the Delhi International Film festival in 2014. The PIL alleged that Nasreen did so without getting a go-ahead from the government. It also accused her of scripting a television serial without governmentâ&#x20AC;&#x2122;s approval which couldnâ&#x20AC;&#x2122;t anyway be put on air in West Bengal in 2013 due to strong protests.

EFERRING to a TOI report that pollution levels had fallen drastically on September 23 in Gurgaon, the day the city observed a car-free day, the National Green Tribunal (NGT) asked the Haryana government to submit pollution figures for that day. The national daily had reported that 10,000 cars were off Gurgaonâ&#x20AC;&#x2122;s roads, and as a result, the 2.5 particulate matter (PM) levels had tumbled by 21 percent on the day. The court wanted to know whether the

Whatâ&#x20AC;&#x2122;s the polit

20 WEEKS: ABORTION AFTER Is it ethical?

DEATH BY HANGING: Is it painful? 38

lonline.com

CANVAS FINGERPRINTING: LEGALIZED BETTING: New tracking tool 43 Is it at hand? 46

PATEL AGIT

www.indialegalonline.com

www.indialega

N: Nightmare forATIO Modi

`100

September 30, 2015

`100

August 31,

SURVEY

: Startling revel s about what Mus women think ofation lim Personal Law

2015

September 15, 2015

www.indialega

lonline.com

`100

STORIES THAT COUNT

IN DE PE ND EN

IA L CE DA Y SP EC

FREEDOepMit?

Can weinake ries including

WHO KILLED FTIL?

OROP VOHRA: BIKRAM VOHRA

Why the vets came marching in

The inside acc how a series ofount of and bureaucraticlegal maneuvers led the arrest of to stock exchang e czar Jignesh Sha and destroyed h â&#x20AC;&#x153;Make in Indiaâ&#x20AC;?a true financial enterpris e 22

INDERJIT BADHWAR:

The dangers ahead 22

Legal lum Dattu and Law Chief Justice HLananda Gowda Minister Sad out 20 speak HL Dattu

Sadananda

Gowda

aj HR Bhardwe; on injustic kh Pravin Pare on law and common sense 24

Who Politics: parliament? 34 h Delhi Hig paralyzed Court Bar vs Association district bars: association Why the 18 barricades?

RAMESH MENON: Do the courts ever say sorry? 12

AJITH PILLAI: Big legal bang for

Moneylife 34

DINESH SHARMA: Make NDPS Act more effective 54

THE GRE AT FALL OF CHINA What doe s mean for it India? 62

SEX VIDEOS Legal loophole s 50

POLITICAL PARTIES Hypocrisy on RTI 14

EDITORIAL Judiciary wields a big stick to improve governm ent schools 03

Donâ&#x20AC;&#x2122;t miss a single issue of this independent, scintillating new fortnightly magazine and get special discounts for yourself and your friends For advertising & subscription queries editor@indialegalonline.com

Show us pollution figures

NDIA L EGAL E INDIAL EGAL EGAL IN A I D L N I : TEESTAâ&#x20AC;&#x2122;S BAILical significance?

facts mentioned in the report were authentic, and, if so, on what basis they were arrived atâ&#x20AC;&#x201D;the parameters used for measuring pollution levels. It also wanted to ascertain whether reducing the number of cars on roads had a salutary effect due to lesser pollution. The query attains significance as the center has contended in front of NGT that old private vehicles actually add negligible amount to the PM levels in Delhi-NCR after the green tribunal had banned 10-year-old diesel vehicles in the region in April this year. A study was also presented in the NGT which claimed that the actual number of cars plying on city roads was far below the number registered with the transport department. The NGT later stayed the ban. As of now, a final order on reducing pollution levels in Delhi-NCR is awaited from the NGT.

SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS HTb 8 f^d[S [XZT c^ bdQbRaXQT c^ 8=380 ;460; \PVPiX]T U^a cWT ^UUTa X]SXRPcTS QT[^f Tick one

Term (Years)

No. of Issues

Cover Price (`)

You pay (`)

You save (`)

% Saving

1 Year

24 Issues

2,400/-

1,200/-

50%

2 Years

48 Issues

4,800/-

1,920/-

2,880/-

60%

=P\T) 0VT) BTg) 0SSaTbb) 2Xch) BcPcT) ?X]) ?W^]T ATb ) >UUXRT) T \PX[) 4]R[^bTS 33 2WT`dT =^ ) 3PcTS) 3aPf]) Uâ `) 2PaS =^ ) BXV]PcdaT) 5â ^dcbcPcX^] RWT`dT _[TPbT PSS ` $ 33 2WT`dT c^ QT SaPf] X] UPe^da Û 4= 2^\\d]XRPcX^]b ?ec ;cS C^ QT bT]c c^) 4= 2^\\d]XRPcX^]b ?ec ;cS 0 ( BTRcâ %' 6PdcP\ 1dSSW =PVPa =>830 D ? ! " ( CTa\b R^]SXcX^]b P__[h ?[TPbT _aêXST db # fTTZb c^ bcPac h^da bdQbRaX_cX^]

LEAD/ Reservations

To Quota or Not to Quota…

RSS chief Mohan Bhagwat’s recent call for a review of the national reservation policy has brought the focus back on what has long been a contentious issue. But will political parties agree to refine, re-design or even re-think on a formula which has successfully kept their caste-based politics ticking? By Kalyani Shankar

HE debate on reservation or quota for various caste categories as well as denominations got a new lease after RSS chief Mohan Bhagwat recently pitched for a review of the seven-decade-old reservation policy, contending it has been used for political ends. He has also suggested setting up of an apolitical committee to determine who all needs the facility and for how long. The sensitive issue has triggered off a controversy as expected—there are more vocal backers of reservation than those for quota abolition. Sharp reaction from the Mandalites led by the RJD chief Lalu Prasad Yadav and the quick words of explanation from the BJP

STATING THE OBVIOUS? RSS chief Mohan Bhagwat’s remarks on reservations is not baseless

October 15, 2015

distancing itself from the RSS chief ’s suggestion shows that politics supercedes everything else. Even the NDA allies like the Rashtriya Lok Samata Party have come up with a sharp response. So why did Bhagwat say what he did? While the Mandalites may oppose his views on the quota system, there is certainly some merit in the RSS chief ’s thesis. There is truth in his assertion that the quota system has been politicised and it is not being implemented in the spirit with which it was introduced. Bhagwat got support from an unexpected quarter as the young Congress leader and former Union minister Jitin Prasad, who is a Brahmin, has also asked his party to look into whether there should be a rethink and a

new mechanism be considered to do justice to the downtrodden. It is clear that at least in the case of admissions to educational institutions quotas have been cornered by some influential OBC castes while others have been left out. The irony is that even influential communities like the Kerala Brahmins are now demanding quota. Gujjars had agitated for it in the past. The current Hardik Patel agitation in Gujarat has added to the fire as the Patidars want reservation for all or for none. BJP’S DILEMMA The BJP is in a dilemma. While it cannot openly ask for abolition of quota system it is doing so in a clever way. For instance, the 2014 BJP manifesto had been silent on the issue of reservation while the Congress and other political parties spelt out detailed policy measures, including reservation for SCs and STs in the

Influential communities like the Kerala Brahmins are now asking for quota. Gujjars had agitated for it in the past. The current Hardik Patel agitation in Gujarat has added to the fire as the Patidars want reservation for all or for none.

NEW PITFALLS Patidar Anamat Andolan Samiti convener Hardik Patel’s agitation has lent a new twist to the fight for quota system INDIA LEGAL October 15, 2015

LEAD/ Reservations

castes and sub-castes assert stronger caste identity consciousness and up demands. Even 69 years after Independence, the debate continues whether there is need for the quota system, and if so what should be the criteria and who should get it. Since it was more politics than social justice that triggered the introduction of reservation, there is a demand now that it is time to end quotas based on caste. Even BR Ambedkar, himself a Dalit, called for the annihilation of caste. According to some observers, the seven decade quota experiment was long enough to prove the efficacy of the system or lack of it. It came into being in 1950 when those who framed the constitution made a special provision for the Scheduled Castes and Scheduled Tribes in jobs and admissions to colleges, and that too for ten years, with possible extensions if need be.

STOKING QUOTAS (Above and right) The Mandal agitation of 1989 led to political churning and the birth of identity politics

While the BJP can’t openly ask for the abolition of the quota system, it is doing so obliquely. 30

October 15, 2015

private sector. The BJP had not even stuck to the promise in its 2009 manifesto to introduce reservation for the economically weaker class in 2014. However, reservation system is the winning mantra for Indian politicians and their vote bank politics. No party wants to annoy any caste group, howsoever small. After the BSP chief Mayawati’s success with her social engineering in the 2007 assembly polls in Uttar Pradesh, most other parties follow her formula. Ironically, while politics is helping it, as different castes bond with each other to aggregate votes, social engineering also leads

MANDAL POLITICS Look at the way how new quotas based on gender and castes have been added over the time. The then prime minister VP Singh dusted the Mandal Commission report from the cupboard and implemented some of its recommendations in 1990 which included quotas for the “Other Backward Classes”, comprising some 27 percent of the population. Interestingly, the Supreme Court, addressing the OBCs in particular, defined the concept of a “creamy layer” of the wealthiest and most privileged among the OBCs, saying they must now be excluded from quotas. The Mandal agitation of 1989 showed that the quota for the Backward Classes further divided society. This resulted in a violent agitation by the student community and the then prime minister VP Singh lost his job despite having implemented the Mandal Commission report. However, it resulted in the political churning and Mandal politics created leaders like the RJD chief Lalu Prasad Yadav, Samajwadi Party chief Mulayam Singh Yadav and many other Backward Class leaders who emerged successful on the basis of their castes. And they even captured power in their respective states. The identity politics also brought leaders like Kanshi Ram and Mayawati of the BSP to the forefront, result-

ing in the growth of identity and caste-based politics. Elections to parliament and state assemblies ever since begin and end with caste calculations. Then there is a gender-based quota for women with 33 per cent of seats in local bodies reserved for them, after a 1993 constitutional amendment. Surprisingly, this has worked well and more than a lakh of women have become village sarpanches and are gradually asserting their rights. Had the bill supported by Sonia Gandhi been passed in the Lok Sabha, it would have provided similar reservation in parliament too. Although it was passed in the Rajya Sabha on March 9, 2010, political parties while giving lip sympathy to the women’s cause sabotaged it. Now the bill is almost buried. In the field of education, quotas and special scholarships for backward groups were first established in the 1920s. For secondary schooling, state funds were allocated to help encourage more Dalit and tribal children to come to schools. Reservation in colleges and university led to lowering the entry marks required by Dalits and other backward applicants to help them opt for higher education. This was similarly introduced in the selection process in the administrative services. ARGUMENTS FOR & AGAINST There have been many arguments in favor and against reservations. It is not anybody’s case that the quota system has completely failed. Quotas under various heads have partly achieved their basic goals. Official statistics reveal that in public jobs members of backward groups claim more posts than earlier. Dalits who had just 1.6 percent of the Group A civil servant positions in 1965, rose to 11.5 percent by 2011, and the share is higher for more junior posts. The pro-reservation interests want continuation of the quota system. Some states like Tamil Nadu have even gone beyond 50 percent reservation. Kaka Kalelkar, the chairman of the first Backward Classes Commission had cautioned that reservation on the basis of caste would not be in the interest of society or the country. The shrillest voice opposing it comes from the upper castes who seek reservation

Since it was more politics than social justice that triggered reservation, there is a demand now for ending quotas based on caste. Even Ambedkar called for abolition of caste. for the economically weak. Either do away with all reservation or give it to everyone, they demand. Some others argue that quota is only demarcating society further. The third contention is that it is being used for the uplift of one section of the society at the cost of the other. The fourth is that the intention of the authors of the constitution has not been achieved in the past seven decades as benefits have not percolated down to the deprived and needy as they are cornered by a few. Even among the Scheduled Castes and Scheduled Tribes, the few who have entered the IAS and other services have not done much to pull up their deprived brothers and sisters. Fifthly, the quota provision has been criticized for discouraging a merit-based system and it has ended up creating another privileged section. Finally, there is also the argument of reverse discrimination. Therefore, some may say the time has come to review and assess whether the

CASTE BENEFIT Mandal politics has created leaders like the RJD chief Lalu Yadav

INDIA LEGAL October 15, 2015

VIEWS ON NEWS

LEAD/ Reservations

THE CRITICAL EYE

CAUTIOUS APPROACH BR Ambedkar (L) and Kaka Kalelkar, the chairman of the first Backward Classes Commission

There is a view that quotas be abandoned and replaced with a time-bound affirmative action program. To give Dalits or OBCs or even Muslims the opportunities that they are justly entitled to, alternative programs should be created.

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

October 15, 2015

S W E N N O VIEWS GUJARANT 53HA THE SU

S THE POLIT48IC OF MEAT

RVESTS

www.view

sonnews

online.co

AL EYE

ITIC THE CR

quota system has worked well or not and rationalize it further. Moreover, if the quota is to be determined on the basis of population of the Backward Communities then clearly the extent of the quotas to be given has to be determined from time to time. After all, there are varying degrees of poverty and prosperity amongst them. Is the Indian political class willing to take a re-look at the quota system, refine and redesign it while keeping social justice at the core? Not so long as it looks at quotas as a tool to play vote bank politics. AFFIRMATIVE ACTION But then there is the view that there is need to abandon quotas and substitute it with a time-bound affirmative action programme. To give Dalits or OBCs or even Muslims the opportunities that they are justly entitled to, it is necessary to create alternative programs. While the SC and ST reservation should continue, as it will take some more decades for them to reap the benefits, there should be no more addition to the quotas. New sections like Gujjars, Patels, Brahmins and other forward classes demanding quotas should be firmly told that

ti e Sec

rnanc

Gove

they are only for the economically backward. The EBCs, whichever caste they belong to— be it the upper caste or the lower caste—certainly deserve some reservation. Academics like Yogendra Yadav and Satish Deshpande have suggested that a new system creating a multi-layered deprivation index should be considered. They suggest that besides the economic criteria, it must include others factors like education of the parents, place of residence, present background and access to facilities, etc. It would entail rationalizing promotions, or putting a one-generation cap in the case of OBCs even if Dalits and tribal categories are left untouched. There is also a demand for quotas for transgenders. While it may be difficult to immediately reverse reservations, at least a beginning should be made to assess the system. And the sooner the political class realises this, the better it will be. But any reform in a democracy will depend heavily on the political will of those in power and the dominant political parties. IL — The writer is the former political editor of Hindustan Times

An ENC Publication If the media is leaving you behind, stay ahead of it by picking up yesterday’s Views On News! VIEWS ON NEWS Don’t miss a single issue of this stimulating, unbiased, entertaining new fortnightly magazine and get special discounts for yourself and your friends

7, 2015 OCTOBER

HE ALL T LD’S

RNALIST WJO U O R A

: ha John p Shob Trump Sundee : blazing Khanna rs pe on TV Newspa g? 32 dyin

does ,ed

E. N. COMMUNICATION PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) Pin : 201309. Phone: + 91–0120–2471400–432 / Fax: + 91–0120–2471411 editor@viewsonnewsonline.com / sales@viewsonnewsonline.com www.viewsonnewsonline.com / www.encnetwork.in

`50

d public Politiciansc angjc Wji cdi XV h Ñ\jgZ i]Z hdX^Va bZY^V ]^YZ [gdb illai By Ajith P 12

Vohra: Bikram acked Who bl OROP out the vets? 24

rvey: TMM Su as Women ities commod

HEALTH/ Dengue

It’s More than the Mosquito INFRASTRUCTURE PROBLEMS Hospitals have a tough time accommodating the huge number of dengue patients

The outbreak shows that when civic management goes awry and garbage clearance takes the back seat, diseases will fester. It is time our politicians stop their blame game and clean up their act By Aruna Singh

N the annals of Delhi’s medical history, 2015 will go down as the Year of the Dengue. The virus, transmitted by the Aedes mosquito, has been making the headlines for over a month now. One hears scary stories from virtually every corner. Visuals of desperate patients waiting outside overcrowded city hospitals have hogged prime time. The cases of children being refused admission by private hospitals have dominated media discussions. Doctors and health experts have been spelling out the dos and don’ts, should one contract a persistent fever, cough, bodyache—the first sign of the body having been infected

Anil Shakya

by the much feared virus. Platelet counts of family members, friends and colleagues have become the topic of much discussion. The official figures put the number of cases at 3,194. But a Press Trust of India report quoting a civic official talks of a record 5,471 cases this year and 25 deaths due to dengue. The number of houses found positive for mosquito breeding stood at 1,87,691. But the statistics do not quite reflect the panic that has gripped the city. Suddenly, everyone is asking, and rightly so, as to why things have come to such a pass. Has the virus mutated? Has the dengue vector become better adapted to Delhi’s weather conditions? Is the health infrastructure of the city—read hospitals—to blame? Or is it the civic situation—stagnant water and uncleared garbage which have provided breeding grounds for the mosquito— also responsible?

erhaps, all these factors have contributed. But there is also a political vector involved. The root cause of the civic and administrative failure is the lack of coordination between the local bodies and the state government and the latter with the government at the centre. This is the result of different political dispensations that control the three arms of governance refusing to see eye to eye even in a crisis. And into this mix comes Delhi’s Lt Governor, Najeeb Jung. There is no love lost between him and Chief Minister Arvind

October 15, 2015

Kejriwal or the Aam Aadmi Party, currently in power in the national capital. Given all this, the predictable blame game has already begun. But the end-sufferers of this politicking have been the common citizens. Not just those infected by the virus but also those who panic and do not know where to go for treatment. Also, preventive measures to check the spread of the virus and control the breeding of mosquitoes have taken a hit. Garbage clearance and fumigation of vulnerable areas have taken a hit. In the months before the outbreak of dengue, Delhi would well have qualified to be the garbage and filth capital of the world. If one ventured outside the diplomatic enclave and the bungalows where our ministers and parliamentarians reside, then refuse could be seen strewn on the streets. The Prime Minister’s much touted Swachh Bharat campaign has been floundering in his own backyard. It did not help when sanitation workers went on strike in May because they were not paid wages. The Municipal Corporation of Delhi (MCD) said it was strapped by a shortage of funds and blamed the state government for not releasing monies in time. As the garbage piled up civic experts warned of the hazards—they did not predict dengue but said that the refuse would lead to health issues. And then dengue hit. The MCD has been crying foul again. It says sufficient funds were not allocated by the state government to fight or contain the

CAPITAL MESS Garbage mounds are a common sight in Delhi

The root cause of the civic and administrative failure is the lack of coordination between local bodies and the state government, and the latter with the government at the centre.

INDIA LEGAL October 15, 2015

HEALTH/ Dengue

SMOKESCREEN FOR INCOMPETENCE The much-needed fumigation work is erratic

POLITICAL WAR-GAMES (From L-R) Delhi Chief Minister Arvind Kejriwal; Lt Governor Najeeb Jung

spread of the epidemic. Says Mohan Bhardwaj, head of the standing committee on health, a common monitoring and decisionmaking body of the corporation: “We were promised `37.5 crore to fight vector borne diseases. The state government gave us `3.22 crore for all the three corporations—the North Delhi Municipal Corporation, South Delhi Municipal Corporation and East Delhi Municipal Corporation. The three have so far spent `2.98 crore. How could we manage in such less money?” The Delhi government on its part claims that it has given 75 percent of the total annual amount to be disbursed under the Dengue Malaria Control Programme (DMCP) to the

MCD. In response to a PIL, it submitted to the Delhi High Court that `61 crore out of an annual budget of `81 crore for DMCP was disbursed. The annual budget for fighting vector borne diseases in 2015 was `81.52 crore. The state government released the funds in two instalments—the first instalment of 25 percent which came to `20.38 crore and second of 50 percent, amounting to `40.76 crore. But what was left unstated was that the second instalment, which constitutes the substantial part of the total allocation, was released only on September 22, much after the epidemic broke out. “Our employees have been working without pay for three months. We have nearly 1,500 Domestic Breeder Photos: UNI

October 15, 2015

Checkers (DBCs), who check for dengue mosquitoes and larvae in households across Delhi. We also put nearly 900 field workers who check for malaria mosquito, on duty for dengue this year. All of them have worked incessantly to control dengue without salaries this year,” says Bhardwaj. He is right about non-payment of salaries to workers and the problems they have been through. However, Bhardwaj errs when he talks of the commitment of the MCD workers and the effort they put in. Residents of Delhi allege that the MCD has not checked the water tanks and other stagnant water regularly, though they have marked many dates outside houses indicating when checks were made. Rittika Modwel, a resident of Malviya Nagar, Delhi, shares her typical experience: “MCD workers came to our house to check if there were any mosquito larvae in our overhead water tank. There were. but the next time they came they never checked if we had removed the larvae from our tank.” She adds that the workers did not even tell her the method to clean the tank and she had to depend on information from the internet. Incidentally, her house has five dates pencilled near the main door when inspections were supposedly carried out by the MCD.

ealth experts are agreed that the best way to stop dengue is to prevent the breeding of mosquito larvae. And this can only be done through a concentrated campaign in which public awareness and participation is of prime importance. This aspect took a backseat amidst all the power politics played out between the state government, the MCD and the centre. No pamphlets were issued underscoring the need to keep the environs clean. No messages on FM radio or TV. Even hoardings and posters stressing the need to keep Dilli Swacch were missing. The Delhi government’s PR had promos eulogising the merits of the chief minister and the centre had national building aspects in its focus. Even when ads appeared it was how to fight dengue and not how to prevent it. Even that was short on information. When civil society organisations and health activists held a protest demonstration at Delhi Secretariat on September 23, one of their main allega-

tions was that money was being wasted on advertisements which had come up across the city without much information. “We see hoardings advertising the Delhi government’s fight against dengue. But none of them inform how one should avoid getting infected or what to do if one suspects that one may be infected. We demand that this money should be utilised to treat the patients rather than advertising about the chief minister,” says Annie Raja, general secretary, National Federation of Indian Women, affiliated to the Communist Party of India. The government says the job of information dissemination lies with the local bodies. “The MCDs are responsible for prevention, which includes awareness creation, while the state government has to ensure treatment. The treatment in the city is fine. It is prevention that has taken a hit,” says RN Das, officer on special duty with Delhi’s health minister, Satyendra Jain. When it comes to owning up responsibility, the lines blur. But Delhi happens to be the national capital. And it does not do the nation any good if it fights a losing battle against dirt and disease while claiming to be an emerging global power. This should serve as a wakeup call for everyone who has a stake in Delhi. Remember a clean city is the first step towards fighting diseases like dengue. You can’t blame the mosquito for civic decay and degradation. IL

STRUGGLE FOR BASICS Akali Dal activists demonstrate against the failure of the Delhi government to control dengue

INDIA LEGAL October 15, 2015

HEALTH/ State of Hospitals / Access Issues

No Clarity on Charity

A LAND OF PARADOXES (Left) Government hospitals are woefully short of beds and other infrastructure requirements to tackle something like the dengue menace

Despite court rulings, free health care for poor patients in private hospitals remains contentious. Only a law enacted by parliament can make free treatment mandatory By Venkatasubramanian

ILL 1980s, only a few private hospitals and charitable institutions funded by big business families or missionaries, apart from government hospitals, catered to the poor. A policy shift, however, enabled the government to offer subsidies to the private sector by way of land (leased or otherwise) at nominal rates, granting medical care the status of industry in order to guarantee cheap credit, reduction of import duties on equipment, exemption from paying property taxes, water and electricity charges etc. As a result, the private health industry experienced phenomenal growth, with successive governments grappling with the issue of effective regulation of private hospitals in order to ensure meaningful right to health for its citizens. DEFINING JUDGEMENT To live with dignity would take within its ambit legitimate expectations of the citizens of the country of being provided with good environment and health care, so noted Justice Swatanter Kumar, while writing the judgment of the Delhi High Court in Social Jurist vs Government of NCT of Delhi on March 22, 2007. The judgment in this case was a defining moment in the struggle of

October 15, 2015

INDIA LEGAL October 15, 2015

HEALTH/ State of Hospitals / Access Issues

IT’S OUT IN THE OPEN While government hospitals offer affordable healthcare, even in the premier hospital of the country, AIIMS (right), patients have to spend days on the footpath (right) in the absence of proper infrastructure

According to investigations, some high-end Mumbai hospitals used only 4 to 4.5 percent of the 10 percent beds they had committed to use to treat the poor.

October 15, 2015

the economically weaker sections [EWS] of society for free treatment in the best private hospitals in the country. The argument was that these hospitals have availed of various concessions and privileges from the state, and therefore, are duty-bound to provide free treatment to those who cannot afford it. The high court found that the lease deed and terms of the letter of allotment of land to hospitals imposed a contractual, statutory and public obligation on them. The court noted that these hospitals had accepted the condition in regard to the free patient treatment of indigent persons and accepted the same without any reservations. The hospitals contended before the high court that they are super-speciality hospitals and are not expected to treat patients free, particularly the indoor patients as the cost which they would incur may not be financially viable and may affect the deposits and assets of the hospital, and the company or trust running it. In response to this contention, the high court held that this concept of profiteering is foreign to social policies. The government and authorities allotted them land in the heart of the town at such rates to achieve the social goal of providing best possible health facilities to the residents of Delhi. This condition, the high court said, is the spirit behind the statutory

rules, policies and letter of allotment. To take one example, the high court said, the Escorts Hospital has been making a pre-tax profit of `27 crore every year and certainly has come up in the city as one of the significant super speciality hospital. If it had complied with their obligations in a regular phased manner which they had admittedly not, at best their profits might have reduced marginally. In contrast, the high court had pointed to the example of a hospital like VIMHANS, which is a super speciality hospital relating to neurological problems where the condition for free treatment required them to provide free patient treatment to 70 percent of the patients as per the terms of the land allotment, and they attempted their best to adhere to the condition despite losses. The high court was clear that both the Escorts Hospital and the Dharamshila Hospital which contested the claim that they had an obligation to provide free treatment, must be compelled to adhere to the conditions imposed, failing which the law must take its own course including closure of these hospitals. “They cannot thrive at public cost and State expense without fulfilling the minimum conditions imposed upon them to achieve a greater social goal and to look after the interest of the public at large,” the high court held.

It thus held that the condition of free patient treatment to the indigent strata of the society shall be read and construed as 25 percent for OPD and 10 percent for IPD. The court made it clear that this percentage of patients will not be liable to pay any expenses in the hospital. In 2001, the DDA had sought a report from 14 hospitals regarding the fulfilment of their obligations. Only five of them responded to the notice. According to the Public Accounts Committee report of the Lok Sabha in 2005, no action was initiated against the defaulters; nor was any action taken to verify the correctness of the report furnished by the five institutions. The Qureshi committee had concluded that most of the charitable hospitals were no more charitable, and that their managements had converted them to moneymaking machines. The petition by Social Jurist was filed in Delhi High Court in 2002, citing the Qureshi committee report.

earch Centre vs Social Jurist and others, and held that 25 percent OPD and 10 per cent IPD patients have to be given treatment free of cost. The apex court reiterated the high court’s judgment but added that it would not come in the way of the concerned hospital making its own arrangements for meeting the treatment/medicines cost, either by meeting the cost from its funds or resources, or by way of sponsorships or endowments or donations. One would expect that the Supreme Court’s September 1, 2011, order must have finally resolved the controversy. However, activists and authorities are still struggling to ensure compliance of the private hospitals with the order. In some instances, even the high court and the Supreme Court have not been as serious as they should be in demanding and ensuring compliance.

The Delhi High Court in a 2007 judgment held that the private hospitals cannot thrive at State expense without fulfilling the conditions imposed upon them to achieve a greater social goal.

APEX COURT FOR FREE TREATMENT The Delhi High Court judgment was appealed against by some private hospitals in the Supreme Court. The private hospitals proposed to provide free treatment to poor patients with a cap of up to `50,000. The Delhi Government rejected this proposal. On September 1, 2011, the Supreme Court bench comprising justices RV Raveendran and AK Patnaik dismissed appeals in Dharamshila Hospital and ResCASE OF CONTRASTS (Above) VIMHANS does provide free treatment to the poor, despite losses, the Delhi High Court pointed out in a case (Left) The court pointed out that Escorts’ profits wouldn’t suffer if it catered to the poor too. This photo of the hospital is after the Fortis takeover INDIA LEGAL October 15, 2015

HEALTH/ State of Hospitals / Access Issues

But there are several cases where subsidised land was given to hospitals. Moolchand hospital in Delhi was given nine acres of prime land at Lajpat Nagar in South Delhi in 1951. In 1957, the Lahore Hospital Society was allotted five acres of land on Pusa Road, Delhi, to construct a charitable hospital. In Delhi alone, between 1951 and 1976, land was allotted to five different charitable hospitals on the condition that considerable proportion of treatment would be given to poor patients. In fact, the Land and Development Office of Delhi had imposed conditions on some hospitals that required them to set aside 70 per cent beds for free treatment. Apollo Hospital was allotted 15 acres of prime land in South Delhi in 1988, for a token rent of `1 per annum, in return for 33 per cent of free beds. The Delhi high court is currently seized of a petition by the widow of an EWS patient who was denied timely treatment by the hospital, but instead was charged a huge fee. Seema Chauhan’s husband was admitted to Apollo Hospital on April 27, 2013. The Delhi government told the high court that on that date, 28 beds in ICU of Apollo hospital were occupied by EWS category instead of quota of 12 beds for government of NCT of Delhi. Seema, however, contested this claim and has sought the refund of fee paid by her to the hospital. The case is still pending.

SEEKING LEGAL LIFELINE (From top) Moolchand and St Stephen’s Hospital got a reprieve from the Delhi High Court in 2013, on the issue of free treatment to poor patients

October 15, 2015

On March 13, 2013, the Delhi High Court dismissed a petition by Social Jurist seeking to initiate contempt proceedings against three hospitals, namely, Moolchand Khairati Lal Trust Hospital, St Stephen’s Hospital and Rajiv Gandhi Cancer Institute and Research Centre, alleging that they disobeyed the high court’s March 22, 2007 judgment. It was alleged by the petitioner in this case that on November 7, 2008, the Delhi government had named 37 private hospitals which were obliged to provide free treatment to the poor patients and these three hospitals were included in that list; yet these three were not providing free tests and treatment to the poor patients. The high court, however, dismissed the petition on the ground that the three hospitals were not parties to the petition filed by the Social Jurist which was dealt with in the March 22, 2007 judgment.

LEGAL SETBACKS On April 28, 2014, the Delhi High Court through another judgment, disappointed those who had high expectations of the applicability of the March 22, 2007 high court judgment to the entire country, especially after the Supreme Court dismissed appeals against it in 2011. The high court held that the main judgment in 2007 did not decide, as a matter of law, that all allotments of lands made on concessional basis, regardless of whether the conditions in lease/allotment contained requirements of free treatment to economically weaker sections, were to be subjected to the same treatment and directions. This would mean that for applying the March 22, 2007 judgment to any hospital, it has to be identical or similar to the 20 hospitals which were parties to that case. Further, the high court held that it was not enough if the hospitals were beneficiaries of allotment or leases at concessional rates; both

the allotment letter and the lease deed must contain an express requirement to provide free medical facilities. In the absence of such requirement, neither the central government nor the Delhi government had the power to issue directions in that regard, the high court held. The high court also held that the state can issue such directions only with legislative backing. Thus four hospitals, namely, Mool Chand Khairati Ram Trust, St Stephen’s Hospital, Sitaram Bhartia Institute of Science and Research and Foundation for Applied Research in Cancer, who were the petitioners in the case, were exempted from the obligation to provide free medical treatment. On December 5, 2014, another bench of the Supreme Court dismissed an appeal filed by Jharkhand Human Rights Conference against a decision of the Jharkhand High Court dismissing its public interest litigation seeking directions to provide free treatment of the poor in private hospitals allotted land free or at concessional rates. Although the Jharkhand High Court’s dismissal of the PIL conflicts with the Supreme Court’s September 1, 2011 order, the Supreme Court bench comprising justices HL Dattu and AK Sikri said that since these were private hospitals, they were under no obligation to provide such services to the poor. Justice Sikri, as reported in Livemint, added that if these hospitals were companies, under the new Companies Act of 2013, the court could direct them to spend funds for corporate social responsibility on economically weaker sections of the society. THE MUMBAI STORY According to a study conducted in Mumbai in 2013, there were about 80 state-aided charitable hospitals registered with the Charity Commission in Mumbai. Data on bed strength for about 60 of them showed they constituted more than 8,000 beds. The largest 25 among these hospitals accounted for about 6,400 beds. Overall, it meant that about 800 beds were available for the poor for free and another 800 beds at subsidised rates. Around 14 state-aided charitable hospitals, including Lilavati, Breach Candy, Jaslok, Bombay, Hiranandani and Saifee Hospitals, had appealed to the Charity Commissioner stating that they were currently overspending

HEALTH AS A LUXURY PRODUCT Lilavati Hospital (above) and Hiranandani Hospital (left) in Mumbai typify luxurious healthcare for the rich

in order to treat the poor and were incurring losses. The Charity Commissioner allowed four such hospitals—Jaslok, Hiranandani, Breach Candy and Lilavati—to stop treating poor patients temporarily. Investigations that followed the exemption indicated that Jaslok, Breach Candy and Bombay Hospital used only 4 to 4.5 percent of the 10 percent beds they had committed to use to treat the poor. A survey in 2007 showed that prominent notices about such schemes were often absent in hospitals and poor people remained unaware. Provisions such as free treatment can only be in addition to and not a substitute for a strong public health system, and that the noncompliance of the hospitals even to the legally bound provisions highlights the urgent need for a more robust regulatory mechanism, created through a law enacted by parliament. IL INDIA LEGAL October 15, 2015

HEALTH/ Private Hospitals/ Experience

Private Cannot be Public

Health care at well-equipped, corporatized hospitals is strictly the prerogative of those who can afford it. The poor are not encouraged to seek treatment at such facilities By Ajith Pillai

October 15, 2015

OW difficult is it for patients to get admission in a private hospital in the event of an emergency? If they have the financial muscle, then it couldn’t be easier. If not, then it could turn out to be much more than an uphill task. That is the bald truth as it stands. Money is the bottom line that inspires almost all swank hospitals. It is the language that their managements understand. Of course, if you formally put the question to any private hospital. it will point out that the commitment to serve any patient in an emergency, whatever his/her financial situation is its paramount priority and in keeping with its altruistic philosophy. It will however also be underlined that there is no legal obligation for private sector hospitals to treat economically challenged patients although there have been some court orders to the contrary. For example, in Delhi, a high court ruling of March 2007 set down that 10 percent beds and 25 percent treatment in outpatient departments (OPDs) should be kept aside for indigent/poor

patients. The guidelines drawn up following the court ruling made it explicit that poor patients should not be charged for “admission, bed, medication, treatment, surgery facility, nursing facility, consumables and non-consumables etc.” But this has been challenged on various counts, leaving the question of whether private hospitals are obliged to offer their services to the poor, open ended. But despite that, since the guidelines are in place one would think that it would operate in any public emergency, like the recent outbreak of dengue in the national capital. That it did not is a clear indication that the laws are being brazenly flouted. What brought the issue of private hospitals and their callous response to public emergencies was the death of a seven-year-old boy who was refused admission by five private hospitals. He finally succumbed to dengue, more due to medical apathy and negligence. His distraught parents later committed suicide by jumping off the fourth floor of the building they lived in. The incident sparked off reactions at several levels. The Delhi government ordered a ministerial inquiry. Chief Minister Arvind Kejriwal told the media that he was considering calling a special session of the assembly to pass a law that would hand severe punish-

In Delhi, a high court ruling of March 2007 set down that 10 percent beds and 25 percent treatment in OPDs should be kept aside for indigent/poor patients. ments to private hospitals that turn away patients. On September 21, a division bench of the Delhi High Court, while admitting a PIL, reportedly observed that “all hospitals—both private and public—should be directed not to refuse any patients on account of monetary conditions or any other reason and in case of misconduct of hospitals or refusal to admit patients, heavy penalty must be imposed.” So, despite the recent dengue controversy and bad press, one can safely conclude from the court’s observations that the problem of private hospitals and their response to public emergencies and treatment of poor patients still needs to be adequately addressed. PERSONAL EXPERIENCE Last year I was down with dengue and following a respiratory complication was rushed to a private hospital. But before being allowed entry into the hallowed and antiseptic portals of its ICU a deposit of `75,000 was demanded. It was unstated but was made amply clear

FOR THE PRIVILEGED Private hospitals remain in the reach of only those who can afford the treatment

INDIA LEGAL October 15, 2015

HEALTH/ Private Hospitals/ Experience

Very few would go to court over small lapses. Most patients are thankful that they are alive and well, to bicker over details. But milking money from patients is the name of the game.

HEALTH IS WEALTH Many swank private hospitals are money-making shops

October 15, 2015

that the money was a prerequisite for any treatment to kick in. Luckily, plastic money came to the rescue late in the night. Two days of intensive care and a battery of tests (many of them a doctor friend later told me were uncalled for) saw me out of the woods. My insistence that I be discharged at the earliest obviously was persuasive and convincing enough but I was, nevertheless, left with a bill that broke the ` 1 lakh barrier. One entry in it under the head “consultation fee” was a bit of a bother though. A family friend, who works in the same hospital, had called on me during visiting hours to enquire if I needed books or magazines to cheer me up. His was purely a social call but he was listed among the doctors I had apparently consulted and would have to pay for. Very few would go to court over such a small lapse. Most patients like me are thankful that they are alive and well to bicker over details. But I am told that milking money from

patients and their relatives is the name of the game in several private hospitals. And why should anyone expect more from them? In the main, many of these institutions, whatever their pretensions, are healing shops where profit margins matter. Any bed thus allotted to a free patient would reflect poorly in the balance books. This explains why there is great reluctance to admit anyone under the 10 percent free quota. INSIDE STORIES Most doctors do not like to talk about the inner workings of private concerns that pay members of the profession handsomely. But there have been forthright voices. Dr Samiran Nundy is a noted gastrointestinal surgeon and medical academic. He articulated in an interview to The Times of India last year the predicament that doctors find themselves in when they sign up with the corporate healthcare sector: “If you are paid more than you think you are worth, you are in big trouble. Working in the corporate sector is a nightmare. They offer crores of rupees as salary. But the small print in the contract says the salary will be reviewed in six months to see if the doctor is able to bring in the money expected. I have heard of people whose salaries went down by 30 per cent after such reviews and some were even forced to leave because they could not deliver the profits expected. They have financial experts who ask doctors to justify the salaries they are being paid, especially if the revenue they have generated for the hospital from investigations and operations falls short of the targets set for them. There are even places where one-third of the doctor’s salary is taken away for marketing and they are forced to give talks to GPs and canvass them to send patients.” Doctor friends have told me about how most private establishments formulate a bed-topatient ratio. This is a ballpark calculation on when occupancy

of a bed becomes profitable. Very often patients are kept in ICUs long after they can be shifted out so that the bed that they are occupying yields returns. They are apparently kept in the “recovering yet serious” category. Similarly, patients are kept on life support systems endlessly when chances of their survival are in medical terms, zero. What drives such unprofessional decisions are cold financial calculations that have to be adhered to by the doctors. Dr Nundy was candid when he said in his interview that most doctors have to dance to the tune of the managements. “It is all very well for an established practitioner like me to pontificate. I am established and I was privileged as I came to the private sector after 21 years in AIIMS. What about young doctors who are starting out? What can they do? The corporate hospitals are the dominant employers. This is happening in top hospitals. No doctor likes this, but they have no choice.” Last year, when David Berger, an Australian doctor, wrote in the British Medical Journal (BMJ) about his experience of working in a private hospital in India and the rampant corruption that plagues the healthcare system in this country, it drew two extreme reactions. One was that there were of course a few bad eggs but in the main all was well. The other was that large-scale exploitation of patients was a reality which the government as well doctors must accept. Some of Dr Berger’s observations were quite revealing. He pointed out that the Indian healthcare system was an inequitable one and amongst the most privatised in the world. He says this was thanks to the World Bank backed policy introduced in the 1990s which reduced public financing for healthcare so as to encourage the private sector. As a result, he noted, you now have a situation where latest procedures and equipment were available for the rich while the overworked government health system was what serves the vast majority. That government-run public hospitals are poorly equipped, unhygienic and over-crowded has been over the years the focus of much media attention. Nothing much has been done to improve the conditions in such establishments which are the only ones the poor can

turn to. The government inaction is therefore inexplicable and needs to be corrected. But what of private hospitals? It is time that the healing shops are recognized for what they are. Strong regulation and reservation of beds for the underclass can only work if there is persistent audit and monitoring. In the absence of that, most poor patients who are rushed in an emergency to a swank five star hospital will be turned back unless they have political or bureaucratic backing. That is the reality. Rather than depend on the private sector it is time that the government strengthens public health care. As for dengue it would require a civic clean-up drive to contain mosquitoes more than medical intervention alone. But then dengue is not the only health problem that confronts us. I will conclude with this shocking but rather odd and revealing incident. A few years ago a young photographer colleague was troubled by a burning sensation in the chest. His family panicked and rushed him to a private hospital in East Delhi where he was kept under observation. A surgery, he was told, may have to be conducted to rectify a cardiac condition he was possibly suffering from. Luckily, he had the presence of mind to seek a second opinion from a government doctor who prescribed him an antacid tablet for his chest pain! I am happy to report that he is alive and well and so far has had no reason to consult a cardiologist. IL

PAINFUL WAIT Patients outside a goverrnment hospital. It sometimes takes days for a bed to be free

It is time that the healing shops are recognized for what they are. Strong regulation and reservation of beds for the underclass can only work if there is persistent audit and monitoring.

INDIA LEGAL October 15, 2015

SOCIETY/ Domestic Helps

Slaving it out in Delhi

Exploitation of the poor is best exemplified in houses alloted to bureaucrats. They sub-let the servants’ quarter to a family on the condition that its members do household work for free. Slave labor is alive and well By Bikram Vohra

HIS is a crazy, out of synch article and unless you are prepared to humor me until I can convert you to a state of mild suspicion that there is a socio-economic point (see I used a buzz phrase), don’t go further. There is slavery in New Delhi. I chanced upon a 35-year-old man who works as a cleaner and lives in New Moti Bagh in our capital, his residence being the servant quarters of a bureaucrat living in a government house. As a quid pro quo, his wife works ten hours a day as a cook in the master’s house without getting a salary. Hold this thought. I did. I grasped in and while I am not naive enough to pretend that exploitation of the poor is exaggerated, I do believe fervently that those in power, bestowed upon them by the government, have no right to misuse their privileges and perks. That space is not yours to give. You do not own it. It is loaned to you and you have no business to sub-let it. What qualitative difference is there between that woman and the slaves being forced into labor in Charleston? If there is no salary, it is slavery. SLAVERY GOES ON Two coincidences occurred in the same week recently. The first was an expose in the UK indicting Britain’s shameful past of owning slaves, a fact that it has managed to keep under the covers as the world indicts the confederate states across the pond. Even Prime Minister David Cameron’s distant relative owned human beings. As did a sizeable number of lords, viscounts and titled peers. It is a testament to the English ability to rewrite history to their advantage that for nearly 150 years, their nation has never been associated in the global mind with organized slavery. Yet, these disclosures come as a discomfiting recognition of this trafficking. The second epiphany came in the form of a film called I am Slave, based on a true story. At the end of this heartrending story of a woman made to work for free in London, comes the disclosure that an estimated 50,000 slaves were alive, not well and surviving in

the City of London. Behind the trellis fences, the walls and hedgerows of the rich and powerful, enslaved labor was a given. HIGH ABUSE Take our own capital. Even in some 4,800 houses in bureaucratic Delhi, there are quarters (imagine their state) and a survey done honestly would show at least a 50 percent abuse factor. Add up government housing in toto and you are looking at more than 65,000 units. At least 40,000 units are in Category I, II and III. A batch of 4,500 units was sanctioned five years ago, but is still to be completed. The total number of Delhi government employees is conservatively estimated at two lakh. There are three elements that go into making the assumption that government servants exploit the poor shamelessly. One, there is no respect for domestic help in India’s social hierarchy. Two, the mindset is such that there is not a scintilla of guilt over the exploitation. Three, there is comfort in numbers and since everyone is doing it, the quid pro quo is comfortable to live with. After all, the ungrateful, unwashed minions are getting a place to stay, aren’t they? On the downside, doing a little bit of legwork is not only fraught with danger but

Slaves are people who work for free. Who are in no position to fight back because they are bought but not paid for. By law, these men and women and their children who toil for gratis are victims of trafficking.

Illustrations: Anthony Lawrence

October 15, 2015

INDIA LEGAL October 15, 2015

SOCIETY/ Domestic Helps

(iii) In Supplementary Rule 317-B-20, – (a) for sub-rule (1), the following sub-rules shall be substituted, namely:“(1) No other shall share the residence allotted to him or any of the out-houses, garages and stables appurtenant thereto except with his family and immediate relations.” Clause 1A makes for a good defense. “(1A) The servant quarters, out-houses, garages and stables may be used only for the bonafide purposes including residence of the servants of the allottee or for such other purposes as may be permitted by the Director of Estates.”

You are stymied in your research by a quivering fear in those you approach for quotes. They will lose the roof over their heads and fighting the powerful is a non-starter. you are stymied in your research by a quivering fear in those you approach for quotes. They will lose the roof over their heads and fighting the powerful is a non-starter. They shy away from me with alacrity. And I don’t blame them. RULES FLOUTED The rules in allotment of government accommodation are clear, so clear they can be flouted with impunity. In Supplementary Rule 317-B-6 of Allotment of Government Residences (General Pool in Delhi) Amendment Rules, after sub-rule (4), the following subrule shall be inserted, namely:“(5) Every officer shall along with an application under sub-rule (1), submit an undertaking with a declaration that he shall not sublet a residence allotted to him or any portion thereof or any of the out-houses, garages or stable appurtenant thereto, after acceptance of the same.”

October 15, 2015

WHAT A LIFE Hello, Mr Director of Estates, do you have any clue what’s going on? The operative word is bona fide and slave quarters are not bona fide. On this canvas, let us talk to a 54-yearold dhobi who lives in the quarters at the back of a very senior luminary’s government bungalow. He has been there for well over 20 years through a line of predecessors. His current “master” and his extended family imperiously give him an average of 100 items a day to wash and starch. If they are not spotless, he gets reamed for incompetence. With a sigh of resignation he adds: “They don’t even pay for the soap.” It is such a heartbreaking sentence that seething helplessly on hearing it seems a selfindulgence. The gardener is free and so is the sweeper. One big, happy family. I am made to swear I will not ever mention who is his “sahib” is or else his whole family will be destroyed and the rancid carrot of a job for his son out there in the distant future will be pulled back. He immediately regrets having shared the confidence with me and calls several times in the week I am in Delhi to seek reassurance. That is the problem with such a story. You will destroy the weak ones to set up the big fish and it’s not worth the sacrifice because the big fish are sharks and they will get away because they are all in this gigantic conspiracy together. FAMILY ROPED IN I speak to several others by putting on a dis-

Empty promises T

he very same frontline in India’s bureaucracy that so often exploits its domestic workers and misuses its office staff for personal work now cheerfully calls for a fresh amendment to the archaic Minimum Wage Act of 1984. Since then, there has been a depreciation of some 70 times. In this category you could place nearly 90 million Indians being taken for a ride. Between child workers, parttimers, cleaners and vendors, the sector is so disorganized that there is no system in place to protect them. The Modi government has reportedly called for a minimum monthly salary of `9,000 and 15 days paid leave a year. It is a start but since many domestic workers are part-timers, there is no hourly rate in this one exposure of largesse, seeing as how after the announcement, there has been no further movement. But it sounded good. That there was no date for implementation speaks volumes for the intent. To ensure that it will have a broken wing even before it takes off, there is no indication how this decision will be monitored and what penalties will be imposed on those who ignore it, that lot being on at least a healthy plus side of 90 percent of those who hire domestic help. Can you truly see this happening when pays are docked for a half-amorning missing and screams rent the air for an extra egg eaten or the memsahib shrieks blue murder because the driver didn’t clean the car. As for the crude language and tone used, that’s for gratis.

mal charade that since they are getting free space, it is understandable. The fact that the wife who cooks and all her tribe can slave (I will repeat that word every opportunity I get) 15 hours and face scoldings at random is par for the course. The husband, who works elsewhere, can come home and be arbitrarily co-opted to run errands, do the shopping, come to help in case there are guests for dinner. After the London scandal broke, Special Services upped their checks. In Delhi, there is no such movement. Who will walk into the house of an MP or a minister, a judicial majesty or a bureaucrat and take the side of the slave? As the coincidences mounted, I happened to switch on the white noise that serves as news on TV. And there was the Prime Minister Narendra Modi, as eloquent as Marcus Antonius, his oratory sweeping over the crowds like an intellectual khamsin. He spoke of his adivasi brothers and his dalit brothers and other sundry brothers and how dear they were to his heart and I thought, okay, you’ve got it, Prime Minister, most of these slaves are from the so-called lower castes or whatever label they go by these days. Go get them. TIME FOR REALITY CHECK Consequently, let’s start at home. In the capital. Do a spot check of 50 VIP homes and see if they keep slaves. The home ministry should order it, a sting operation. Slaves are people who work for free. Who are in no position to fight back because they are bought but not paid for. By law, these men and women and their children who toil for gratis are victims of trafficking. In one house, the son returns from school and washes the cars. In another, the daughter sweeps the garden. In the third, the office peon does the memsahib’s shopping and comes home after office to serve as a domestic. What price the big talk if those who make the laws break the laws.

That space is not yours to give. You do not own it. What qualitative difference is there between that woman and the slaves being forced into labor in Charleston?

PS: The author is arrogantly certain that this report will be laughed off and ignored because it cuts too close to the bone and no one really cares enough. IL INDIA LEGAL October 15, 2015

BOOKS/ India – The Crucial Years/ Extracts

Troubled Times: A Rewind This seems to be the season for former intelligence chiefs to pen their memoirs. A few months ago, AS Dulat, who headed the Research and Analysis Wing (R&AW), raised several eyebrows when his book of revelations: Kashmir – The Vajpayee Years hit the stands. Now, TV Rajeswar, who was the director of the Intelligence Bureau (IB) from 1980 to 1983 has joined the writers’ club with his disclosures and insider tales. The former IB chief rewinds to his days in the IB from 1962 to 1983. In doing so, he

traverses a sensitive and turbulent political topography that includes Indira Gandhi’s tenure as prime minister, the Emergency, the Punjab militancy crisis and what have you. As Indira’s trusted aide, Rajeswar was the veritable fly on the wall, privy to various meetings, secret parleys and intrigues. As he admitted in a recent TV interview, the 89-year-old Rajeswar did not rely only on his memory to revisit history as he saw it unfold. According to him, he meticulously maintained a daily diary in which he detailed

what transpired, who he met and what he observed. He was apparently very thorough on what he entered in his personal journal. “I would write it down once I came home— even if it was late in the night,” he revealed to an interviewer. His labors have now been distilled into a 283-page book published by HarperCollins. India – The Crucial Years is more than just a chronology of events. The book offers an insight into the decisive moments of the 1970s and the 1980s in a forthright and

objective manner. Though he was a favorite of Indira Gandhi, and is open in his admiration of her prime ministership, Rajeswar does not hesitate in also being critical of her several moves and decisions. The Padma awardee also touches on the dangers of political authoritarianism. India Legal presents select excerpts from India – The Crucial Years. Here is a peep into contemporary history through the bifocal of one of India’s better informed intelligence chiefs.

IB UNAWARE OF EMERGENCY

FIGHTING FOR RIGHTS George Fernandes, who opposed the Emergency, was arrested in June 1976. Incidentally, IB had no clue about the Emergency before it was declared

October 15, 2015

…And then on the night of 25 June 1975, Emergency was declared. In arriving at the decision, Mrs Gandhi was assisted by a small group of advisors, including West Bengal Chief Minister Siddhartha Shankar Ray, who drafted a letter for President Fakhruddin Ali Ahmed to issue the proclamation as national security was being threatened by internal disturbances. A few minutes before midnight, the president signed the proposal, sent to him without discussion with the Union cabinet, which learnt of it and ratified it the next morning. The IB, too, was equally surprised when the Emergency was declared and thousands of protest and strike leaders were arrested around the country. As the senior-most joint director next only to the DIB, I was dealing with matters related to all the important political parties and communal organizations. At no stage was the IB asked to prepare an assessment of the prevailing political situation or to give suggestions regarding the line of action that could be taken. This was made clear in the deposition of Atma Jayayram, who was DIB till August 1975, before the Shah Commission, which was appointed in 1977 to look into the excesses of the Emergency.

The lists of people to be arrested were compiled at the PM’s house with the help of few handpicked political activists, and instructions for arrests were passed on telephonically. Some chief ministers were sent for overnight by special planes and the lists handed over to them. By August 1975, the total number of people arrested in the country stood 91,871. In subsequent weeks, 48,606 were released. In the last week of November

THROTTLING DEMOCRACY The then prime minister Indira Gandhi declaring Emergency on June 25, 1975

INDIA LEGAL October 15, 2015

BOOKS/ India – The Crucial Years/ Extracts

VOTARIES OF EMERGENCY West Bengal CM Siddhartha Shankar Ray (L) played a pivotal role in persuading Indira Gandhi to impose Emergency; RSS chief Balasaheb Deoras (R) is said to have overtly conveyed his support for Emergency to Indira Gandhi

FOND MEMORIES? Indira Gandhi during her visit to Itanagar when the author was LG of Arunachal Pradesh

October 15, 2015

1975, the figure stood at 43,265.

RSS SUPPORTED EMERGENCY The Rashtriya Swayamsevak Sangh (RSS), a right-wing Hindu nationalist organization, was banned in the wake of the Emergency. But its chief, Balasaheb Deoras, quietly established link with the PM’s house and expressed strong support to several steps taken to enforce order and discipline in the country. Sanjay Gandhi’s concerted drive to enforce family planning, particularly among Muslims, had earned Deoras’s approbation. A senior IB officer knew some people in the higher echelons of the RSS and had some meetings with them, including Deoras. Deoras was keen to meet Mrs Gandhi and Sanjay, but this was not possible as Mrs Gandhi did not want to be dubbed as an RSS sympathizer. The

organization had specifically conveyed its support to the Congress in the post-Emergency elections. These attitudes on the part of political parties and personalities show that authoritarianism may very well take root and stay on undisturbed in this country for a certain period, and political parties and personalities will adjust their attitudes to suit the new situation and the new rulers. Moral issues will then be thrown overboard, and only the question of survival and future prospects will become the overriding considerations for most parties and people. If only Mrs Gandhi had announced elections in February/March 1976 or even in September/October, some of the political parties and influential personalities who had been hounded by her would have stood by her and she would have had a bright chance of coming back to power. Towards the end of 1976, the idea of the presidential form of government to replace the parliamentary system, with a more powerful directly elected executive, took shape. The idea originated from the PM’s house, and Bansi Lal was its most ardent supporter. In the Congress, DK Barooah—the party president remembered for his sycophantic ‘India is Indira’ proclamation—and AR Antulay, a general secretary of the party, used to periodically meet in Om Mehta’s room in the Parliament House and discuss the various possibilities. Mrs Gandhi was unable to make up her mind either way, but Sanjay and Bansi Lal were determined to push the change through. There was apparently some discussion on the subject during Mrs Gandhi’s visit to Mauritius in December 1976, with Defence Minister Bansi Lal being a member of the PM’s party. Soon after their return from Mauritius, the UP Congress Committee met in a session. Mrs Gandhi, Sanjay and Bansi Lal had visited UP. While Mrs Gandhi was in Rae Bareli, Bansi Lal asked the UPCC to pass a resolution recommending the presidential form of government. In the meeting, some members wanted to know whether the proposal had the PM’s blessings, and they were told that it was so and that Sanjay Gandhi desired that the resolution be passed immediately. Mrs Gandhi was faced with a fait accompli, but she made no comments on the resolution or the proceedings of

the UPCC. Eventually, however, the idea was given up as impractical. The IB once again conducted a detailed review and assessment of the Emergency in December 1976. It was the IB’s firm view that the negative aspects of the Emergency were increasing day by day, and if a political solution was delayed any further, there might be serious law and order problems in the country and Mrs Gandhi’s life could be in danger. The opposition parties were in disarray, their leaders in jail, and it might take some time for them to organize themselves after their release. The elections should be announced within a month of their release and the abrogation of Emergency—so went the IB’s recommendations. There was an influential section around Mrs Gandhi which opposed the holding of elections, and Sanjay Gandhi was one of them. However, this time, Mrs Gandhi overruled him, or rather convinced him of the need to avoid postponing things further and thereby inviting a big disaster. Once Mrs Gandhi announced her decision to call elections, the political prisoners were released. Suddenly the situation in the country underwent an electrifying change. All the pent up fury against the excesses of Emergency burst forth, and the opposition leaders became national heroes overnight.

ESPIONAGE AND COUNTERINTELLIGENCE …India is a happy hunting ground for intelligence agencies from all over the world, particularly the western ones, the CIA being the most important of them. There was often coordination between the CIA and the agencies of some of the Western countries. The British were least interested since they had normal sources of information, with which they were quite satisfied. In any case, they did not have any aggressive policies to impose or sell in India. The East Bloc headed by the KGB of Soviet Russia was mostly working in unison. The

Czech agency was particularly close to the KGB. The East Bloc, however, didn’t have much to offer to its contacts and agents either by way of cash or goods—unlike the Western agencies, which consequently had a greater advantage. Some of the intelligence operatives of the East Bloc countries were also known to resort to devious tactics deliberately. For example, an East Bloc operative would visit a well known correspondent’s residence after taking a tortuously circuitous route. Our suspicion was that such ploys were the result of routine intelligence craft or they deliberately wanted to create a hush-hush atmosphere to impress their superiors or associates who often travelled with them but remained in the car. It was tragic to see even senior politicians, both in the opposition parties and the ruling party, some of whom had also held cabinet positions in the past, attending lunches and dinners hosted by junior officials of Western embassies of the rank of counsellors and even first secretaries. As for the journalists, they were a law unto themselves, and some of them had no compunction about excepting bottles of liquor in return for periodic assessments in writing, which they regularly gave to their foreign contacts. In the case of politicians who were invited for exclusive lunches and dinners, a good two-hour stay would give the hosting diplomat vast inside information on various developments in the country. The politicians were usually very vocal and did not hesitate to speak frankly and openly with foreigners. The left-

TOUGH CALL Bansi Lal (L) and Sanjay Gandhi wanted India to have a presidential form of government in 1976

INDIA LEGAL October 15, 2015

BOOKS/ India – The Crucial Years/ Extracts

THE CRUCIAL MEN (L-R) DK Barooah, the then Congress president; AR Antulay, who was a general secretary of the party; Henry Kissinger

ist elements in the ruling party were the favourite invitees, as the East Bloc embassies were able to get as much information out of them as their western counterparts. Some of the right wing politicians did not have any hesitation in attending the exclusive parties hosted by the East Bloc diplomats either. The foreign diplomats were very particular about joining the various Delhi clubs, such as the Golf Club, the Gymkhana Club, the Flying Club and so on. The acquaintances and friendships made with officers and servicemen at these places were developed persistently with carefully contrived casual meetings, followed by gifts, trips for their children, and so on. Unlike politicians, officers attending parties or exclusive meals and meetings with the foreign diplomats were expected, as per the standing instructions, to report these and also the substance of the discussions held. These instructions were mostly ignored, and the secretaries in charge of the ministries also generally turned a blind eye to such occurrences.

POLITICAL CONTACTS Some foreign intelligence agencies resorted to lobbying certain parties, groups and candidates for a certain period, with the long-term objective of building permanent contacts, who were often handed over to successor operatives when their own postings came to an end. In 1981, an East Bloc country extended considerable support through one of its satellite countries to certain people who organized a political

October 15, 2015

jamboree in a metropolitan city. In early 1982, a prominent Western country actively promoted a regional party, which came to power in the state soon after. The same Western country was generally known to support most of the regional parties. Among the politicians, there were a few MPs who were regularly attending exclusive lunches and dinners hosted by the first secretaries of Western embassies who were in charge of political affairs and intelligence gathering. The IB had compiled a list of such people and given it to the government with the suggestion to discreetly caution them. In one particular instance, an ex-MP had started functioning more or less as a regular source for a Western embassy and was quite blatantly cheeky about his meetings. He was advised to stop his activities. Later, the diplomats concerned became alert, and the politician himself got quite scared. He begged to be let off the hook and said he was severing ties with all his contacts and leaving Delhi for good. Talking about politicians, it may be recalled that Henry Kissinger, who served as national security adviser and later as secretary of state in the administrations of US presidents Richard Nixon and Gerald Ford, once referred to a high level contact he had in Indira Gandhi government. It could refer to a senior civil servant or even a minister. It was generally believed that a senior cabinet minister who had held that position for many years was the suspect. This minister was the contact man for a senior correspondent of the two leading agencies. My own theory is that the guilty person was not this minister but someone else. In this connection, I would add that the allegation of Seymour Hersh, an American investigative journalist and writer, that Morarji Desai was a CIA agent was absolute nonsense as there was nothing against him in this direction at any time.

JOURNALISTS As for journalists, there was a correspondent

who some years later become an editor of a paper published from Delhi, who was then working for widely circulated English daily from Delhi. In 1980, the correspondent had periodical secret meetings with an East Bloc diplomat and was also seen handing out some papers on some occasions. This particular correspondent was quite close to a high dignitary, and I had told people concerned to be wary of him. It was, however, of no avail since the correspondent continued to be the favourite. There was another correspondent who was the chief of bureau of one of the English dailies. He became a popular figure on television in later years. He was in secret contact with a Western diplomat, even though he was supposed to be a leftist and a progressive. The correspondent ultimately got the message and put an end to the secret meetings. There was another correspondent representing a Western newspaper, but his main work consisted of liaison work by striking friendships with ministers and officers. The correspondent often threw big parties and made it a point to invite foreign and Indian diplomats and some MPs. The foreign diplomats always took liquor bottles with them, which were enough for the next party, and thus it went on and on.

CIVIL SERVANTS Among the civil servants, it was usually the big fry, who had all the comforts and facilities in life, who permitted themselves to be used by

foreign agencies, either by negligence or design, mostly the latter, due to various long-term calculations. A stenographer in the MEA might plan his future, such as his children’s higher education, and wait for a foreign posting and quietly work out his job opportunity in the host country and then resign. In a few desperate cases, certain low and middlelevel officers deliberately got in touch with foreign missions for pecuniary gains. But certain senior officers did it out of over-ambition, such as settling their children in multinational companies abroad, getting themselves assignments after retirement in various international agencies, and so on. There was a case of a very senior officer who was considered competent during his days of power and glory. He had, however, no compunction about compromising his conscience on certain important national issues. In one important policy matter, he compromised the position of India in the face of pressure from Western countries. After his retirement, he was chosen for a top assignment in a Western country, but the circumstances vastly changed by the time the assignment could be finalized. When the case was given a fresh look, some unpleasant information was thrown up, such as his close contacts with the wrong people, impermissible transactions, and so on, and eventually the proposal was shelved. In another case, a senior officer, who considered himself a womanizer, was reckless with his contacts with foreign diplomats and women, utterly unmindful of the various standing instructions of the government. A detailed report detailing his activities and contacts was sent up to the government. He was arrogant enough to ask how he could be blamed if certain women found him irresistible. He was eventually sent out of Delhi, but no action was taken against him. All this happened in mid-1982, and three years later the same officer got into far more serious trouble by breaking up the family of another senior officer. There was an enquiry into the matter. He was placed under suspension and proceedings were drawn up for his dismissal. This officer’s case is a clear example of how certain people could never reform themselves and could never be saved. IL

DISPELLING NOTIONS Rajeswar says the allegation that Morarji Desai was a CIA agent was all humbug

India – The Crucial Years By TV Rajeswar Published by HarperCollins Pages: 283; price: 599

INDIA LEGAL October 15, 2015

STATES/ Kerala/Munnar Strike

What’s Brewing in the Hills? In an unprecedented victory, women tea workers in Munnar wrangled a bonus from the Tata management and forced the state government to amend the Plantation Labor Act. Is this a lesson for Leftist trade unions in Kerala? By Jacob George

HE mighty Tata Tea management was brought down to its knees by the lowest rung of the corporate ladder—woman workers of Munnar, the famed hill station in Kerala known for its tea plantations. These women who get a wage of `232 a day, meager by Kerala standards, were demanding not just more bonus but increased dividend. The nineday strike of more than 12,000 workers of the Kannan Devan Hills Plantation (KDHP) sent shockwaves to mighty trade unions in the state and forced the state government to rewrite the Plantation Labor Act (1951) and the Factories Act. “The government will bring amendments to the rules in the Plantation Labor Act and the Factories Act to solve the grievances of the plantation workers,” assured Chief Minister Oommen Chandy after a marathon discussion with representatives of the striking estate workers.

SEAT OF WOMEN POWER? A Munnar tea plantation Furqan Faridi

October 15, 2015

POWERFUL FORCE The strike by thousands of angry women workers virtually paralyzed Munnar, an otherwise busy hill station, blocked road traffic and deliberately kept trade union leaders and political parties at bay. The women loudly proclaimed that all of them had betrayed their cause and came out with a list of prominent trade union leaders who have taken freebies from the Tata management, which included houses and cars. S Rajendran, a CPM MLA, was not even permitted to address the striking workers. Mahila Congress leaders Bindu Krishna and Lathika Subhash were driven away by angry workers. They didn’t even allow INDIA LEGAL October 15, 2015

STATES/ Kerala/Munnar Strike

UNITED FRONT The strike by women workers of Munnar tea plantation was meticulously planned and executed

October 15, 2015

the minister for SC/ST development, PK Jayalakshmi, to sit with them. The women accepted only two political leaders—opposition leader and former CM VS Achuthanandan and CPI MLA ES Bijimol, who represents the neighboring Peerumade constituency. It was surprising and even shocking to see how the downtrodden estate workers challenged the supremacy of trade unions in the highly labor intensive plantation sector in Munnar. Gomathi, one of the workers who has emerged as a prominent leader of the striking women and a star on TV channels, says that the union leaders have betrayed them. “We have lost trust in these leaders. We are toiling in the estates and the company is reaping profits, leaving us into acute poverty,” she said. One of the reasons behind the power of these poor women is that they are not mere workers of Tata Estate, but its owners too. They are shareholders of KDHP and the strike was not just for more bonus, but for an increased dividend. KDHP has more than 13,000 workers in its fold, mostly women.

It was, in fact, acute poverty that pushed these women into striking. Initially, they did not even let their men go near the strike venue for fear that they would be purchased by the Tata management. In Kerala, wages for laborers are quite high and those from West Bengal or Assam get a minimum of `800 a day, whereas the daily wage of an estate worker is only `232. EXPLOITED LOT The plantation industry in India is among the largest private employers and is spread across Assam, Kerala, Tamil Nadu and West Bengal. However, the workforce here is among the most exploited in the organized sector. Their wages are among the lowest when compared to other workers and their living conditions, dismal. Most of the plantations are located in remote and isolated areas and the illiterate workers in Kerala are mostly from neighboring Tamil Nadu with no awareness about their rights. Plantations also do not come under the purview of rural development and antipoverty programs and exploitation of work-

ers is common as there is no mechanism to monitor their welfare. Union leaders, too, join hands with the management. In 1951, parliament passed the Plantations Labor Act (PLA), which was meant to regulate the conditions of workers in plantations. Under this law, state governments were empowered to take all feasible steps to improve the lot of plantation workers. This law helped create conditions for organizing the workers and led to the rise of trade unions. However, the potential benefits promised under PLA remain unachieved mainly due to the ignorance of workers about their rights. The demand of the Munnar workers was that bonus be hiked from the present 10 percent to 20 percent and daily wages be raised to `500. But the management said that profits had declined and hence, they had brought down the dividend from last year’s 19 percent to the present 10 percent. The profit of KDHP last year was `15.55 crore, whereas this year, it was `5.02 crore. However, Tata Global Beverages Limited, which has 28.63 percent stake in KDHP and which buys its tea in auctions, had a profit of `259 crore last year. And this was the crux of the negotiation.

It was surprising to see how the downtrodden estate workers challenged the supremacy of trade unions in the labor intensive plantation sector in Munnar.

DEFT NEGOTIATION In the reconciliation meeting in Kochi, Oommen Chandy, Labour Minister Shibu Baby John and KDHP managing director Abraham Mathew faced representatives of the tea workers, who then negotiated effectively and walked away with a fabulous settlement. In addition to the 8.33 percent bonus already announced, they will now get 11.67 percent as ex-gratia payment. As for their demand for a daily wage of `500 a day, it will be declared by the month-end. VS Achuthanandan said this was a perfect victory for the striking women workers of Tata Tea. “These poor people are leading a hard life for years and years. It is for the first time that the tea workers have emerged victorious in a strike. Their wages should be hiked and living conditions improved,” demanded VS. The demands of the tea workers were genuine and hence, the government was determined to settle the issue in favor of

them, said Chandy. But the settlement of the strike is not an end in itself. KDHP’s major challenge will be hiking the daily wages of the workers. Shibu Baby John has said that a daily wage of `500 will sound the death knell of the plantation itself, which will be against the interests of the workers. And what if this kind of upsurge happens in other estates? It would be disastrous in a state like Kerala as its economy heavily depends upon cash crops like rubber, coffee, cardamom and tea. However, the strike by women, meticulously planned and executed, can strike a blow to all trade unions. Women have at last realized their real strength. Where does that leave the trade unions in a state where they rule the roost? And what will the Tatas do now? With women workers who know their maths, it won’t be easy for the management to take them for a ride again. There was some flavour in this brew. IL

IN FAVOR Former CM of Kerala VS Achuthanandan was allowed by the women to participate in the strike

INDIA LEGAL October 15, 2015

STATES/ Haryana/ Poll law

Eligibility Crisis

FAR-FETCHED APPROACH (Above) The new law on educational qualifications would have kept a majority from contesting panchayat polls

October 15, 2015

AN the state impose minimum educational qualifications for contesting elections? Will it empower and encourage citizens, particularly women, or keep them out of the democratic process? Is it the same as disqualifying those with criminal background or those who default on payment of government dues? These are some of the questions the Supreme Court may have possibly deliberated on when it stayed the Haryana government’s amended rules imposing conditions on the eligibility of candidates who can contest panchayat elections. The state government has now been forced to indefinitely postpone elections to panchayats after the apex court stay. While seeking the state government’s views, the apex court had observed that fixing minimum

The apex court has stayed the Haryana Panchayati Raj (Amendment) Act, 2015, which laid down minimum qualifications for contesting panchayat polls. Does the new law exclude a sizeable section of the population from contesting? By Vipin Pubby in Chandigarh educational qualifications to contest the panchayat elections would debar 50 percent citizens from the fray. The Haryana assembly had passed the Haryana Panchayati Raj (Amendment) Act, 2015 on September 7. According to the amendments, general candidates must have cleared Class X, while women and Dalit candidates were required to clear Class VIII and Class V, respectively. It also made it mandatory that candidates should not have a criminal conviction, no pending electricity bills or loan payments and should have a working toilet at home. The petition, challenging the provisions of the amended law, filed by the All India Democratic Women’s Association argued that it rendered many candidates in the state ineligible and was against the constitution.

The petitioner claimed that 83 per cent of Dalit women and 71 per cent women in the general category and 56 per cent men would be excluded from contesting the panchayat polls by the law and it affected fundamental rights of those wishing to contest elections. Attorney General Mukul Rohatgi, arguing for the state, referred to various constitutional provisions and said making class X pass mandatory to contest was part of a “progressive law making” process as the sarpanches and panches have to perform a host of jobs which needed a minimum qualification. He argued that panchayats were like mini state governments. The representatives were delegated powers of state governments and they were empowered to take part in economic reforms. “How can that be accomplished when officials put thumb impressions and later dispute such impressions or say we don’t know what we signed”, he pleaded. Rohatgi also said when laws, such as barring persons having more than two kids from contesting polls, had not been stayed in past, then this law should also not have been stayed. When the apex court made its clear that it was staying the provisions of the new law, Rohatgi said the state would rather defer the elections and would like the Supreme Court to rule upon the new law’s validity. As per the available data, the new rules will make at least 50 per cent of the incumbent sarpanches and 70 per cent of the panches ineligible to contest. Out of the 6,075 sarpanches in the state, 15.8 per cent are illiterate and 35 per cent are not matriculate. A total of 28.8 per cent have passed Class X, 10.9 per cent have completed Class XII and 7 per cent are graduates. Only 1.9 per cent are post graduates and above. The situation is even worse when it comes to panches. Of the 58, 608 panches, 32.2 percent are illiterate, while 38 per cent have not studied up to matric. Around 21.2 per cent are matric, 6.3 per cent have completed 10+2. Only 2 per cent are graduates and 0.3 per cent are post graduates and above. The law seems slanted against the poor as this section of the society is most deprived of educational facilities. It was also against women in view of the discrimination based on gender, particularly in rural areas. This

discrimination is reflected in comparatively poor literacy levels among females in rural areas as compared to males. A study conducted on the literacy levels of female sarpanches showed that 82 percent of them were near illiterates. While 16 per cent had attended school just 2 per cent were graduates. Such a law would further keep the already marginalized away from inclusion in the democratic process. Then, there would have been practical difficulties. Local newspapers had carried stories on some villages where no woman met the criteria even though the seats were reserved for them. The Haryana government has taken the plea that the legislation was aimed at encouraging literacy. It appears preposterous considering that there is lack of adequate educational facilities in rural areas. Even where there are schools, lack of basic amenities has kept female students away. There have also been frequent reports of sexual harassment. Incidentally, the Rajasthan government had also issued a similar ordinance in December 2014, imposing minimum educational qualifications for those contesting panchayat elections. The provisions of the ordinance were challenged but the courts had not provided any immediate relief. The elections were conducted under the new rules but the issue of constitutionality is still pending before the Rajasthan High Court. IL

WHITHER EDUCATION? According to a study, more than 80 per cent of female sarpanches are illiterate

— The writer is former Resident Editor, The Indian Express, Chandigarh INDIA LEGAL October 15, 2015

Families of 17 Deceased Lawyers given Cheques of 5 Lakhs each by the Chief Minister

Lawyers Welfare Fund of U.P. has increased to 200 crore

Uttar Pradesh Chief Minister of the state's people in general Yadav as Chief Minister of the Mr. Akhilesh Yadav said that and the poor, downtrodden and country's largest state is an Samajwadi government had deprived sections of society in example to be sincerely followed always worked for welfare and in particular. He has devoted by the other states if they really larger interest of lawyers, adding h i m s e l f t o t h e c a u s e o f want to empower their people. that present state government ameliorating the lot of the The Chief Minister informed at was taking forward the a function, recently held w e l f a r e m e a s u r e s Chief Minister gives away financial at his official residence initiated by the after distributing financial g o v e r n m e n t o f M r. assistance to dependants of deceased assistance to deceased Mulayam Singh Yadav. lawyers, Samajwadi Government has lawyers. Mr. Yadav gave He further added that the away cheques of Rs. 5 state government was always taken care of the interests of the l a k h e a c h t o t h e committed to the welfare, lawyer fraternity : Chief Minister dependants of 17 security and honour of the deceased lawyers. The lawyer fraternity. Chief Minister also Chief Minister Akhilesh Yadav disadvantaged sections of launched a short film 'Ummeed has not only ensured the welfare society for their socio-economic K e N a y a k ' b a s e d o n and protection of interests of emancipation, besides taking all humantarian help provided by lawyers, but also started a necessary steps to protect social activists of the state in the number of schemes programmes honour of girls and women. The aftermath of the devastating and projects in the larger interest young and dynamic Akhilesh earthquake in Nepal.

Mr. Yadav also said in his address that death of anyone is a painful thing and that it was the responsibility of the Government to extend help to the bereaved families. Adding that while nothing can compensate for the loss of lives, the financial assistance of the state government would to some measure give some relief to the families. Referring to the corpus fund arranged for the welfare of lawyers, the Chief Minister said this fund can never be done away with and said this fund is solely meant to help the dependents of deceased lawyers. Mr. Yadav also informed that a beautiful and new building of the Lucknow bench of the Allahabad High Court was being constructed by the state government and that a feasibility study to run Metro Rail in Allahabad has also been initiated. In future too, he assured, the State Government

would keep working to expand facilities for the legal fraternity. Launching the short film 'Ummeed Ke Nayak', the Chief Minister said that the state government soon after the devastating tremors in Nepal had

Present government is trying seriously to provide more facilities to lawyers. State Government is committed to security, welfare and honour of lawyers. embarked on a number of relief measures to provide succour to the quake hit people. A large number of affected people were taken to safe places by the buses of the UPSRTC, Mr. Yadav recalled, while adding further that the state government and various social organizations also

worked relentlessly to provide comfort, relief and other necessary items to the quake-hit people. Expressing his gratitude for people who have contributed to the noble cause, Mr. Yadav also lauded the efforts of Mr. Navalkant Sinha who made the short film. In his welcome address the advocate general Mr. Vijay Bahadur Singh said that the Chief Minister has decided to raise the Lawyers Relief Fund to Rs. 200 crore. He also informed that the state government had increased the amount to Rs. 5 lakh admissible to the family of a lawyer who died on January 01 2014 and afterwards and aged upto 60 years. Nowhere in the country such a scheme has so far been implemented. Under the fund, Mr. Singh added, five schemes - UP Lawyers Social Security Scheme, financial assistance to the families of deceased lawyers, life insurance, supply of law books to the Bar Association libraries and repair-construction of tin shades/ chambers for seating of lawyers, are being executed. Also present on the occasion were Political Pension Minister Mr. Rajendra Chowdhary, Principal Secretary (Law and LR) Mr. Abdul Shahid, additional advocate general Mr. Gaurav Bhatia, Mrs. Bulbul Godiyal, Mr. Ashok Pandey, Chief standing counsel Lucknow Mrs. Sangita Chandra, president of the UP Bar Council Mr. Paresh Mishra, vicepresident Ms. Madhulika Yadav and other dignitaries.

MORE NEWS/ National

Police protection to transgender youth

Kalam’s book release cancelled

19-year-old transgender NRI was granted police protection by the Delhi High Court after she filed a plea alleging that her father—an “influential businessman” with “deep roots in Uttar Pradesh”—had “activated the state machinery” to deprive her of her “fundamental rights to life, liberty and education,” reported The Indian Express.

The teenager, who “identifies as male”, was studying neurobiology at a prestigious college in the US until she was forcibly enrolled at Dayalbagh Educational Institute in Agra and told to “keep mouth shut” about gender preference and sexual orientation. In the plea the transgender alleged that the parents were trying to force her to marry.

SC women lawyers want ban on porn

HE Supreme Court Women Lawyers’ Association (SCWLA) has moved the apex court, seeking a ban on porn and dissemination of “objectionable” material, considering how easily school students can access porn. The petition was filed by association’s secretary Prerna Kumari. “Pornography corrupts the mind of the young generation today, who tend to commit crime against women/girls/children. Easy availability of porn through internet, CDs, porn videos/porn clippings are the root cause of most of the offences as well as crime against women/girls/children. We seek the formulation of a national policy on the issue of pornography and to frame guidelines to curb the growing issue of child pornography,” the petition said. The women lawyers have even suggested schools to install jammers to prevent access to porn sites. This petition comes a few weeks after the controversy over the government’s move to block 857 porn sites.

Swamy moves court

JP leader Subramanian Swamy has filed a petition in the Madras High Court challenging the suspension of Indian Premier League (IPL) teams of Rajasthan Royals and Chennai Super King. He has alleged that former IPL boss Lalit Modi

had “influenced” the course of events affecting the two “star teams” of Indian Premier League. Stating that the petition was filed in the interest of public and for the cause of cricket, Swamy sought an interim stay order on Justice RM Lodha Committee banning these teams. When the petition came up for hearing on September 21, a high court bench comprising Chief Justice Sanjay Kishan Kaul and Justice TS Sivagnanam ordered that it would be heard along with a petition filed by MS Dhoni-led CSK, challenging the team’s suspension.

Aid for acid attack victims

HE Karnataka government has announced a pension scheme for acid attack victims. The victims would each get `3,000 per month. The pension will

October 15, 2015

BJP, SP role in Muzaffarnagar riots

USTICE (retd) Sahai Commission, which was appointed by the Samajwadi Party government to inquire into the Muzaffarnagar riots of 2013, has indicted local members of the SP in Uttar Pradesh and the BJP for their role in the riots. Over 60 people had been killed in the riots. The commission blamed senior police and administrative personnel in the district for lapses. The commission submitted its report to Governor Ram Naik. The report would be sent to Chief Minister Akhilesh Yadav for further action.

be provided for acid attack victims till the end of their lives. The scheme was announced by Umashree, Minister for Women and Child Development. In addition to that, the government would also bear the hospital bills for the treatment of the victims

for up to `20 lakh. This year in June, the Uttar Pradesh government had also announced a pension scheme for acid attack victims. In August, the Delhi government announced free treatment for acid attack victims even in private hospitals.

FTER the hue and cry over the renaming of Aurangzed Road to Dr APJ Abdul Kalam Road, another controversy has arisen involving the late president. This time, it is over the launch of Kaalaatheetham, the Malayalam translation of his book, Transcendence: My Spiritual Experience with Pramukh Swamiji in Thrissur the last week of September. According to Malayala Manorama, various organizations staged protests at the Kerala Sahitya Akademi, after Sreedevi S

Happy Birthday song claims ‘invalid’

Kartha, the translator of the book, was denied permission to share the dais allegedly at the insistence of Swami Brahmavihari Das, the chief guest. The Swami skipped the function following the controversy. Sreedevi said she was asked by the publishers to stay away from the dais as Brahmavihari Das does not want to share the stage with a woman. The book was supposed to be released by Kalam’s co-author Arun Tiwari and eminent Malayalam writer MT Vasudevan Nair.

Uproar over Modi’s autograph

ONE of the companies that have collected royalties on the “Happy Birthday” song for the past 80 years, held a valid copyright claim to the song, a federal judge in Los Angeles has ruled, Los Angeles Times reports. In a stunning reversal of decades’ old copyright claims, the judge ruled that Warner/Chappell never had the right to charge for the use of the famous “Happy Birthday To You” song. Warner had been enforcing a copyright since 1988, when it had bought Birch Tree Group, the successor to Clayton F Summy Co, which claimed the original disputed copyright. Judge George H King ruled that a copyright filed by the Summy Co in 1935 granted only the rights to specific piano arrangements of the music, not the actual song.

HERE was a huge uproar after Prime Minister Narendra Modi autographed a flag during his recent visit to the US. The controversy erupted after chef Vikas Khanna, who had prepared dinner for the Prime Minister, along with Fortune 500 CEOs, approached Modi with a flag made by Smile India Foundation’s children to be gifted to

President Barack Obama. According to the rules governing the national flag, putting any inscription on the flag is considered disrespectful. The government has defended the act, saying it was not a flag, it was a memento made by a differently-abled child of Smile India Foundation. It was not a proper flag as it did not even have the Ashoka wheel. So the question of attracting the Flag Code of India, 2002 or Prevention of Insults to National Honour Act, 1971, does not arise. Soon after the story broke out, #ModiDisrespectsTricolor began trending on Twitter. The Congress was quick to criticize Modi. Party leader Manish Tewari tweeted: “Has PM read Para 2.1 sub para 6& Para 3.28 of Flag Code 2002 that states lettering on National Flag is misuse. 3 yrs jail under PINH Act 2003.”

‘LG’s approval not binding’

HE Aam Admi Party (AAP) government, represented by senior advocate Dayan Krishnan, appearing before the bench of Chief Justice G Rohini and Justice Jayant Nath, has argued that the Delhi cabinet is not bound to take the approval of the LG regarding its decisions. According to The Indian Express, advocate Krishnan argued that the Lt Governor was required to consult the chief minister even to take decisions on issues concerning police, land, and law and order, even though these were not state subjects. Last week, the high court bench decided to hear the final argu-

ments on the issue of interpretation of Article 239AA of the Constitution, after cases were filed regarding the tussle between the LG and the AAP government.

INDIA LEGAL October 15, 2015

FOCUS/ British Police Officer/Gurpal Virdi

Never Say Never In a stunning case, an Indian-origin officer of the Met was hounded for challenging racism in his force and even slapped with a sexual assault case. The intrepid fighter finally has won all his battles handsomely By Sajeda Momin in London

N Indian-origin officer in the British police force has been acquitted of racially and sexually abusing a teenager 29 years ago, finally bringing an end to the legal battles the man and his family were subjected to for decades. When summing up the case, the judge at Southwark Crown Court in London suggested that there

was a strong possibility that a conspiracy had been hatched to tarnish Gurpal Virdi’s reputation, but that he was now being acquitted with his honor intact. Virdi had all along claimed that the Metropolitan Police, for which he worked for 30 years, had been hounding him for most of his career because he was one of the few Asian officers who dared to speak up against the inherent racist

IT’S MY RIGHT Gurpal Virdi has shown tremendous courage and perseverance in taking on the mighty Met

October 15, 2015

In the murder case of Stephen Lawrence (left), Virdi gave evidence of prevalent racism in the British police force. The result was, Virdi himself began to be targeted.

nature of Britain’s largest police force. Virdi, 56, was accused of beating a 16year-old boy in the back of a police van, calling him a nigger and sexually assaulting him with a police baton in 1986. The alleged victim, now 44, filed the case against Virdi in 2014, by which time Virdi had already retired as Detective Sergeant. Virdi was arrested last year when the alleged victim claimed that he was swung round by his handcuffs hitting every inside panel of the van, verbally abused by being called a “nigger” and then prodded in the bottom with a collapsible police truncheon. Virdi was then part of the crime squad in Battersea in South London and the incident is supposed to have happened outside the Old Bailey. It was this last allegation that actually cleared Virdi. The jury was told that while the incident was alleged to have taken place on November 7, 1986, the British police force first issued collapsible truncheons to their officers four years later in 1990. It took the jury only 50 minutes to acquit Virdi of all charges. COOKED UP CASES A visibly relieved Virdi said the case had been cooked up against him by the Metropolitan Police or the Met, as it is often called, and covers the whole of London and the Greater London area, because they wanted to tarnish his image even now. “It is disturbing that the Met Police is still campaigning and targeting me and my family year after year. This has to stop,” said Virdi. Criticizing what he called the combination of “conspiracy” and “incompetence”, Virdi said he was targeted as he was the only one who stood up and fought racism in the British Police Force. During the trial, Virdi accused the Met of bringing the criminal case against him as part of a 17-year-long campaign to “hound” him out of the force. “It was done to keep me quiet and then to make me look bad in the community, and people did avoid me. It was meant to destroy me,” explained Virdi, who lives in Hounslow in West London with his wife and two grownup children. Born in India, Virdi came to Britain as a young boy and grew up in Southall in West

London, a predominantly Punjabi area. His father had served with the Delhi police, but when Virdi joined the Metropolitan Police in 1982, his parents were unhappy with his decision. Very few men or women of immigrant communities joined the British police then, as it was considered a white force. Virdi says that even today there are only some dozen officers of Asian, African or mixedrace origin who have been recruited and managed to last 30 years in the police force. He had an unblemished career in uniform, CID and specialist squads until he

ALL-WHITE AFFAIR The Metropolitan Police doesn’t have much representation of Asian or African communities

INDIA LEGAL October 15, 2015

FOCUS/ British Police Officer/ Gurpal Virdi

was arrested in 1998. Ironically, Virdi was charged with sending racist hate mail to himself and other Asian and black colleagues at Ealing Police Station where he was posted, signing them from the racist National Front Organization.

Virdi came to Britain as a young boy and grew up in Southall in West London (below), a predominantly Punjabi area.

October 15, 2015

SLOPPY PROBE He and his wife had to face the harrowing experience of having their home searched for seven hours in the presence of their young children. The raid was authorized by then deputy commissioner, John Stevens, and came weeks after Virdi had threatened to go over the heads of his superiors regarding what he felt was a sloppy investigation of a racist, near-fatal stabbing of two boys—an Indian and an Iraqi—by five white males. Virdi had spoken up and pointed out the similarities with the “racist’’ investigation into the murder of a black teenager, Stephen Lawrence in 1993. The Stephen Lawrence murder and investigation has become a pivotal point in the history of British race relations. Virdi gave evidence in the Stephen Lawrence inquiry about racism within the police force, and he claims that ever since, the Met has been trying to discredit him. “My career finished in 1998,” said Virdi. “As soon as you raise your

When the Labor Party disowned him, Virdi contested as an independent in the local council elections and, true to his habit, emerged victorious.

head above the parapet, your career is finished, and everyone in the police service knows that. Most people keep silent because they know that even if you complain, the investigation won’t be done properly. That hasn’t changed even now,” he added. It took a year for the Crown Prosecution Service to decide there was insufficient evidence to prosecute him, not least because the racist mail continued while Virdi sat at home. Even so, Scotland Yard seemed determined to make an example of him and he was dismissed in March 2000 after a disciplinary panel found him guilty of sending the racist mail. HONOR RESTORED Later that year, an employment tribunal found that the Met’s investigation had racially discriminated against Virdi. It ruled that unlike his white colleagues, Virdi had been subjected to an entrapment operation, been formally interviewed, had his house searched, been arrested and suspended “without sufficient evidence to support the allegations”. He was awarded £1,50,000 as damages for the “high-handed” way the Yard had behaved and the way it had manipulated media coverage. He was also given another £90,000 as an out-of-court settlement for “injury to his feelings”. The Independent Advisory Group, which monitors the Met’s performance on race crime, described the investigation as “disgraceful” and “a high-profile character assassination”. In 2001, Virdi and his wife, Sathat, were assured by Commissioner Stevens that lessons had been learnt, sent a formal apology and reinstated into the Force. The officer, or officers, who were responsible for sending the racist hate mail have never been found and the criminal case remains unsolved.

In 2002, much against the wishes of his wife, Virdi went back to the Met. He was assured by Stevens that his career would not suffer as a result of a negative internal report claiming there was still “strong evidence” of his guilt. But his battle with the Force was far from over. CONSTANT HURDLES Encouraged by senior officers, in 2005, Virdi applied for promotion to detective inspector at a time when the Met had advertised that it had a shortage. He was endorsed by his line manager and it was agreed that he satisfied all the official criteria. But he was turned down by a review panel and his appeal rejected. Virdi went to the tribunal claiming victimization after being passed over for promotion and eventually, it ruled in his favor. In its judgment on liability, the tribunal ruled that Virdi’s promotion application was treated differently from that of someone who had not taken legal action against the force. It said the process was “shoddily operated” and noted that he was now unlikely to get another chance of promotion before he retires. Virdi was awarded £70,400 in compensation, bringing the total he had won

from the Force to more than £3,00,000. In the last five years of his career, Virdi just “pushed pen around paper” for the Met’s Sikh Association, in the redeployment pool waiting for a suitable post. “I am not the type of person to run away. I wanted to complete 30 years, and I’m glad that I’ve done it. I’ve enjoyed what I’ve done, but feel sad as I could have done so much more. I have been stopped from reaching my potential,” said Virdi on his retirement. However, this was not to be the end of his harassment. Post-retirement, Virdi took up a second career in politics and joined the Labor Party. Last year, he won the Labor nomination in the local council elections, standing in the Cranford ward of Hounslow. But right in the middle of the campaign, the latest “trumped up” case of violence and sexual abuse was filed. The Labor Party dropped him as their candidate in the election, Virdi contested as an independent. He won his seat on the council by 1,643 votes. Virdi, who has acquired quite a reputation for taking legal recourse to get justice, is very likely to seek compensation and damages for the latest attempts by the Met to frame him—and going by his track record he will probably win! IL INDIA LEGAL October 15, 2015

ENVIRONMENT/ Volkswagen Scandal

W “Carmic”

Emissions

The “notice of violation” to Volkswagen’s diesel cars in the US should serve as a wake-up call for India. It will have to address emission standards, testing systems and compliance norms followed here By Dinesh C Sharma 72

October 15, 2015

HEN pollution checking norms for cars and twowheelers were enforced more a decade ago, the center made it mandatory for every vehicle to carry “pollution under check” (PUC) certificate under the provisions of the Motor Vehicles Act. The process of issuing these certificates soon became a scam, with even polluting vehicles getting the PUC sticker. The emission measuring machines were not properly calibrated, certificates were issued manually and bribes were common. The situation improved with the introduction of computerized checking and the use of web cams to capture number plate images. Still the system is not foolproof. Now imagine a situation in which your latest car comes loaded with software that can hoodwink the emission checking machine and make it believe that emissions from your car are below the regulatory limit. This is what Volkswagen did with American regulators. On September 18, the US Environment

Protection Agency (EPA) issued a “notice of violation” under the Clean Air Act to Volkswagen AG, Audi AG and Volkswagen Group of America. The notice charged the group companies for including software that can circumvent EPA emission standards in their four-cylinder Volkswagen and Audi diesel cars from model years 2009-2015. DEFEAT DEVICE The software developed by Volkswagen has been dubbed as “defeat device” as defined by the Clean Air Act. “Using a defeat device in cars to evade clean air standards is illegal and a threat to public health,” said Cynthia Giles, assistant administrator for the Office of Enforcement and Compliance Assurance. The sophisticated software algorithm can detect when the car is undergoing official emissions testing, and turns full emissions controls on only during the test. It is embedded in the software code that runs the engine control computer. The effectiveness of these vehicles’ pollution emissions control devices is greatly reduced during all normal driving

A software installed in four-cylinder Volkswagen and Audi diesel cars can detect when the car is being subjected to emission test and turns on emission controls to meet the standards. situations. This means that cars that meet emission standards in testing labs actually emit air pollutants 40 times the regulatory limit during normal operation. EPA standards control the allowable emission levels of nitrogen oxides (NOx), hydrocarbons, carbon monoxide, carbon dioxide, particulate matter and certain toxic chemicals. The “defeat device” affects the way the NOx control system operates, resulting in higher NOx emission levels from these vehicles than from vehicles with properly operating emission controls. The violations cover about 482,000 diesel passenger cars sold in the United States since 2008, and affected models include Jetta, Jetta Sportwagen, Beetle, Beetle Convertible, Audi A3, Golf, Golf Sportwagen and Passat.

UNETHICAL PRACTICE Volkswagen cars have been accused of cheating American regulators

INDIA LEGAL October 15, 2015

ENVIRONMENT/ Volkswagen Scandal

rate, and today’s announcement shows why,” Drew Kodjak, ICCT’s Executive Director, said in a statement. While VW cars failed tests under different driving conditions, BMW car met emission norms. ICCT research studies in Europe too have found gaps between real world emissions and regulatory certification levels. RIPPLES WORLDWIDE The emission scandal has created ripples not just in the German car industry but among car makers and car markets globally. France, South Korea, the UK and Italy have ordered investigations. The Indian government too has reportedly asked the Pune-based Automotive Research Association of India to submit a report on emission levels of Volkswagen cars in India as the diesel car models found to be violating EPA norms are available in India too. However, it is to be noted that India’s

Anand Mahindra, Chandra Bhushan, CMD of Mahindra deputy director of Group, has assured Centre for Science and followers on Twitter that Environment (CSE), he will apply the says the Volkswagen strictest code of ethical scandal busts the myth practices throughout of clean diesel the globe. Car buyers vehicles, which CSE are anxious after the had exposed 15 years Volkswagen scandal. back in its report. The International Council on Clean Transportation (ICCT), which was involved in a research along with West Virginia University on three cars (VW Jetta, VW Passat, and BMW X5), helped detect the defeat device. The project was aimed to evaluate real-world operating emissions from light-duty diesel vehicles in the United States. “Clear protocols, in-use requirements for the useful life of vehicles, clear enforcement follow-through, the authority to fine and force recalls—these are ‘best practices’ that regulations worldwide should incorpo-

October 15, 2015

emission standards are much less stringent than those currently followed in America and Europe. “The fraud busts the myth of clean diesel vehicles. About 15 years back, we had come out with a report in which we said that diesel vehicles cannot be cleaned up beyond a certain level. And that then also the toxic emissions from the diesel vehicles would be very, very high. But the automobile industry still propagated this myth of clean diesel vehicles. Now the truth is coming out that they never cleaned up; they just cheated by putting a software that showed low emissions during tests,” pointed out Chandra Bhushan, deputy director of Centre for Science and Environment. “India is dieselizing very rapidly. More than half of cars sold today are diesel cars. We will have to stop these vehicles if we want to clean our air,” he added. “I can only promise you that we will apply the strictest code of ethical practices to our-

The Indian government has reportedly asked the Pune-based Automotive Research Association of India to submit a report on the emission levels of Volkswagen cars in India. selves throughout the globe,” Anand Mahindra, chairman and managing director of Mahindra Group assured his followers on Twitter who were anxious about Indian cars after Volkswagen scandal. Cars have been recalled for emission related issues in India in recent years. In 2013, General Motors had recalled 1.14 lakh units of its Tavera model manufactured between 2005 and 2013 for emission-related issues. The exact nature of the emission problem was not specified, but the company said the recall was not linked to any safety issue. It was speculated that the company had got type approval based on improved engines but the ones sold in the market were not fitted with the same engine. The Volkswagen scandal is a wake-up call for Indian authorities. They will have to set right emissions standards, testing systems and compliance norms in order to avoid similar scams. IL

DETECTING FRAUD (Above) Drew Kodjak, executive director, The International Council on Clean Transportation (Left) Volkswagen cars passing emission standards in tests actually emit air pollutants 40 times the regulatory limit

INDIA LEGAL October 15, 2015

DIPLOMACY/ Nepal’s Constitution

HERALDING A NEW EPOCH Nepalese President Ram Baran Yadav promulgates the constitution at the parliament in Kathmandu on September 20

FISSURES REOPEN The new constitution has alienated the Madhesis of Indian origin, leading to violent protests Photos: UNI

Playing Big Brother Not everyone is happy with Nepal’s new constitution, particularly the Madhesis of Indian origin settled in the plains. But rather than voice its displeasure, New Delhi should work quietly to bring about necessary amendments By Seema Guha 76

October 15, 2015

EPAL got a brand new constitution on September 20. It should have been a red letter day for the country, because at last, after seven long years of squabbling, the political leaders were able to put together the nation’s secular constitution. Yet, the constitution—brought about by the blood, sweat and tears of thousands of ordinary Nepalis—has ignited violent protests in the plains and threatens the unity of the new Republic. In short what should have been a

day to celebrate has turned into a major crisis. It is a time bomb which, if not handed carefully, could lead to convulsions across the length and breadth of the land locked nation. The constitution, which is surprisingly progressive on several counts, including full rights for gays, lesbians and transgenders, fails to address the core concerns of the people living in the Terai region. Madhesis are people settled in Nepal’s plains from the adjoining Indian state of Bihar. While they are loyal citizens of Nepal they also look to their country of origin in times of crisis. The representation of the Madhesis in Nepal’s Parliament will be drastically reduced by the new constitution. The main demand of the Madhesis is representation equal to their population and federal redistricting that maintains Madhesh—which would guarantee the group a bigger representation in parliament. Madhesis see the move to restrict their parliamentary numbers as an attempt to take away their political clout.

In the western Terai, the indigenous Tharus are unhappy at the prospect of being split in two and forced to share their provinces with hill districts that, they fear, will corner all the development funds and get the better of the Tharus. DIVISIVE POLITY The constitution was pushed through by the four main political parties, despite knowing that this was not acceptable to a large number of its citizens. The Nepali Congress, the Communist Party of Nepal Unified, Marxist Leninist (CPN-UML) and the Unified Communist Party of Nepal-Maoist refused to heed the advice of President Ram Baran Yadav, himself a man from the Terai region. He asked them to speak to all sections in the plains. As news of the constitution being forced through spread, violent protests shook the plains. The tough stand taken to quell the violent protests resulted in the death of at least 42 persons, among them policemen

Can India afford to antagonize Kathmandu and allow China to spread its wings further in Nepal? By sulking and over-reacting India is helping neither the Madhesis nor itself.

INDIA LEGAL October 15, 2015

DIPLOMACY/ Nepal’s Constitution

India’s reaction D

espite being one of the major backers of Nepal’s decade-long process to develop a federal constitution to heal the scars of its civil war, New Delhi has urged Nepalese leaders to delay adopting it, on the ground that the new constitution is not broad-based enough and expressing concern that it could spur violence which could spill over into its own territory bordering Nepal. Reports in the Indian media say that India’s ambassador in Kathmandu, Ranjit Rae, spoke to Prime Minister Sushil Koirala hours before the constitution ceremony to express Delhi's disappointment at the process going through. Government sources who spoke to the media in Delhi, confirmed that there were seven major amendments that New Delhi urged Kathmandu to adopt, in order to make the new constitution acceptable to the Madhesis and Janjatis.

EFFORT GONE WASTE? Prime Minister Narendra Modi’s Kathmandu visit in August had led to a new optimism in bilateral relations

who were lynched by the mob. The murderous assault on the police spread bad blood across the nation. The hope for a new beginning with a brand new peoples’ constitution, in the drafting of which neither the monarchy nor the Nepalese army had a say, was drowned in the anger and violence in the plains. Nearly 40 percent of Nepal’s population live in the Terai region and so a large section of the country is unhappy with the new arrangement. INDIA’s PIQUE India, which played a major role in getting the Maoists to the table for talks in 2006, is extremely unhappy with the turn of events. Prime Minister Narendra Modi had spoken to his Nepalese counterpart, Sushil Koirala, on ensuring that all sections in Nepal are

October 15, 2015

Article 84 of the new constitution omits allotting Madhesis electoral constituencies in proportion to its population. Under the previous interim constitution, Article 63 (3) provided electoral constituencies based on population, geography and special characteristics, and in the case of Madhesis on the basis of percentage of population.

Article 21 of the interim constitution stated that various groups would have “the right to participate in state structures on the basis of principles of proportional inclusion”. Article 42 of the new constitution dropped the word “proportional”; New Delhi wants it re-inserted.

Article 283 of the new consti-

tution states that only citizens by descent will be entitled to hold the posts of president, vice-president, prime minister, chief justice, speaker of parliament, chairperson of National Assembly, head of province, chief minister, speaker of provincial assembly and chief of security bodies. This clause is seen as discriminatory towards Madhesis who have acquired citizenship by birth or naturalization. New Delhi says this should be amended to include citizenship by birth or naturalization.

Article 86 of the new constitution states that the National Assembly will comprise eight members from each of the seven states and three nominated members. Madhesis want representation in National Assembly to be based on population of the provinces. New Delhi says this should be done to address concerns.

Based on the majority of the population, the five disputed districts of Kanchanpur, Kailali, Sunsari, Jhapa and Morang may be included in the neighboring Madhes provinces.

Article 154 of the interim constitution provided for delineation of electoral constituencies every 10 years. This has been increased to 20 years in Article 281 of the new constitution. India wants this restored to 10 years.

Article 11(6) of the new constitution states that a foreign woman married to a Nepali citizen may acquire naturalized citizenship of Nepal as provided for in a federal law. With New Delhi’s backing, Madhesi parties want acquisition of naturalized citizenship to be automatic on application.

consulted and given their due in the new Constitution. However, despite the excellent ties between New Delhi and Kathmandu, especially after Modi’s two highly successful visits to the neighbouring country, this sudden turnaround came as a shock. Having invested both time and energy to take relations with Nepal to a new plane, New Delhi is now making no bones about its irritation with Nepal’s top political leadership. In fact, before the constitution was finalised, India invited UCPN (Maoist) chairman and former prime minister, Pushpa Kamal Dahal, and his wife; CPN-UML leader Madhav Kumar Nepal; and Nepali Congress leaders, Sher Bahadur Deuba and Ram Chandra Poudel; to India in July when negotiations on the constitution were in the final stages. In Delhi they met India’s top officials and were advised to take the Madhesis and other groups into confidence before finalising the constitution. It is said that the political leaders assured New Delhi that all interests would be taken into consideration. In a recent visit to Kath-mandu, Indian foreign secretary Jai Shankar delivered the same message. TOUGH CHOICES New Delhi has issued two curt statements since the new constitution was unveiled. The first was on Sunday, September 20. Nepal’s other neighbour China warmly welcomed the constitution on the same day. China’s footprints are already spread across Nepal and in the past, whenever the monarchy wanted to needle New Delhi, it would invariably play the China card. Like every small nation sandwiched between two big powers, Nepal will continue to use China to score points against India. But can India afford to antagonize Kathmandu and allow China to spread its wings further in Nepal, is a question the government has to answer. By sulking and over-reacting India is helping neither the

Madhesis nor itself. New Delhi did not congratulate Kathmandu when the constitution was unveiled by an unsmiling and clearly troubled Nepal President Ram Baran Yadav. The MEA statement merely said: “Throughout the process of constitution making in Nepal, India has supported a federal, democratic, republican and inclusive constitution. We note the promulgation in Nepal today of a constitution. We are concerned that the situation in several parts of the country bordering India continues to be violent. Our ambassador in Kathmandu has spoken to the prime minister of Nepal in this regard. We urge that issues on which there are differences should be resolved through dialogue in an atmosphere free from violence and intimidation, and enable broad-based ownership and acceptance. This would lay the foundation of harmony, progress and development in Nepal.’’ India followed this up with another terse statement on September 21: “We are deeply concerned over the incidents of violence resulting in death and injury in regions of Nepal bordering India following the promulgation of constitution yesterday. Our freight companies and transporters have also

As a sovereign nation, Nepal has every right to go ahead with its own plans. But the Madhesis also need to get their due. Otherwise, the situation is likely to deteriorate further.

LONG-AWAITED MOMENT People cheer during celebrations a day after the first democratic constitution was announced in Kathmandu

INDIA LEGAL October 15, 2015

DIPLOMACY/ Nepal’s Constitution

Timeline Nepal 1950–1951 The Nepali Congress Party (NCP) formed through the merger of the Nepali National Congress and the Nepal Democratic Congress in Calcutta.

1955–1959 King Tribhuvan dies; succeeded by Mahendra. A multi-party constitution is adopted.

non-party system of councils known as “panchayat” under which the king exercises unilateral power.

1972–1980 1960–1963 King Mahendra seizes power and suspends parliament, after NCP wins elections with BP Koirala as premier. New constitution provides for

Nearly 40 percent of Nepal’s population lives in the Terai region and so a large section of the country is unhappy with the new arrangement.

October 15, 2015

King Mahendra dies, succeeded by Birendra. Constitutional referendum follows agitation for reform. King allows direct elections to national assembly, but on a non-party basis.

June 1, 2001

1985–1989

King Birendra, Queen Aishwarya and seven royal family members shot and killed by a drunken Crown Prince Dipendra, who then shoots himself.

NCP begins civil disobedience, campaigning for restoration of multi-party system.

1990–1992

Security forces repress street protests, resulting in deaths and mass arrests. Under pressure, Birendra agrees to a new democratic constitution. NCP wins first democratic elections. Girija Prasad Koirala becomes prime minister.

voiced complaints about the difficulties they are facing in movement within Nepal and their security concerns, due to the prevailing unrest. We had repeatedly cautioned the political leadership of Nepal to take urgent steps to defuse the tension in these regions. This, if done in a timely manner, could have avoided these serious developments. We have consistently argued that all sections of Nepal must reach a consensus on the political challenges confronting them.” “The issues facing Nepal are political in nature and cannot be resolved through force. We still hope that initiatives will be taken by Nepal’s leadership to effectively and credibly address the causes underlying the present state of confrontation,’’ it read. The mood in the government is anger at Nepal’s defiance. But as a sovereign nation, Nepal has every right to go ahead with its own plans. The problem however is that the Madhesis also need to get their due. Unless that happens, the situation is likely to deteriorate further. Once there is unrest, there will certainly be an exodus into the neighbouring Indian state of Bihar. The timing could not

1994–1995 No-confidence motion sinks Koirala government. Fresh elections lead to the formation and subsequent dissolution of Communist government.

have been worse for the Modi government, which has put all its energies into winning the state elections scheduled for next month. Some of India’s frustration at Nepal has to do with the Bihar elections. “India’s reaction has been unusually strong,’’ says analyst SD Muni, who has long followed events in Nepal. “There was no need for Delhi to come up with this kind of statement which naturally will not be well received in Kathmandu. Urging all sections to work together is fine, but we cannot be arrogant. Nepal is a sovereign nation after all,’’ he adds. India’s anger stems from the fact that Nepal’s usually docile leaders have snubbed the prime minister. There is irritation not just in the government circles but also among sections in the RSS which wanted Nepal to retain its character as a Hindu kingdom. Seventy percent of Nepal’s population is Hindu. This section is also pro-monarchy. India’s petulance will encourage this section, as well as the extreme Left wing cadres among the Maoists. None of this is good news for either India or Nepal.

political confronta- January 2007 tion over extending the state of emergency. Sher Bahadur Deuba heads interim government, renews emergency.

June 4, 2001 Prince Gyanendra crowned the king.

November 2001

October 2002 King Gyanendra dismisses Deuba and indefinitely puts off elections set for November.

Parliament approves abolition of monarchy as part of peace deal with Maoists, who agree to re-join government. Interim constitution comes into effect.

May 2008

Nepal becomes a republic. Gyanendra orders the army to crush July 2008 Maoist rebels. Ram Baran Yadav April 2006 Hundreds are becomes Nepal’s Gyanendra agrees killed in rebel and first president. to reinstate parliagovernment operament following tions in the follow August 2008 weeks of violent ing months. Maoist leader protests against Prachanda forms direct royal rule. coalition govern May 2002 Maoist rebels call Parliament disment, with Nepali a three-month solved, fresh elecCongress going ceasefire. tions called amid into opposition.

NEPAL’S DISPLEASURE Nepal is equally angry with India for what it perceives as New Delhi’s arrogance. “India is playing with fire. Instead of encouraging the Madhesis it should calm tempers and ensure that this problem is resolved amicably. It is not something that cannot be worked on and solved to the satisfaction of all,’’ says Kanak Mani Dixit, the editor in chief of the prestigious Himal Southasian magazine, published from Kathmandu. “New Delhi will be blamed if the situation takes an uglier turn,’’ he adds. Many Nepalis now realize what Sri Lankas felt about India’s interference in its ethnic problem. They say they can understand what the Sinhalese majority felt when India, for its domestic political considerations, championed the cause of the Sri Lankan Tamils. What the Nepalese forget was that Tamils were second class citizens in the island nation. Kanak Mani Dixit admits that there are many loose ends in the new constitution which have to be tied up. He says the people of the Terai have to be accommodated, but

Political deadlock, fails to reach a as no party wins a compromise with majority. Prime Minister opposition on new Prachanda resigns in constitution and February 2014 a row with President the fate of former Consensus reached Yadav. Maoists leave Maoist fighters. between the two government after Parliament elects major parties in the other parties oppose the Maoist party’s constituent assemintegration of former Baburam Bhattarai bly. Sushil Koirala rebel fighters into as prime minister. sworn in as PM. national army. May 2012 Communist leader February 2015 Prime Minister Madhav Kumar Police fire teargas Bhattarai dissolves named new prime and water cannons minister. He quits in parliament, calls at opposition supJune 2010. elections for porters protesting November after February 2011 plans for a parliapoliticians miss a Jhalnath Khanal mentary vote on a final deadline to elected PM, disputed new agree on a new ending a sevennational constitution. constitution. month void in governance. November 2013 September 20, Elections for an 2015 August 2011 assembly which Constitution of PM Jhalnath will write a new Nepal comes into Khanal resigns constitution. effect. after government

May 2009

violent protests is not the answer. “I am very happy that the making of the constitution is now complete after a wait of nearly eight years. It’s not optimal, drafted as it is by politicians. It’s filled with contradictions, in the sense that there are a profusion of promises,’’ says Dixit. Women's groups are unhappy with the new constitution as it discriminates against Nepalese women in what is already a patriarchal society. If a Nepali woman marries a foreigner, their children cannot become Nepali unless the man first takes citizenship, a process that could take around 15 years. But if a man marries a foreigner, the women can easily get Nepali citizenship and their children are Nepali regardless of the wife’s nationality. The Madhesis are also worried because many in the community marry from across the border in India. However, there is still time to amend the constitution and allay the fears of the plains people. And instead of publicly slamming Nepal, India should work quietly behind closed doors. Anger and frustration are not the right tools to be used in diplomacy. IL INDIA LEGAL October 15, 2015

PEOPLE / Maternal Instinct

TWO SIDES OF THE SAME An owl-faced monkey protects her month-old baby at the zoo in Antwerp.

FURRY BALLS OF WHITE Twin polar bear cubs, Nela and Nobby, and their mother Giovanna play outside their enclosure at Tierpark Hellabrunn zoo in Munich.

A QUESTION OF SIZE A hippopotamus with its calf at the Arignar Anna Zoological Park, Chennai. STRIP(E) TEASE White Bengal Tiger Clara and her three cubs play at Huachipa’s private zoo in Lima, Peru. CLAY MODELS A one-anda-half-month old baby elephant stands close to its mother at The National Park in Chitwan, south of Kathmandu. HUNGRY MOUTHS A swallow feeds her babies in Guizhou, China.

— Compiled by Kh Manglembi Devi Photos: UNI

October 15, 2015

RNI No. UPENG/2007/25763

Postal Regd. No. UP/GBD-197/2014-16 3ULQWHG RQ HYHU\ PRQWK 3RVWHG DW 6XE 3RVW 2IÃ&#x20AC;FH 6HFWRU 1RLGD

COMING SOON ON TATA SKY