Interpretation of Sedition
Chhota Rajan: Political Minefield
NDIA EGAL I L JUSTICE N CHAPALGAONKER
AJITH PILLAI
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November 30, 2015
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STORIES THAT COUNT
BIHAR ELECTIONS
Moditva’s Diminishing Returns In an aspiring India, old tactics of divisive politics will not work 08 Lessons for Modi and Nitish By Kalyani Shankar
Modi’s Freakonomics By Ajith Pillai
Pracharak or PM? By Inderjit Badhwar
VIPIN PUBBY: Identity crisis hits meat 40
BIKRAM VOHRA: Air travails of the disabled 64
RK MISRA: Wanting a Womb 26
R RAMASUBRAMANIAN: Bad blood in Madras HC 42
NOVEMBER 30, 2015
VOLUME. IX
ISSUE. 06
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
Biting Bihar’s dust
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The BJP failed to catch the electorate’s pulse and lost the crucial Bihar assembly elections. KALYANI SHANKAR analyzes the factors that led to the stupendous success of the mega alliance. Also, AJITH PILLAI explains why ignoring the rural masses and wooing corporate India will prove costly
CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari
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November 30, 2015
SUPREME COURT
Way forward After sounding the death knell for NJAC, the Supreme Court has shown willingness to change the collegium system to make it more transparent, writes VENKATASUBRAMANIAN
Something to crib about The recent apex court ban on foreigners hiring Indian surrogates will put an end to an entire industry and hit the poor hard. The way out is to have tighter regulations, reports RK MISRA from Anand COURTS
Who’ll foot the bill? A Himachal Pradesh High Court order bans cow slaughter and consumption of beef in the state. But is the upkeep of old cows financially viable, asks AJITH PILLAI
22 26 36
Meat Masala Even as beef is banned in some states, courts are grappling with the color and texture of different kinds of meat. VIPIN PUBBY reports
On your guard
AVIATION
40
Flight of despair
Airlines have often humiliated those with disabilities despite clear guidelines on accessibility issues. BIKRAM VOHRA expresses dismay at their insensitivity
42
Madras High Court has been hit by many controversies, but the final straw was calling in central security forces there, R RAMASUBRAMANIAN reports
Out with the old
49
With Maharashtra recently expanding the scope of sedition, JUSTICE NARENDRA CHAPALGAONKER says it is high time freedom of thought and expression was protected by law CRIME
Will he spill the beans?
52
Chhota Rajan’s arrest has unsettled many politicians and police personnel for the information he might divulge. AJITH PILLAI delves into the possible fallouts of his disclosures INTERVIEW
“I’ve led two lives” Historian Romila Thapar tells MURALI KRISHNAN that it has been her mission to write sensible, rational history, and to counter those elements who keep on saying the most absurd things about India’s past FOCUS
Brain mystery
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A new technology in forensics will help cops bring criminals to book through brain fingerprinting. KAUSHIK JOSHI on its implications for criminal justice
GLOBAL TRENDS
No more Little Emperors
70
Though China has ended the one-child norm to help solve the problems of a rapidly ageing population, are parents willing to have a second child? SHASTRI RAMACHANDARAN reports HEALTH
Sweet Success
76
A new medical breakthrough could give diabetics a biological cure as islet cells are transplanted into the body to mimic one’s own pancreas, writes SHOBHA JOHN
REGULARS
LEGAL EYE
64
Quote-Unquote...........................................................6 Ringside......................................................................7 Edit.............................................................................8 National Briefs.......................................................11, 48 Supreme Court............................................................33 Courts......................................................................... 45 International Briefs.......................................................69 Campus Update..........................................................79 Figure It Out.................................................................80 Worldly Wise...........................................................81 People......................................................................... 82 Cover Design: ANTHONY LAWRENCE
INDIA LEGAL November 30, 2015
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QUOTE-UNQUOTE
“I will take our lantern (RJD election symbol) and move around everywhere in the country and will see what work has happened in villages adopted by BJP leaders.” —Lalu Prasad Yadav, after the Bihar victory, in The Times of India
“Prime Minister is not a section officer of the homoeopathy department. He is not head of a department. He is the Prime Minister. He has to show the country the moral path. He has to set moral standards.” —Former union minister Arun Shourie, reacting to BJP’s position that Modi cannot respond to every issue, in India Today TV
“Shah Rukh Khan should remember that if a huge mass in society would boycott his films, he will also have to wander on streets like a normal Muslim....I am saying these people are speaking in a terrorist’s language. I think there is no difference between the language of Shah Rukh Khan and Hafiz Saeed.” —Yogi Adityanath, BJP MP from Gorakhpur, reacting to Shah Rukh Khan’s comment that there is growing intolerance, in The Hindu
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“We are aware of the gigantic problem we have on hand with 3 crore cases pending in the three-tier justice delivery system. But the public is not informed that judges are working really hard to constantly chip at the pendency. Judges are never given credit for attaining a Herculean disposal rate of 2 crore cases every year.” —Justice TS Thakur, Chief Justice of India-designate, in The Times of India
“Whichever system of appointments we follow, it must operate on well-established and transparent principles to select the best. No one can meddle in the process. An autonomous judiciary is a vital feature of democracy. Yet, being an important pillar of democracy, it must reinvent itself through introspection and self-correction, as and when necessary.” —President Pranab Mukherjee, on judicial appointments, at the Golden Jubilee celebrations of the Delhi High Court
“Don’t think `80,000 crore is the limit. This is just a beginning. The treasury of Delhi is open for you, not only the treasury but also our hearts are open for you.” —Narendra Modi addressing a rally in Kashmir
“I pity those who become judge at a young age, especially if he has 20 years or so as a judge. It is a tough and high pressure job which leads to a burnout situation.” —Justice JS Khehar telling advocates not to accept offers of judgeship at a young age, in The Times of India
Aruna
VERDICT Nothing is beautiful, only man: on this piece of naivete rests all aesthetics, it is the first truth of aesthetics. Let us immediately add its second: nothing is ugly but degenerate man—the domain of aesthetic judgment is therewith defined. Friedrich Nietzsche
INDIA LEGAL November 30, 2015
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LETTER FROM THE EDITOR
INDERJIT BADHWAR
PRACHARAK VS PRIME MINISTER
E
VEN though Finance Minister Arun Jaitley, a courtly, conscientious and erudite spokesman for his beliefs and his party, may have used the phrase “tyranny of the unelected” to characterize the Supreme Court decision on the NJAC, I doubt very much whether he would repeat this line to portray the judgment of the electorate of Bihar which gave the BJP the drubbing of its life during the recent polls. Personally, I was saddened that the BJP had come to this sorry pass because it had millions of well-wishers who were urging mid-course corrections to prevent Prime Minister Modi and his team from biting the dust barely two years after having made a resplendent start. No right-thinking Indian would want his prime minister to fail. Sure, Modi carried heaps of negative baggage with him and reams of material have been written on his role or lack of it in the 2002 Gujarat massacres and pogroms. Yet, the Modi that emerged from the political posters of the last general election exuded an aura of dynamic change. Here, they all said, was a man who brought a message of hope and positivity so sorely lacking in the tired and tiring vicissitudes of India’s politics-as-usual. Acchey din had a nice Obama-esque yes-we-can lilt and ring to it. The refrain had a refreshing quality compared to Garibi Hatao, Jai Jawan Jai Kisan, Panchayati Raj Chalao and India Shining. And coming from a man whose vibrant Gujarat slogan had a feel of verisimilitude as tale after tale was told about booming Surat, bustling Ahmedabad, soaring Vadodara and
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highways to match an autobahn, the “Modi Magic” did not seem like a mirage but an opportunity of a miraculous transformation. He represented change. His spin doctors projected him as a miracle man. Throughout the general elections, it appeared that the Rath Yatra party had been truly transformed into a Vikas Yatra party. The fight within Modi’s own heart between being a Hindu Hriday Purush (his natural inclination as a former diehard RSS pracharak) or a Sab Ka Saath Sabka Vikas Purush had been won by the latter personality. State after state fell under his sway as he became the BJP’s sole campaigner, master of ceremonies and maximum leader. Not Deendayal Upadhyaya, nor even the revered Atal Bihari Vajpayee had either commanded or demanded the allegiance, fealty and performon-command obeisance from colleagues and officials, as did Modi. His national campaign had struck a positive chord among people who abhorred the RSS ideology, among youth, investors and young entrepreneurs, because they perceived him as different. He seemed to effervesce with the aura of a new, young, aspirational India. His speeches, during those days, could have been written by any secular guru. His campaign in Banaras was focused on development, the battle against filth and garbage, an end to babudom and corruption, cleaning up the Ganga, empowering the girl child. Who could argue against that when his opponents were talking about caste combinations and vote banks? India voted then for Modi and not the BJP as a
Photos:UNI
party. He had somehow given the impression that he had sidelined the RSS and relegated it back to its role as a cultural organization, silenced Ashok Singhal, Togadia and the VHP. In the national election, Modi triumphed against caste and sectarian politics. In the Bihar election, caste triumphed over Modi. Why? Precisely because India had changed. The Modi who had seemed to recognize this during the national campaign appeared to have forgotten this in the events leading up to Bihar. Advani’s Rath Yatra I’m-a-proudHindu was no longer a relevant political doctrine. The new doctrine, uttered so vociferously by Indians settled abroad where Modi traveled frequently to contact the diaspora was I-am-a-proud techie-I-am-a-prouddoctor-proud-economist. The new India which Modi was heading echoes these sentiments. Did Modi forget them or simply choose to ignore them back on Indian soil because his Hindu-Hriday-Purush face triumphed over the other Modi?
atheists, and not even Manu or the Shankaracharayas, has managed to regiment the nation or make it goose step to the drumsticks of a single drummer. Take away Modi’s national agenda of change and economic progress from his program and what do you have? Just another regional leader with a “vibrant” Gujarat slogan coming under increasing questioning about the veracity of its claims. We all know Rome wasn’t built in a day. And nobody expected Modi to wield a magic wand and transform India’s economy. But the gap between the government’s rosy economic statistics and the ground reality of inflation and slide in rural consumption, as Ajith Pillai’s accompanying story, NaMo’s Freakanomics, points out, was so huge that it put a question mark on Modi’s credibility. Had he abandoned that vision of hope and modernity? Was he a captive of the RSS? God forbid, were we heading for communal conflicts which leave all trade and commerce paralyzed—a fear deeply ingrained in the hearts of India’s small shopkeepers and businessmen who are the BJP’s core urban supporters? Modi’s silence indicated either total confusion
MISSING THE MOOD (Left) Nitish Kumar and Lalu Yadav celebrating their victory in Bihar (Below) Narendra Modi, during his 2014 election campaign in Banaras, focussed on development
T
he “change” that actually began occurring in India was what appeared to be an attack on the eating, sleeping, religious, sartorial, reading, thinking, educational artistic habits and inclination of this resplendent, diverse nation. It was unrelenting to the point of the murder of cultural dissidents. Some wags exaggerated—but may not have been far from the truth—that India may be heading towards a “cultural revolution” as in Mao’s China. But India, thank god, answers to many gods, even to the gods of INDIA LEGAL November 30, 2015
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LETTER FROM THE EDITOR
MANDATE AGAINST HATRED (Right) The BJP lost the 2004 elections largely on account of the Gujarat riots (Below) Modi should grow out of his pracharak persona
or the ascendancy of those forces within his party who had ridden the Modi development plank in order to gain prominence and then push their own divisive and pernicious agendas. Or did Modi believe that having achieved a majority at the center through his modernist development agenda, he could switch tactics in midstream and gain control over the rest of India by playing the intolerant card? That Modi was not being prime-ministerial was also evident in the way his government refused to let the elected government of Delhi function. Hundreds of thousands of Biharis work in the capital and their
slum dwellings are the worst affected by lack of basic amenities. They campaigned furiously themselves as well as with their relatives in Bihar, painting Modi as a vindictive regional politician misusing the central government to punish a popular Delhi chief minister who had handed Modi his first defeat. The paralyzing of the Delhi government was a big argument in the hands of opponents who proclaimed that Modi was more interested in power rather than the good governance he had promised.
I
do not believe Modi expected the opposition from intellectuals as well as his supporters and allies abroad to be so fierce, so effective. As a writer pointed out, Modi’s image had been transformed from Prime Minister to Pracharak Minister. And in Bihar, the pracharak met his Waterloo. India had changed. Many of the same forces who had ignored caste and united behind Modi who represented change and modernity, now used caste as a battering ram to defeat the man and the party who seemed to have forgotten the dreams and aspirations of the new Indians. And for the third time, they voted in Nitish Kumar, a man with a clean image, proving that good governance does matter and anti-incumbency does not outweigh good governance. In this case—I agree the honeymoon was short – the anti-incumbency worked against Modi. This is by no means Modi’s political epitaph. This is the end of Part I. He is a tough fighter. What matters is whether in Part II he will learn from the previous chapter. And will the real Modi please stand up?
editor@indialegalonline.com
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November 30, 2015
NATIONAL BRIEFS
Bollywood to participate in legal awareness ational Legal Services Authority (NALSA), a statutory body set up in 1987, provides free legal services to the weaker sections of society. It plans to rope in Bollywood actors to make the poor and illiterate aware about their rights. TS Thakur, Chief Justice of India designate and executive chairman of
N
Uphaar victims seek review he CBI and Association of Victims of Uphaar Tragedy (AVUT) moved petitions in the Supreme Court on November 6, seeking review of its verdict in the Uphaar tragedy of 1997 in which 59 people died of asphyxiation. The Ansal brothers were convicted by the Supreme Court on August 19, 2015, and sentenced to two years’ rigorous imprisonment if they failed to pay `30 crore each within three months. The CBI review plea cited paucity of time due to which the prosecution could not adequately put across the reasons why the court should not substitute a monetary fine with a jail sentence.
T
NALSA, said that using the audio-visual medium is a step towards reaching out to the maximum number of people. Renowned filmmakers Prakash Jha and Ramesh Sippy have agreed to work pro-bono, and plans are afoot to approach Amitabh Bachchan, Gulzar and Javed Akhtar.
Swamy faces flak for “hate speeches” he center has reportedly justified before the Supreme Court the need for a law to punish people making hate speeches and has supported the prosecution of BJP functionary Subramanian Swamy. The leader is facing criminal proceedings in Delhi, Mumbai, Assam, Mohali and Kerala for his views on terrorism which were termed as “hate speeches” under IPC provisions, The Times of India reported. Swamy challenged the IPC sections regarding hate speeches on
T
the ground that they violated the right to free speech and expression and prevented people from fearlessly articulating their views. The Home Ministry justified the criminal proceeding against Swamy and dismissed his plea.
Delhi govt moves to cut red-tape n an effort to cut red-tape and enable swift delivery of public services, the Delhi government on November 3 decided to abolish 200 types of affidavits with effect from December 1, 2015. In a cabinet meeting chaired by Chief Minister Arvind Kejriwal, the government retained only 40 types of affidavits which are mandatory according to laws passed by the parliament or Delhi assembly, said Deputy Chief Minister Manish Sisodia. Some of the documents to be made redundant include affidavits required for the issue of ration cards, change in residential address in ration cards, issue of learner’s and permanent driver’s licenses, certificates for registration of vehicles, etc.
I Sanskriti School quota he Delhi High Court on November 6 struck down the nearly two-decades-old system of reservations for children of bureaucrats in Sanskriti School. A bench comprising Justices Pradeep Nandrajog and Mukta Gupta compared the 60 percent quota for wards of Group-A central service officers to racial segregation of the students in the US in the 1960s. The bench stated: “(It) creates a limited notion of diversity and merely separates Group-A Union government officers from an otherwise similar category of students.” It directed the center to immediately implement the verdict or convert the school into a Kendriya Vidyalaya if the school is to be maintained as a preserve for children of government employees.
T
INDIA LEGAL November 30, 2015
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LEAD/ Bihar Polls
The Voter is
KING
There are lessons to be gleaned from Bihar’s stupendous poll results for the Modi-Amit Shah duo as they face elections in other states. At the same time, how will Nitish handle a strong ally like Lalu? By Kalyani Shankar
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LOSING GROUND? (Right) Amit Shah’s poll strategy for Bihar assembly polls failed miserably
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HE Bihar election results have shown once again that the ultimate power rests with the voter against the might of money and muscle power. The voter has showed his power whenever politicians erred earlier too. This happened after the Emergency when the Janata government did not perform, when Rajiv Gandhi failed to make use of his mandate, when the Congress was involved in corruption and when the BJP thought India was shining when it was not. So, the power of the voter and his capacity not to be misread is there. This is more so in the case of Bihar where voters are highly conscious of political nuances. It is indeed a tribute to Biharis that they have also made it clear that India believes in pluralism. The major political message from Bihar is that the honeymoon with Modi is over. The Bihar defeat, coming almost nine months after the BJP rout in the Delhi assembly polls, has shown that the Modi magic is on the wane. No doubt it was a fight between Modi and two other excellent communicators, Nitish Kumar and Lalu Prasad Yadav. In this one-against-two fight, Modi lost, proving that the BJP is on a decline and not on the ascendency. The BJP is at the crossroads and
there is a need to decide whether to go the Hindutva way or go for development. MANY LESSONS Bihar has conveyed several other lessons. The first is that the Grand Alliance got the arithmetic right, while the BJP was depending on chemistry. They even got their caste arithmetic right. It was the BJP versus the rest and the rest won the day. The three major alliance partners—the JD(U), the RJD
Photos:UNI
While the Grand Alliance has stood the test of time, there is the danger of Lalu pulling out of it. Will Nitish be able to choose his ministers freely? Will Lalu interfere in transfers and postings? and the Congress—managed to transfer each other’s votes so that the combine could win a two-thirds’ majority. NDA partners like Pappu Yadav, Ram Vilas Paswan, Jitin Ram Manjhi and Upendra Kushwaha were not able to perform well. The BJP’s pipedream that it would go on expanding its base while others would disappear did not work. The second is that people preferred the Bihar model and not the Gujarat one. Bihar chief minister Nitish Kumar did not face any anti-incumbency and on the contrary, he
TIME TO DELIVER (Above) Nitish Kumar and Lalu Prasad will have to justify the huge mandate (Left) The Modi charisma could not deliver in Bihar
INDIA LEGAL November 30, 2015
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LEAD/ Bihar Polls
GATHERING STEAM (Top) The Bihar results have given Congress a new lease of life (Above) The assembly results will rally anti-BJP parties, like AAP, together against the BJP-led NDA
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won due to his work. Apart from the caste combination, Nitish has carefully nurtured a constituency—women. He earned it by providing 50 percent reservation for women in panchayats and providing cycles to girls and through positive discrimination. This created a huge impact among women. From 2005, he also nurtured the lower backward castes, Dalits and aspirational youth. In short, Brand Modi failed while Brand Nitish won. Modi should analyze the results and wonder why he lost. Was it due to his arrogance? Was it due to his wrong alliance? Or was it because he had not learnt any lesson from the Delhi assembly polls?
The third message is that a negative and vicious campaign does not work. On the contrary, it went against the BJP. The BJP campaign, particularly after the second phase, was of a low level and hit the Grand Alliance below the belt. Also, the old style door-todoor campaign of Nitish worked better than Modi’s helicopter campaign. The BJP shifted poll issues midway from development to Hindutva, creating confusion in the minds of voters. Some issues like reservation, beef and meat ban, silence about intolerance, communalism and irresponsible statements from BJP leaders also had a negative impact. People would like Bihar to move on and talk about development, jobs and progress. The fourth is Modi and Amit Shah’s poll strategy did not work. Over-projection of Modi and Amit Shah and not projecting a chief ministerial candidate were mistakes on the part of the BJP. Nobody can accuse them of not working hard. They put in a lot of money and energy but what was lacking was the involvement of the entire Bihar unit at one level and the national unit at another level. Several important leaders were not utilized for the Bihar campaign as the ModiShah duo thought that they could swing the vote by Modi’s sheer magic. The fifth message is that the Grand Old Party, the Congress, is not completely irrelevant in Bihar. After all, 27 of its MLAs won. The strike rate is huge, as the party has won seven times its present strength in the assembly. Whether it is because of the Grand Alliance or because the party had revived is yet to be seen, but it has given a boost to the Congress. So is this beginning of the revival of the Congress? Does the Bihar experience mean that it will piggyback ride on coalition partners in the states too? NITISH’S RESPONSIBILITY The post-poll scenario is quite interesting. Now that the Grand Alliance has won, the massive mandate comes with huge responsibilities. Just like Delhi chief minister Arvind Kejriwal is struggling to meet huge expectations from Delhi voters, so too Nitish Kumar has a big responsibility of governance and development of Bihar. For this, he needs the help of the center but will Modi help him?
Brand Modi failed while Brand Nitish won. Did Modi lose due to his arrogance? Was it due to his wrong alliance? Or was it because he had not learnt any lesson from the Delhi assembly polls?
Will he deliver the `1.25 lakh crore package he had promised during the campaign? Secondly, the alliance has to stand the test of time. There is always the danger of Lalu pulling out of the coalition. Moreover, will Nitish have a free hand to choose his ministers? Will Lalu interfere in the administration of Bihar in transfers and postings? Right now, they are lost in the clouds, but will they remain together for long? There are no straight answers as only time will tell. There have been apprehensions about ego clashes between Lalu and Nitish and Lalu and Rahul Gandhi. If they break up on some issue before the Lok Sabha polls, that will be the end of their unity. Thirdly, Lalu has indicated that Nitish would remain in Patna while he will go around the country launching a campaign against the BJP. This means that he will don the role of a national leader. This is in the context of media speculation whether Nitish would be the challenger to Modi in the next Lok Sabha polls. Lalu has supported Nitish as chief minister, but will he support him as prime ministerial candidate? Moreover, the massive victory has once again led to speculation of the Janata Parivar coming together and the merger of the RJD and the JD (U). If this happens, it could pose a challenge to the BJP in the coming elections. As for the BJP, it is a wake-up call for Modi and Amit Shah. The Bihar defeat could
have a domino effect on the five state assembly polls scheduled next year. Kerala, Assam, West Bengal, Tamil Nadu and Puduchery do not have a strong presence of the BJP and the party has to face strong regional parties. Will Modi make some mid-course corrections both in the party and the government? That brings us to the question whether BJP chief Amit Shah will be sacked or rewarded with another term. There is a lot of discontent among party leaders that they have been ignored. Will this be corrected? As of now, the criticism of the Modi-Shah duo is loud and clear. It will gain a few decibels if there is another defeat.
SON OF THE SOIL (Top) Nitish got the benefit of the “Bihar model” over the “Gujarat model” (Above) Providing cycles to girls was one of the sops that got Nitish the women vote
INDIA LEGAL November 30, 2015
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LEAD/ Bihar Polls
POOR SHOW (Clockwise from above) NDA partners like Pappu Yadav, Jitin Ram Manjhi, Ram Vilas Paswan and Upendra Kushwaha failed to impress
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November 30, 2015
SPEED UP ECONOMY Modi’s first priority should be the economy and speeding up the reform process. International credit rating agency Moody’s has warned the prime minister that he may lose his credibility internationally now that Bihar is lost. This credibility has to be restored. Where possible, some measures could be pushed through administrative orders. But getting them through parliament may be a problem now with the weakening of the BJP, as the belligerent opposition led by the Congress will stall business in the Winter Session. Modi should also make sure that the floor management is better and reach out to the opposition. A little humility on his part would go a long way. Another important thing is to assess the performance of his cabinet and throw out non-performers and induct talent, even from outside if necessary. There is criticism that all decisions are centralized at the PMO; Modi should decentralize decision-making and take action against those ministers who had made controversial statements during the Bihar polls. He has announced many schemes like Make in India, Swachh Bharat and Skill India, but these need better monitoring. It is time Modi concentrates on delivering his 2014 electoral promises. It has been 18 months and nothing much is seen on the ground. People do not want speeches but results. Bihar should teach him this lesson. IL
ONLY THE STORIES THAT COUNT EVERY FORTNIGHT INDIA LEGAL WILL BRING YOU NEWS, ANALYSES AND OPINION FROM THE SHARPEST INVESTIGATIVE REPORTERS AND MOST INCISIVE LEGAL MINDS IN THE NATION ON MATTERS THAT MATTER TO YOU Liberated sex workers turn into paralegal volunteers
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LEAD/ Modi/Economic Reforms
NAMO’s Freakonomics
Rural India has been off the policy radar since the NDA came to power. Will this change in the aftermath of the Bihar verdict? Or will inclusive growth remain just a politically convenient slogan? By Ajith Pillai
LOOKING FOR GENUINE GROWTH Members of the All India Coordination Committee of Farmers Movement (AICCFM) at a dharna protesting the NDA's anti-farmer policies in New Delhi
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November 30, 2015
“What is the aim of reform? Is it just to increase the measured rate of GDP growth? Or is it to bring about a transformation in society? My answer is clear. We must reform to transform. Reform for whom? Who is the target audience? Is our aim to impress groups of experts and score points in intellectual discussions? Or to achieve ranks in some international league table? Again, my answer is clear. Reform is that which helps all citizens, and especially the poor, achieve a better life. It is Sabka Saath, Sabka Vikas.” —Prime Minister Narendra Modi at the Delhi Economics Conclave, November 6, 2015
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Photos:UNI
WO days before the results of the Bihar assembly elections left the government shell-shocked, the prime minister spoke a truism that we all know—if growth is not inclusive, it is no growth at all. In fact, in what can best be described as a politically correct speech, Narendra Modi spoke of safety nets through social security schemes, he waxed eloquent about empowering the poor and stressed the need to take economic reforms to the villages. He concluded by saying that “the goal of reforms is not better headlines in the pink papers, but better lives for our people”. Well said, you would say. But three days after the PM’s reassuring speech comes the news that the government has put a ceiling of 60 percent on central funding to 17 social welfare programs, including the Sarva Shiksha Abhiyan and the Mid-Day Meal Scheme. This move is likely to adversely hit and limit these schemes. It comes against the backdrop of 50 percent cuts announced in
A GOOD BEGINNING (Above) Prime Minister Narendra Modi arrives at the “Invest Madhya Pradesh - Global Investors Summit 2014” in Indore
INDIA LEGAL November 30, 2015
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LEAD/ Modi/Economic Reforms
GROUND REALITIES (Top right to bottom) A BJP poster promising Sabka Saath, Sabka Vikas; the Mid-Day meal scheme for school childern and the agriculture sector has seen budgetary cuts; a parched farm land
this year’s budget to 15 central agricultural schemes such as the Rashtriya Krishi Vikas Yojana and the National Mission for Sustainable Agriculture. Remember, funds were also slashed by `9,278 crore for programs under the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA). DIFFERENT VOICES Therein lies the rub. Modi promises several things from the public platform, while his government delivers differently on every count. It seems to be working on a different plane and on an agenda that is far removed from the one articulated by the PM. That is Freakonomics for you, Modi style. While the PM says he is not chasing GDP highs or kudos from the pink papers, his finance ministry seems to be wallowing in praise from the press and gloats about the high (often suspect) rankings given to India by international rating agencies. While Modi speaks of taking “vikas” to the villages, his government sees the farmer as a subsidy guzzling creature who does not require any further policy indulgence. In fact, rural development is, for all practical purposes, a politically profitable promise during poll time. Vikas or development is a much-abused term. It is a refrain that one hears whenever politicians speak. But who is this vikas for? Is it as inclusive as the PM claims it is? The state of the rural economy certainly does not reflect this. Five states—Madhya Pradesh, Maharashtra, Karnataka, Andhra Pradesh and Odisha—have been hit by drought. Sowing for the rabi season has also been affected. Food inflation—particularly the prices of pulses—has severely strained family budgets in urban and rural India. Spending power has thus been hit, which in turn, has impacted the overall economy.
If rural India does not shine, the sheen wears away from the larger economy. That’s because a sizeable population resides in “Bharat” and not urban India. 20
November 30, 2015
NO GROWTH Scan the reportage in economic papers in recent months and a rather grim picture emerges. Tractor sales have reportedly fallen by as much as 20 percent in the first six months of the year. The demand for motorcycles is down by four percent during AprilOctober. In the quarter ending September,
sales of consumer goods (read toothpaste, soaps, shampoo, creams, etc) fell despite manufacturers slashing prices to generate demand. Some economists partly attribute this depressed buying power to budgetary cuts in rural employment schemes in a drought year. The truth is simply this—if rural India does not shine, the sheen wears away from the larger economy. That’s because a sizeable section of our population resides in “Bharat” and not in urban India. We must also remember that 52 percent of our population is directly or indirectly involved in farming which is its livelihood. So, unless reforms touch the hinterland, overall economy cannot grow. No one is advocating throwing mindless sops at farmers. But they must be given support and succour in a crisis. The second National Convention of Farmers’ Organizations was held in Bangalore on November 2-4. It was an event that found scant mention in the media. But agriculture trade analyst Devinder Sharma reported in his blog about the outrage expressed at the “continuous neglect of the farming community” and how it had become the “victim of growth economics”. Indeed, the budgetary allocation to the farm sector has seen a 20 percent cut since the NDA came to power in 2014. Enough has been said about skyrocketing prices. There seems to be a mismatch between the government’s all-is-well projections and the realities on the ground. Price rise is not just an urban phenomenon but one which has had its reverberations in rural India, which in turn, has led to depressed spending on FMCG products and luxuries. WHAT VIKAS? Rural India seems to be the last thing on the minds of those framing policy. For example, this year’s budget saw allocation for the panchayati raj ministry being drastically cut. Last year `7,000 crore was earmarked. This year it was reduced to `95 crore! Similarly, women and child development which has a large rural focus was given 51 percent reduced funding. Health was given 15.7 percent less. Such cuts could only be interpreted
as less priority for programs that are meant to touch the lives of the larger populace. So where is the “sabka vikas” that the PM and the BJP keep harping upon? If truth be told, rural India has been ignored. This is perhaps one among several reasons for the voters of Bihar rejecting Narendra Modi and the NDA. As Devinder Sharma puts it: “The trickle-down theory of development has failed all over the globe; propping up the rich class, including the corporate, and then thinking the benefits will trickle down to the poor has failed. The answer lies in what Narendra Modi rightly said the other day—to make an effort to benefit directly the bottom of the pyramid. This will require a substantial change in economic thinking to turn it pro-people, pro-environment and pro-women. The Bihar election results will hopefully help make the requisite corrections in economic reforms. The sooner it is done the better it would be.” It certainly is the prime minister’s call. It remains to be seen if he takes inspiration from his own speeches, has a second look at reforms and tweaks its meaning, particularly when it comes to governance. IL
DEVELOPMENT MATTERS (From top) Women & child welfare are sectors that need government’s support; patients at a rural clinic
INDIA LEGAL November 30, 2015
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SUPREME COURT/ Collegium Reforms
Collegium Makeover? The apex court has been swamped by diverse opinions to reform its collegium system. Fresh guidelines are expected by the time TS Thakur takes over as the chief justice of India By Venkatasubramanian PIVOTAL ROLE (Above) CJI-designate Justice TS Thakur will have to take a call on Collegium reforms
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November 30, 2015
A
S the Supreme Court’s Constitution Bench began to hear proposals on November 3 on reforming its collegium system to recruit prospective judges of the higher judiciary, it raised huge expectations from civil society. Reformation of the collegium system was promised by it on October 16 while quashing the National Judicial Appointments Commission (NJAC). The Collegium, created by the apex court in the Second Judges case in 1993, has been under attack, among other things, for lack of transparency about its deliberations and refusal to entertain complaints about the proposed appointees. But the Bench found the diversity and volume of the proposals too daunting to arrive at an easy conclusion. Initially, the Bench believed that by eliciting the views of the senior counsel who challenged the validity of NJAC, and those who defended it, it could identify certain common areas of agreement,
and lay down guidelines so as to address the oft-repeated concerns about the working of the collegium. But the demand from the Bar for hearing more voices, even outside the courtroom, convinced the Bench that it needs to broadbase the consultation exercise. OPEN MIND The court had never undertaken a consequential hearing earlier after the delivery of the judgment in the main case. A consequential hearing means that judgment in the case is incomplete unless the court comes to a conclusion with regard to the issues it framed for itself. Therefore, with a vacuum in the appointment process and the rising number of vacancies in high courts and the Supreme Court staring in its face, the Bench had to complete this exercise at the earliest. The Bench, fortunately, had an open mind on how to approach the issue, and resolve it, and this proved to be an asset in securing the trust and participation of all stakeholders. Seeking to involve more people in the
reform-exercise, the Bench fixed November 13 as the last date for receiving suggestions from the general public. The Bar Council of India, an important stakeholder in the debate, was asked by the Bench to compile the proposals of all the Bars in the country and submit them by November 14. The Bench then adjourned the case to November 18 and 19 when it would again hear counsels, shortlisted by a panel comprising the petitioners and respondents in the NJAC case. With the procedure to hear proposals for reform streamlined, the Bench seemed hopeful that it could lay down fresh guidelines for adoption by the neo-Collegium by the time the next Chief Justice of India (CJI), Justice TS Thakur assumes office on December 2 after the outgoing CJI, HL Dattu retires. It was assumed that with Justice Dattu making his recommendation to the government to elevate Justice Thakur as the next CJI in view of his seniority, he was not likely to preside over the collegium meetings during the last one month in office keeping in view propriety and convention. Therefore, a
brief adjournment of the case to facilitate consideration of suggestions from all sides was expected not to hamper the working of the Collegium in any manner. REFORM PROPOSALS Although the presiding judge of the fivejudge Bench, Justice JS Khehar, ruled out any drastic reform of the Collegium beyond the fundamentals laid down by the previous nine-judge benches in the Second and Third Judges cases, he identified four broad categories under which the reform proposals would be considered. They are establishment of a permanent secretariat for the Collegium, laying down of eligibility criteria for the prospective judges, transparency guidelines and a mechanism to consider complaints against the proposed judges. The strength of the current Bench, even if smaller than the earlier ones, will not be seen to have compromised its competence to lay down effective guidelines. The Supreme Court’s Collegium, comprising the CJI and four judges of the
“...people are supreme in a democracy, and the people have a right to know what transpires in the collegium meetings, because ultimately it is they who would be affected if a wrong appointment is made.” —Justice Markandey Katju, former judge of the Supreme Court DIFFERING STANDS (L-R) Markandey Katju, former judge of the Supreme Court and Senior advocate Gopal Subramaniam have strong views on the collegium system
INDIA LEGAL November 30, 2015
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SUPREME COURT/ Collegium Reforms
legium members opposed a recommendation, it is not so binding on the government. However, the collegium had several aberrations. One was that it didn’t systematically evaluate the suitability of proposed judges on the basis of certain parameters. It is, therefore, refreshing that there is now a consensus that there should be a full-time secretariat to assist the Collegium for this purpose.
Justice JS Khehar, Supreme Court
Pinky Anand, Additional Solicitor-General
He ruled out any drastic reform of the Collegium but identified four broad categories under which reforms could be considered.
The SC Bench is also seized of a report on collegium reforms filed by her and senior advocate and counsel for petitioner, Arvind P Datar. Supreme Court who are senior-most after the CJI, has been an enigma. Created by the court’s nine-judge bench in the Second Judges case, the size of the Collegium was originally three (CJI +2), but increased to five by another nine-judge bench in the Third Judges case in 1998. The Collegium was given the responsibility of recommending the names of prospective judges of high courts and the Supreme Court for appointment by the president, acting on the aid and advice of the union council of ministers. The recommendations by the Collegium could be returned by the president for reconsideration only once; if the Collegium reiterated them, they are binding on the president. However, if two out of five col-
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COLLEGIUM SECRETARIAT The composition of this secretariat is now open to debate: some have suggested former bureaucrats; others have proposed academics. The parameters of the proposed candidates to be considered by the secretariat also vary: the number of cases argued by a lawyer, the number of judgments delivered by a judge, income range, integrity, etc. Senior advocate Gopal Subramaniam has suggested the setting up of an advisory board comprising three eminent persons to assist the secretariat to obviate generation of any false data by the executive in order to oppose the appointment of independent judges. He feels it would help the collegium receive an independent input in such cases. There appears to be a sharp cleavage, however, on the extent of transparency that may be required. Subramaniam, for instance, told the Bench that the proceedings of the Collegium ought to be confidential. Others, however, have suggested that the reasons for recommending a candidate and the procedure adopted for the purpose must be specified on the Collegium’s website. Justice Markandey Katju, a former judge of the Supreme Court, suggested that the Collegium’s interaction with the proposed judge must be televised, video recorded and archived. “After all, the people are supreme in a democracy, and the people have a right to know what transpires in the collegium meetings, because ultimately it is they who would be affected if a wrong appointment is made,” he said in an article in The Wire. According to him, public transparency, both about what the Collegium is looking for in a judge and what the judge herself or himself has to offer, is essential. Subramaniam, however, has suggested closed-door interviews of the proposed judges by the collegium.
Subramaniam also submitted that if any judge or candidate makes a “courtesy call” on the chief justice or any of the members of the Collegium, it must be treated as having incurred disqualification for appointment. He was also critical of the current practice of elevating only the chief justices of high courts to the Supreme Court, because they are high on all-India seniority. The center too expressed similar displeasure. A proposal to include three senior-most judges of high courts for consideration for elevation to the Supreme Court is now before the Bench. Adherence to seniority alone may not endow the Supreme Court with the talent, character, far-sightedness, ability, competence, innovativeness and skills required for the future, Subramaniam told the Bench. He has submitted that only complaints made by a group of senior lawyers of stature and integrity against a proposed judge must be entertained by the collegium. Subramaniam also suggested reforms with regard to the transfer of chief justices of high courts and post-retirement jobs for judges, which he claims, have seriously impaired the independence of the judiciary. As these do not fall under the four categories identified by the Bench, it remains to be seen whether it is receptive to these ideas.
The SC Bench found the diversity and volume of Collegium reform proposals too daunting to arrive at an easy conclusion. It finally decided to broadbase the consultation exercise. The Bench is also seized of a report filed by Additional Solicitor-General Pinky Anand and senior advocate and counsel for petitioner, Arvind P Datar. The report, prepared following a request from the Bench, compiled 63 diverse representations from various associations and individuals. Noteworthy among them are: The requirement to publicly disclose the names of proposed judges 30 days before their consideration by the Collegium, examination of any complaints against them by a panel of retired judges, constitution of an appraisal committee to assist the proposed secretariat, written examination for elevation to the Supreme Court, consideration of factors other than seniority for elevation to the Supreme Court, full disclosure about the relative-judges of the candidates and minutes of the collegium meetings. As Datar said at a discussion on the NJAC verdict on November 5: “The effort of the Bench, through this consequential hearing, is to iron out the creases, not alter the fabric.” IL
TOUGH CALL The civil society has lot of expectations from the Supreme Court on Collegium reforms
INDIA LEGAL November 30, 2015
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SUPREME COURT/ Surrogacy Ban
In Search of a Womb The apex court ban on surrogacy for foreign couples will put paid to a thriving industry in Gujarat. The way out is to have tighter regulations to oversee this market By RK Misra in Anand
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Anthony Lawrence
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RIME Minister Narendra Modi’s “Make in India” slogan was alive and kicking in Gujarat, where surrogacy was a thriving market. However, a recent move to ban surrogacy for foreign couples means that Indian wombs are no longer for hire to non-Indians. With India emerging as one of the main surrogacy centers in the world, the move has stirred a hornet’s nest. “I don’t think it is a correct decision. Tighten regulations, yes; a ban, no,” says Dr Nayana Patel who heads the Akanksha Infertility Clinic in Anand. She has delivered over thousand surrogate babies and single-handedly turned Anand into a global surrogacy hub. “It is no longer a few isolated cases. There is an entire economy swirling around surrogacy, imparting tangible benefits to many people, besides filling the childless void in the lives of many,” she says. Interestingly, the development of IVF in India has a basis. While Robert G Edward and Patrick Steptoe successfully pioneered the birth of the world’s first IVF baby, Louise Brown in July 1978, it was Dr Subhash Mukhopadhyay, a Kolkata-based doctor, who gave India’s first and the world’s second testtube baby, Durga alias Kanupriya Agarwal, on October 3, 1978, just two months later. Surrogacy is the practice of carrying a baby for someone else. It is done either by
implanting fertilized eggs that has no genetic relationship with the woman who carries it or alternately, the surrogate mother is artificially impregnated. THRIVING INDUSTRY Surrogacy gained momentum over the last decade and, according to a UN-backed study in 2012, is now estimated to be a $400 million industry, with over 3,000 in-vitro fertilization (IVF) centers in the country. With hardly any laws to regulate it, fears have been raised over the exploitation of surrogate mothers. There’s an urgent need to safeguard the rights of the child and the parents who opted to go through it in an alien land. The issue came up when the Supreme Court in October 2015 pointed out that commercial surrogacy is rampant and trading in human embryos is going on unhindered. A division bench comprising of Justices Ranjan Gogoi and NV Ramana said that surrogacy tourism should not be allowed and asked the government to bring it within the ambit of the law. It also sought clarification whether a woman who donates her egg in commercial surrogacy is the only mother or both she and the genetic mother are mothers of the child. The court also sought to know whether the practice of commercial surrogacy amounted to exploitation and was inconsistent with the dignity of womanhood or not. The government had informed the court that a bill to regulate the issue was in parliament. In 2013, a notification was issued by the center permitting import of human embryos for assisted reproduction. This enabled foreign couples to bring in frozen embryos and hire a womb in India. Though the government has worked out the Assisted Reproductive Techniques (Regulation) Bill, 2014, it is yet to become law, so ART clinics remain under the supervision of the Indian Council of Medical Research. Nevertheless, the government has informed the apex court that commercial surrogacy will not be permitted and only infertile Indian couples would be permitted to opt for surrogacy of the altruistic kind. ART clinics have already been told that foreigners will not be permitted to avail of this facility in India.
SURROGACY PIONEER (Left) Doctor Edward with Louise Brown, the world’s first IVF baby INDIA’S FIRST (Below) Doctor Mukhopadhyay with India’s first IVF baby, Kanupriya Agarwal
However, a court in Mumbai temporarily lifted the government prohibition on foreigners using Indian surrogates, permitting two clinics there to serve them on the condition that they will not take up any fresh cases. Dr Patel says this is a good step. She herself has over 150 such couples, the bulk of them from abroad, in various stages of the IVF procedure. “People from all over the globe remain in touch over years, going through many procedures before finally coming to India. A sudden decision to ban only sows confusion and generates uncertainty, not only for the foreigner couple, but also for an entire economic industry which has grown around it,” she adds. A visit to Anand brings out the full
According to a UN-backed study, surrogacy is estimated to be a $400 million industry with over 3,000 IVF centers in India.
INDIA LEGAL November 30, 2015
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SUPREME COURT/ Surrogacy Ban
AGAINST A SURROGACY BAN Doctor Nayana Patel, with surrogate mothers at the Akanksha Infertility Clinic in Anand
“Most surrogates belong to lower middle class families and the amount that a surrogate gets— ranging from `4 lakh to `10 lakh—means a lot to her.” —Dr Nayana Patel, head of Akanksha Infertility Clinic in Anand
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import of her statement. The lone hotel where the bulk of foreigners stay is packed with couples from South Africa, Brazil, the US and Ireland to name a few. There is 52year-old Anthony and his 37-year-old wife Vithia who had a second baby from a surrogate mother in Anand. “It is not just the money, it is Anand’s fame that brings us here. Mexico was also a choice but we chose Anand because it has done impressive work in this field,” he adds. Dr Patel calls it a win-win situation for all. “Most surrogates belong to lower middle class families and the amount that a surrogate gets for carrying a pregnancy to full term and past delivery—ranging from `4 lakh to `10 lakh—means a lot to her. In practical terms, it means the education of her children and a dwelling for the family,” she says. Worried over the implications of the Supreme Court ban, surrogates recently organized a silent protest. Thirty-four-yearold surrogate Madhuben Valand (name changed), a divorcee who looks after her mother and daughter, is angry at the government’s decision. “If the government is in no position to give me a job and look after my family, why should it take away my sole source of income? Am I indulging in any criminal activity?” she asks. Most surrogates share her sentiment. The decision to permit only Indians is also likely to affect a large number of NonResident Gujaratis (NRGs) who have settled abroad and accepted citizenship in the coun-
try of domicile. A fair amount of Gujarat’s medical tourism emanates from them. USbased Madhu Dave, who hails from Rajkot, says: “It beats me why a prime minister who hails from Gujarat and lays great emphasis on globalization should choose to impose such a discriminatory ban against the very foreigners whom he keeps inviting to invest in India.” ONLINE PETITION This concern is reflected in an online petition against the surrogacy ban by a group of parents in the UK who availed of this service. The petition to the Prime Minister’s Office titled “Stop the Ban on Surrogacy in India” received over 500 signatures. The petition was the initiative of UK-based Rekha Patel who had a baby through surrogacy. The petition points out that “foreigners seeking surrogacy services are ordinary couples who have most likely endured a fruitless fertility quest for years. Most will have to make a huge personal and financial sacrifice to embark on this journey. Faults, if any, can be addressed by stringent regulation. Banning the practice is not the answer.” This is a fear many express. “If you impose a blanket ban, you will only drive it underground and then, the remedy will prove deadlier than the disease. Take the example of liquor prohibition in Gujarat. Has liquor vanished after the ban? No, it has not,” stresses Dr Patel. In the end, tighter regulation is the only answer. IL
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SUPREME COURT/ Surrogacy Ban/ Book Extract
Law and No Law An excerpt from the book Baby Makers by Gita Aravamudan which shows the travails of gay couples who hire Indian surrogates
Amitava Sen
M
ichael Bergen and Michael Aki are graphic designers from Massachusetts. After they got married in 2004, they tried unsuccessfully for three years to adopt a child in the US. Finally, they decided to hire a surrogate. They chose India because India had better infrastructure, high-tech facilities and a healthier lifestyle in terms of fewer number of women indulging in smoking, drinking or doing drugs. The journey of the two Mikes is documented in detail in their blog titled ‘Spawn of Mike+Mike’. Bergen and Aki zeroed in on Rotunda, a
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Mumbai clinic that has been marketing its services to the overseas gay community. They had already chosen an anonymous Indian egg donor from the profiles provided by the clinic through email. Finally, they spent four days in India in July 2008. Since they both wanted to be genetic fathers, each gave a sperm sample. In order to make sure that the agreement was watertight, they spent another $3000 as legal fees to have a US lawyer rewrite it. The process went smoothly. They used eggs from the same donor because they wanted the children to be genetically related to each other. The eggs were fertilized with the sperm of the two men and the embryos were implanted in two separate surrogates. Both women became pregnant almost simultaneously and on their first try. Rose, daughter of Mike Aki, was born on 24 March and Eva, daughter of Mike Bergen, was born on 12 April. With travel costs, the couple spent about $60,000 in all, including $10,000 as compensation for each surrogate. That’s roughly half of what the total cost would have been in the US. One of the reasons they decided to go for two surrogates at the same time was because they had heard rumors that the Indian government might change its surrogacy law, making it difficult, or even impossible, for gay couples to hire an Indian surrogate. Meanwhile, around the same time, the Law Commission of India submitted the 228th report in which it addressed the need for a legislation to regulate ART clinics. It also tried to address the needs and obliga-
tions of both the parties signing a surrogacy contract. According to the guideline given in the report, the surrogacy contract should contain, among other things, the consent of the woman to bear the child and hand it over, and the intending parents to bear all the medical and other expenses. But, ironically, it said the arrangement shouldn’t be for commercial purposes.
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he Law Commission suggested that the surrogacy arrangement should also provide for financial support for the surrogate child in the event of the death of the commissioning couple, or individual, before the delivery of the child, or in the event of a divorce between the intending parents. The contract should also take care of life insurance coverage for the surrogate. According to the guidelines, one of the intending parents should be a donor as well, ‘because the bond of love and affection with a child primarily emanates from a biological relationship.’ Also, that the legislation should recognize the surrogate child to be the legitimate child of the commissioning parents, without there being any need for adoption or even declaration of guardianship. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only. Although most of these guidelines are being adhered to, the bottom line is that there is still no legislation several years later, and, even in 2014, surrogacy is stuck in limbo. Surrogacy is not illegal in India. At the same time, there is no specific legal framework governing it. And that’s what makes it such an attractive destination for infertile couples who live in countries that have strict surrogacy laws. By late 2012, the Indian Home Ministry circulated a memo which was welcomed by some and raised the hackles of others. According to this memo, which was circulated to all Indian missions abroad, gay couples, single men and women, unmarried couples and couples from countries where surrogacy was illegal, would be prohibited from hiring a commercial surrogate in India. Foreigners who wanted to hire a surrogate had to be a
According to the Law Commission guidelines, the contract should contain the consent of the woman to bear the child and hand it over, and the intending parents to bear the expenses. man and woman who had been married for at least two years. At this point of time, there were about 1,000 registered and unregistered fertility centers India. Would these regulations, if they came into force, deliver a major blow to India’s $2.5 billion surrogacy industry? Each year, an estimated 25,000 foreign couples visited India for surrogacy services and more than 2,000 babies were born. The cost of surrogacy in India was roughly a third of the price in the US, which was one of the few other medically advanced countries in the world offering commercial surrogacy. The ‘traditionally lax’ regulations surrounding the industry in India added to its attraction. An Israel-based agency, which has been sending couples to India for surrogacy services since 2008, said the combination of excellent medical facilities and attractive costs brought couples from all over the world to India. Since India decriminalized homosexuality in 2011, the agency in Israel has sent over a 100 gay couples to India. What was the impetus behind the new regulations? Homophobia? Right-wing posturing about the sanctity of marriage? Or just a practical attempt to avoid legal entanglements with other governments?
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here were quite a few cases in which surrogate babies were caught in a legal battle and the government of India was probably anxious to avoid more such situations. The Baby Manji case was the most famous one, but there were many others. There was the case of a Norwegian woman who was stranded for over two years in India with twins born by an Indian surrogate. When the DNA tests showed that the children were not biologically related to her, the Norwegian embassy in India refused to issue her the travel papers for the twins. The case dragged on. INDIA LEGAL November 30, 2015
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SUPREME COURT/ Surrogacy Ban/ Book Extract
Adoption Resources Agency (CARA). The Indian government heaved a huge sigh of relief, quickly arranged their exit permits and put them on their flight home to Germany. Critics of surrogacy are, therefore, happy to see the Indian government taking some steps to regulate this fast-growing industry.
L
Amitava Sen
BABY MAKERS: THE STORY OF INDIAN SURROGACY By Gita Aravamudan Publisher: HarperCollins India Price: `250; Pages: 200
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Sometimes, even when the babies were allowed to travel back to the parents’ country of origin, there were other complications. In 2010, a French gay man, who had twins through an Indian surrogate, was allowed to travel back to France. But surrogacy was illegal in France and, so, his twins were taken away from him and put in foster care. Two years later, he was still engaged in a court battle with the French government. A German couple—Jan Balaz and Susan Anna Lohlad—had to fight a two-year battle before they were allowed to take their twin sons, Nikolas and Leonard, back home. The twins, born to an Indian surrogate in January 2008, became stateless citizens after Germany refused them visas as it doesn’t recognize children born through surrogacy. The parents then appealed to the Gujarat High court, saying that since the children were born of an Indian surrogate, they were eligible for Indian citizenship. The Indian government refused to grant the twins Indian citizenship on the ground that they were born through a surrogate who had signed a contract relinquishing all rights over them. The case went to the Supreme Court. Finally, Balaz and his wife had to adopt the children through the inter-country adoption process supervised by the Central
aws guiding commercial surrogacy differ widely from country to country. In nations like Russia or Ukraine, where this practice is legal, single parents or gay couples are allowed to hire a surrogate. In the US, regulations vary from state to state. In Arkansas, for example, single people are allowed to hire a commercial surrogate, but the rules are ambiguous when it comes to gay couples. In California, there are no restrictions based on sexual orientation or marital status. In fact, it is even possible for a single intending parent to obtain a judgment affirming his rights before the child’s birth. Since California will not permit the space for the mother’s name to be left blank, the single male parent may choose to list himself as the ‘mother’ and leave the space for the father’s name blank. The Department of Vital Records will later issue an amended certificate reversing the answers to these questions. According to media reports, Sir Elton John forked out £20,000 in January 2013 to the surrogate mother of his newborn son Elijah Joseph Daniel Furnish-John. This was the second son Elton John and his partner David Furnish were having through the same surrogate in California. The Mail published the little one’s birth certificate on which David had been listed as the mother. The surrogate mother of Michael Jackson’s youngest son Blanket is reportedly a Mexican nurse named Helena whom the singer handpicked to carry his third child. Blanket’s real name is Prince Michael Jackson II. His mother was reportedly paid a $20,000 surrogacy fee. On Blanket’s birth certificate, Michael Joseph Jackson is identified as the father but the section where the mother’s name should be mentioned has been left blank. Blanket was conceived through IVF using Jackson’s sperm and the eggs of an unknown donor. IL
SUPREME COURT
Virbhadra case transferred to Delhi HC
T
he Supreme Court ruled that the Delhi High Court, instead of Himachal Pradesh High Court, will hear the disproportionate assets case against Himachal Pradesh Chief Minister Virbhadra Singh and his wife. The CBI wanted the case to be taken out of Himachal Pradesh as it alleged that the judge slated to hear the appeal of Singh in the high court could favor the CM. The apex court, however, was
more concerned about the blemish on the high court as an institution and wanted it to stay away from any controversy. The CBI had also pointed out that the judge hearing the case had been a lawyer for Singh earlier and had debarred the agency from arresting Singh and his wife in the present case. The plea of the CM’s counsel that the order would set a bad example could not convince the apex court.
Decks cleared for green tax in Delhi
Patel to wait till Jan 5, next year
T
A
he impasse related to the collection of the environment compensation charge imposed by the Supreme Court on commercial vehicles entering Delhi was brought to an end by Environment Pollution Control Authority. The panel appointed by the Supreme Court dealt with all procedural and legal issues in a meeting with the Delhi government and
South Delhi Municipal Corporation. The SMYR Consortium, appointed by the corporation to collect the tax, had red flagged these problems and refused to collect the tax till they were solved. Taking a serious note of dangerous pollution levels in the capital, the Supreme Court had enforced a green tax besides the toll tax already applicable for vehicles entering Delhi. The tax—`700 for light duty vehicles and two-axle vehicles and `1,300 for threeaxle and above— was to be collected from November 1 this year.
ny hope of Patidar Anamat Andolan Samiti (PAAS) leader Hardik Patel getting immediate relief from the Supreme Court on sedition charges slapped against him by the Gujarat government went in vain. The apex court decided to wait till Gujarat police completes its probe into the case and submits the report to court and will hear the case again on January 5, next year. Patel will be in jail till further orders from the apex court. The Gujarat High court had earlier reserved its order after hearing his plea. The apex court also asked the police to refrain from filing a chargesheet or
a closure report. However, it did not issue any order on another case against Patel which is being monitored by the Gujarat High Court. The high court is probing whether Patel was allegedly abducted on September 22 or was it a facade. The state government wanted even this case to be taken up by the apex court.
INDIA LEGAL November 30, 2015
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SUPREME COURT
Weeding out bogus lawyers T
he Bar Council of India (BCI) as well as the bar councils in states were given the nod by the Supreme Court to implement fresh rules that will filter genuine advocates from fake ones. The court took note that there were a large number of fake advocates thronging the courts of India.
The new rules will provide for strict verification procedures for getting a license to practice in courts. The BCI wanted the go-ahead from the apex court for bringing in the new laws under Certification of Practice (CoP) 2015. The counsel for BCI had drawn the court’s attention to the serious problem of bogus lawyers.
Evaluation system under cloud T
he controversy on the results of the Delhi Judicial Services Exam 2014 was recently heard by the Supreme Court. The court not only decided to get all the answer sheets of the 659 candidates revaluated by a retired Supreme Court judge but also sought the response from 15 candidates who had qualified for the interview. The entire exam process came under a cloud after the results revealed that only 15 candidates were selected for interview when there were 80 posts for the Delhi subordinate judiciary and more than 600 candidates took the exam. Questions were raised after it was found that two successful candidates were children of sitting
judges of the Delhi High Court while two had worked as research assistants of a high court judge. The fact that more than 65 candidates, who had cleared judicial exams in other states and were sitting judges, failed to qualify also raised ample doubts about the credibility of the exam. The court felt that conflict of interest and favoritism can’t be ruled out when the high court itself conducts examinations. The matter will be heard on December 9.
Court to take up Manmohan’s plea T
he apex court will take up the plea of former prime minister Manmohan Singh related to the coal scam on November 30. Singh had requested the apex court to hear his plea as early as possible, challenging the trial court order summoning him to appear as an accused in the coal scam. The former PM had expressed his uneasiness over the “accused” tag dangling over his head.
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The petition of former minister of state for coal Santosh Bagrodia will also be taken up by the apex court on that day. Bagrodia had opposed the apex court decision on April 1, staying the trial court order against Singh and sought parity with Singh on the stay. Singh’s petition was kept aside by the court from other coal block related petitions, on the ground that it had no relation with the coal scam.
Restrictions on daughters’ rights I
n a verdict that is going to shake up the rights of women to their ancestral property, the Supreme Court ruled that the 2005 amendment to the Hindu Succession Act was not applicable if the father had passed away before September 9, 2005. According to the Hindu Succession (Amendment) Act 2005, the daughter could lay claim to the ancestral property
A question of loan recoveries T
he apex court refrained from staying the order of the Jammu and Kashmir High Court that recovery laws of banks relating to defaulters were not applicable for the residents of J&K. It decided to examine the issue in detail and hear the defaulters. Parliament had brought in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act in 2002. The act empowered banks to take over secured assets of defaulters and sell them, and the courts or tribunals could not interfere in the process. The court was hearing a plea from State Bank of India that had challenged the verdict of the high court, which ruled that the law could not be applied in Jammu and Kashmir as the state enjoyed a unique constitutional position. The counsel for the bank had pleaded that the issue was critical as around 7,000 cases were involved.
along with her brothers. It is a double whammy for women. Earlier they had no rights in ancestral property if the property had been alienated or partitioned before December 20, 2004, and now this stipulation introduces another difficulty level. The court did not buy the argument of some high court that the daughter acquired inheritance rights by birth.
Ban on lottery upheld A
greeing with the decision of the Kerala government that the sale of online lottery tickets be done away with, the apex court observed that the whole business of lottery was a “vice” as it had destroyed many families, especially from the low income groups. The court also held that it was the prerogative of the state governments to frame laws to “organize, conduct or promote” online lotteries or even ban them and felt there was a need for a tough law to keep a tight leash on the evil practice. It observed that the online lottery operations were full of irregularities and malpractices. The court’s ruling came while it was hearing an appeal from All Kerala Online Lottery Dealers Association, Sikkim and others against the ban.
Apex court gets a creche T
he Supreme Court creche facility for children of women lawyers and registry staff was thrown open recently. The childcare facility caters to children in the age group of six months to two years. As of now, only 10 children can be admitted. The creche has a playroom, a resting room, a kitchen and a toilet. Two rooms have been assigned to the creche as a temporary measure in the New Lawyers’ Chamber. Four people, fully trained, look after the children. However, there are no provision for meals and medical attention is limited to first-aid. The parents who register themselves with the creche were required to sign a drop-in and pick-up register. Issues like fee structure and age limit for admitting children in the creche are yet to be decided by the apex court after a writ petition was filed in this regard.
— Compiled by Prabir Biswas; Illustrations: UdayShankar
INDIA LEGAL November 30, 2015
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COURTS/ Himachal Pradesh/Order on Cows
Cost of Cow B Welfare An HP High Court order bans cow slaughter and consumption of beef in the state. It also quotes a feedback which said it would cost `28.5 lakh to make just one home for cows. Imagine replicating this all over the country By Ajith Pillai
COSTLY PROPOSITION Those against cow slaughter have not addressed the huge economic costs and other ground realities involved in their upkeep
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EEF consumption and cow slaughter are two emotive issues that have generated much political heat and outrage in the last few months. At the core of the controversy is the question: should we send the animal, revered by a section of the population, to the chopping block or should we allow it to age gracefully and die a natural death? While those articulating the second course of action as being more humane and respecting Hindu sentiments have repeatedly pointed out the need to protect the gau mata, they have not adequately addressed the huge economic costs and other ground realities involved in its upkeep till old age ends its life. Instead, they have reduced it to a political and communal issue which they believe can be settled through mob action against those suspected of cow slaughter or consumption of beef. This has led to attacks on Muslims and Christians who are often conveniently seen as the prime consumers of beef when
studies have revealed that a sizeable section of Hindus and Dalits have been consuming bovine meat for generations since it is far cheaper than either mutton or chicken. ECONOMIC DIMENSION Luckily, a Himachal Pradesh High Court judgment last month addressed the economic dimension of the issue even as it directed the center to consider enacting a law to end cow slaughter nationally and to put a total ban on the sale, export and import of beef and beef products in the country. Crucially, the court also directed the center to provide necessary funds to the Himachal Pradesh government for housing and providing fodder to cows and stray cattle in the state. The court order came on a writ petition filed last year by the Sanverdhan Bhartiya Govansh Rakshan Parishad, a Shimla-based NGO seeking a court directive to save cows from being slaughtered in the state. But what about the costs involved? The court order quotes the feedback it received from district officials across Himachal Pra-
If the gau rakshak brigade is serious, it should pressure the Modi government to allocate adequate funds for the maintenance of the cow beyond its productive years. desh. This is what the deputy commissioner of Shimla submitted before the two-judge Bench, which is duly recorded in the judgement. To quote: “The Deputy Commissioner, Shimla was directed on 2.5.2015 to ensure that the land is transferred for the construction of Gosadans to the respective Panchayats within a period of three months from 2.5.2015. He was also directed to send realistic figures of the amount to be incurred for the construction of Gosadans (homes for cows) in Distt. Shimla after getting the building plans etc. prepared from the duly qualified Architect within a period of two months... “In sequel to the directions issued by this Court on 2.5.2015, the Deputy Commissioner, Shimla has filed an affidavit on 13.8.2015. According to the averments
UTILITY VALUE A cow is usually considered economically useful for about five years of its adult life, although it lives up to 15 years
INDIA LEGAL November 30, 2015
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COURTS/ Himachal Pradesh/Order on Cows
Once a cow stops lactating, it becomes a liability for its owner. They are let loose on the streets to fend for themselves and can be seen feeding on refuse from garbage bins.
contained in the affidavit, out of the total 363 Gram Panchayats in the District Shimla, total 357 Panchayats have identified and selected the land for the construction of Gosadan. However, feasibility of construction of a Gosadan in each Panchayat was to be ascertained by the BDO as well as the SDM of that area, keeping in view the high cost of construction and maintenance of these Gosadans. The estimate of the cost of construction of one unit of Gosadan to house 30 animals on scientific patters (patterns) amounts to Rs. 28.50 lac as submitted by District Panchayat Officer, dated 31.7.2015. The cowshed would cost amounting to Rs. 16.41 lac, fodder store would cost Rs. 8.92 lac and guard room would cost Rs. 3.16 lac. These estimates were again got checked by the competent Engineer who endorsed the estimates.” The feedback to the court made it amply clear that funds were required for fodder for the cattle and the upkeep of stray animals as directed by an earlier order of the same Court on October 7, 2014. There was much paper work and clearances necessary for acquiring suitable land for establishing gosadans. Refurbishing and extending existing facilities also entailed financial support from the
state. In fact, the conclusion that one can draw is that an elaborate priority plan has to be drawn up and implemented at various levels to ensure cow protection. REGISTER CATTLE The High Court, in its latest judgment last month, directed the Himachal Pradesh government to also register all cattle in the state. “All the State Panchayats throughout of Himachal Pradesh through Secretary (PR) are also directed to adopt micro-chipping number process on private/stray cattle, whereby an electronic chip is inserted in the animal having unique ID number which can be read with the help of a scanner and owner can be identified, for the purpose of enumeration, within 6 months from today.” A pilot “micro-chipping” project, the court was informed, was already under way in a village in Old Manali at a cost of `225 per chip. The plan is to extend this project to the rest of the state. The state government has also been directed by the Court “to make the citizen throughout the State of Himachal Pradesh aware about the animal rights and their welfare by issuing public notices in the leading English and vernacular newspapers.” A largescale campaign will have to be launched not only among the general public but among veterinary professionals, law enforcement agencies, district officials and dairy farmers as well about the need to protect and tend to cattle. This effort will require human resources inputs as well as funding. If setting up a single gosadan in a district costs `28.5 lakh, then imagine the monies involved in duplicating even one such unit in each of the 600 districts in the country. And that would in all cater to only 18,000 animals. According to the 2014 livestock census of the agriculture ministry, the population of milch animals is 118 million. HUGE COST A cow is usually considered economically useful for about five years of its adult life, although it lives up to 15 years. Thus, the turnover of “senior cows” each year would be huge and its maintenance would involve considerable financial input. According to an
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official of the agriculture ministry, the seed money for setting up infrastructure to house unproductive bovines would be `10,000 crore with additional annual allocation for fodder, care and salaries of staff employed to look after them. While the Court order bans cow slaughter and sale, consumption and export of beef in Himachal Pradesh, it also strongly recommends a nationwide ban. However, it stops short of issuing an order binding on the central government. The order notes: “Though, no writ of mandamus can be issued to respondent No. 10 (the Union of India) to enact a legislation to prohibit slaughtering of cow/calf and putting restrictions on import and export of cow/calf, milch and other cattle or import and export of cow/calf, including sale of beef or beef products, however, in view of Article 48, 48-A and 51-A(g) of the Constitution of India, the Union of India is directed to consider to enact the law prohibiting slaughtering of cow/calf, import or export of cow/calf, selling of beef or beef products, in its own wisdom at the national level, within a period of three months from today. The Union of India is also directed to provide necessary funds to the State Government for housing and providing fodder to cows/stray cattle for the specially framed Schemes for the protection and conservation of cow/calf...” GOVERNMENT ACTION The judgment does not say it in as many words, but when looked at dispassionately, cow slaughter is an issue that requires government intervention which goes beyond banning beef consumption or cow slaughter. It involves looking after the cow’s welfare from birth to its natural death. For this, government intervention is essential. If the gau rakshak brigade is serious, it should pressure the Narendra Modi government to allocate adequate funds for the maintenance of the cow beyond its productive years. It would have to be a major economic policy decision. Champions of cow protection must also bear in mind the ground reality that the animal is not primarily reared for religious reasons but for economic ones—namely the milk it produces. And once it stops lactating,
If setting up a single gosadan in a district costs `28.5 lakh, then imagine the money involved in duplicating even one such unit in each of the 600 districts in India. it becomes a liability for its owner. In fact, when cows are not milking in between pregnancies, they are let loose on the streets by their owners to fend for themselves. They can be seen feeding on refuse from garbage bins. There are many other aspects of the cow protection programme that have not been addressed by the judgement. A dairy farmer in Kerala contacted by India Legal had this to say: “A cow protection force will have to be created which will be empowered to act against those violating the ban. This task cannot be left to self-appointed saviors of the animal. Farmers who look after animals after they have stopped milking will have to be provided a subsidy to maintain such cattle. Otherwise, the number of people into cow farming will come down because they find it economically unviable.” A welfare state for the cow requires more than lip service from the government. It needs to be backed by policy decisions requiring serious spending from the exchequer. IL INDIA LEGAL November 30, 2015
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COURTS/ Cow Slaughter Ban
Meat Masala
While some states have banned the sale of beef, courts are unable to tell the difference between different kinds of meat and are using dubious evidence to settle disputes By Vipin Pubby in Chandigarh
E
VEN as most of states have banned cow slaughter and the sale of beef, courts are finding it difficult to differentiate between beef and other meat. This is due to the lack of testing facilities. The fallout has been a large number of acquittals. The Haryana Gauvansh Sanrakshan Act, 2015, bans cow slaughter and anyone indulging in it will get rigorous punishment
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STEEPED IN TRADITION Traditional puja being conducted for an old cow at Sree Padmanabha Swamy temple in Thiruvananthapuram Photos:UNI
ranging from three to 10 years and a fine up to ` 1 lakh. It bans the sale of beef and beef products except for medical purposes and any contravention of the law provides for a term which is not less than three years and may extend up to five years with a fine not less than ` 30,000 extending up to ` 50,000. STRICT LAW This makes it one of the most stringent laws on the issue in the country. The definition of “cow” under the new law includes bull, bullock, ox, heifer or calf, as well as those which are disabled, diseased or barren. It also includes the flesh of the animal that is packed in sealed containers and which has been imported into the state. It further says that “anyone seeking to send cows out of the state must apply for a permit to the government, stating the reasons and numbers of export, and the destination state, as well as a declaration saying that the cows would not be slaughtered''. It also provides that “permits shall not be issued for exports to a state where cow slaughter is not banned”. Evidently aware of the limitations of the courts in differentiating beef from other meat, the Act has provisions for establishing laboratories for the same. In the absence of such facilities, the courts have been taking
“expert” opinions from veterinarians or consulting the internet on the color and texture of the seized meat. The High Court of Punjab and Haryana has often found itself in a piquant situation where it had to decide appeals against convictions by lower courts in the absence of authentic information because of a lack of testing facilities. In the recent past, at least two judges have quoted from their internet searches to check for differences in cow meat with that of buffalo and other animals to decide cases under the Punjab Prohibition of Cow Slaughter Act, 1955. This Act restricts export of cows from one state to the other for slaughtering, and was enforced before the new law came in. The Act also provided for exceptions, including permission from authorities concerned, for such export. However, a problem arose when the accused disputed the charge that he was in possession of cow meat. The only exception where acquittal was denied was where the accused was found with the head or skin of a cow which established the identity of the animal. INTERNET SEARCH While dealing with one such case recently, Justice Mahesh Grover of the Punjab and Haryana High Court quoted from internet searches to conclude that beef was bright to dark red and had white- or cream-colored fat. The search pointed out that goat meat was light to dark red and had chalk-white fat while pork was grey-pink and had red-white fat. Acquitting an accused in a case in April, he observed that “formulating a conclusion on the bare visual examination of meat products to establish it to be beef and to form basis of conviction would be erroneous”. The accused was convicted by a lower court for carrying 25 kg of beef. The conviction was based on testimony given by some veterinarians that the seized meat resembled beef. The veterinary surgeons, who were quoted as “experts”, had evidently gone by the visual of the seized meat in the absence of laboratory tests. The accused, on the other hand, had taken the plea that it was not beef as the fat was not cream or white in color. In another similar case, Justice Alok Singh looked up the internet to find that the
fat around the edges of beef should be “white to ivory'' in color. He quoted from the search to say that “beef fat should be creamy and not yellow in colour” and that beef should be “deep in colour''. Last month, in the wake of violence, the central government announced that it would set up laboratories at major ports to test for illegal export of cow meat. Export of buffalo meat is allowed but it is difficult to differentiate it from cow meat due to its similar texture and color. Union Minister of State Sanjeev Kumar Balyan said the laboratories would add an extra level of checks for illegal exports of beef. Despite the ban in most states on the slaughter of cows, India is the top exporter of beef mainly due to buffalo meat exports. As per exporters, India is expected to export 2.4 million tons of beef this year. Rajesh Lamba, who has been dealing with cases pertaining to cow slaughter and beef in the Punjab and Haryana High Court, says that due to lack of laboratories, the courts were depending on veterinary surgeons who are not trained for the purpose and only hazard “wild guesses” based on their experience and color of the meat. He said that if the law, including the new Act in Haryana, is to be enforced, the government would have to set up a large number of laboratories with facilities for preservation of samples and quick analysis. That seems like a Herculean task. IL
WHAT’S AT STAKE People protesting against cow slaughter
In one case, Justice Alok Singh looked up the internet to find that the fat around the edges of beef should be “white to ivory” in color. He quoted from the search to say that “beef fat should be creamy and not yellow in colour” and that beef should be “deep in color”.
INDIA LEGAL November 30, 2015
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COURTS/CONTROVERSY/ Madras High Court
Court of I Discord As the Madras High Court hits one crisis after another, be it over caste or language issues, in an unprecedented move, central security forces will be deployed there By R Ramasubramanian in Chennai
ORDER ORDER! Madras High Court becomes the first high court in India, apart from the Delhi High Court and the J&K High Court, to be guarded by a central force
N an unprecedented ruling, the first Bench of the Madras High Court (MHC) headed by Chief Justice Sanjay Kishan Kaul had ordered the deployment of central security forces for the court campus in Chennai. Formal orders for it came on October 30 after hearing arguments from the central and state governments and from the Madras High Court Advocates’ Association (MHAA). As the center expressed its inability to deploy either the CRPF or the BSF due to shortage of manpower, the Central Industrial Security Force (CISF) will be deployed from November 16. With this, MHC becomes the first high court in the country, apart from the Delhi High Court and the J&K High Court, to be guarded by a central force. This crisis has been brewing for some time. Though there was bad blood between the state police and lawyers for several years, the immediate provocation for deploying the CISF was the growing tiff between the judges, especially the Chief Justice (CJ), and a group of lawyers.
ADVOCATES’ RUCKUS On September 14, some dozen lawyers squatted in the court hall of the CJ demanding that Tamil be made the language of the High
“Protect judges in Delhi” In another case of alleged misconduct by a lawyer, a woman judge accused him of using “filthy and abusive” language and even talking to her in a threatening manner while she was hearing a case in a Delhi court. The lawyer had appeared for a man whose vehicle had been impounded as he was found drunk while driving. Delhi Judicial Services Association took serious note of the matter and urged in a resolution to the Delhi High Court and Bar Council of Delhi that the dignity of judges be protected. It also wanted the government to ensure security of the judges. An FIR was also filed by the police after the woman judge filed a complaint.
Court. The dharna went on for a whole day, resulting in their eviction and arrest. Just two days after this incident, when another division Bench was hearing a contempt plea against a couple of lawyers from the Madurai Bench in the MHC campus, over 300 advocates tried to barge into the court hall. The ruckus went on for over two hours. With these two incidents as the immediate provocation, the CJ told the state and central governments that the Bench wanted central security cover as the state police couldn’t be trusted any more. The Jayalalithaa government vociferously opposed the move and said that it was competent enough to safeguard the MHC campus. Initially, the central government expressed its inability stating that deploying central forces without the concurrence or willingness of the state would have a bearing on the federal structure. But, it gave in later. Although Tamil Nadu went to the Supreme Court to get the High Court order revoked, it didn’t help. On November 4, the Supreme Court dismissed Tamil Nadu’s appeal challenging the handing over of security of the Madras High Court premises to the CISF. An apex court Bench headed by Justice TS Thakur and PC Panth dismissed a petition filed in this regard. The court even observed that if the situation warranted, it would not dither to call the Army to restore the dignity of the institution. Interestingly, the MHAA, which had a running battle with the state police, closed its ranks with the police and strongly opposed the central forces. However, the first Bench overruled all objections and ordered deployment of the CISF. The Bench also directed the state government to deposit `16.32 crore to the center for security expenses for the next six
months wherein the CISF would guard the premises. If the situation improved, the state police could take over the security once again, the Bench said. There were mixed responses to this development. The ruling AIADMK fears that this may be used by the opposition, especially in the run-up to the assembly elections due between April and May 2016, to say that law and order was collapsing in the state. “The CJ ordering CISF cover will surely be viewed and interpreted by the opposition as nothing but strictures on the state police and it will be used by the opposition as a whipping tool in the elections,” said a senior IAS officer on condition of anonymity. But there are some genuine concerns too about the deployment of the CISF. “This will create a lot of practical problems. Language is a major problem. CISF personnel know only Hindi and not English or Tamil. By demanding ID cards from even senior lawyers when the latter rushes to the court halls at the 11th hour, things could get complicated and worsen,” said RC Paul Kangaraj, the president of MHAA. MASSIVE COURT Apart from this, jurisdictional issues could be another problem. “Unlike other high court complexes where only the high court is functioning, here in the MHC complex, sessions courts, family courts, CBI courts, motor vehicle cases courts, banks and MHAA buildings are situated. The number of litigants entering these premises is huge and this could further complicate the issue,” says A Jaison, a lawyer in the High Court. However, the Tamil Nadu Advocates’ Association (TNAA) president, S Praba-
“The agitating lawyers have instilled a fear psychosis in the minds of judges with their threats...How can we function when we sit under fear psychosis that a mob may come in any time? What was the BCI doing?” —Justice HL Dattu, Chief Justice of India
INDIA LEGAL November 30, 2015
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COURTS/CONTROVERSY/ Madras High Court
Sanjay K Kaul, chief justice, Madras High Court
Justice CS Karnan, Madras High Court
His order on deploying In April-May this year, he central security forces had stayed the selection for the High Court process for the campus in Chennai was appointment of lower unprecedented. It was judicial officers in the upheld later by the Tamil Nadu Judicial Supreme Court. Service Commission. karan welcomed the move and said language would not be a problem. This development could not have occurred at a worse time for the MHC as it is already fighting a crisis brewing within its own Bench. In April-May this year, Justice CS Karnan of the MHC stayed the selection process for the appointment of lower judicial officers in the state judicial service commission on the grounds that one of the selection panel members, a sitting judge of the MHC, was corrupt. Justice Sanjay Kishan Kaul referred this matter to a division Bench. The Bench stayed Justice Karnan’s order and gave the go-ahead to the selection process. Angered by this, Justice Karnan, initiated suo motu contempt proceedings against Chief Justice Kaul. In addition, he wrote to the National Commission for SC\ST complaining that he was ill-treated and sidelined by the CJ because he was a Dalit. The MHC then rushed to the Supreme Court through its Registrar-General. The SC stayed the suo motu proceedings initiated
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against Justice Kaul by Justice Karnan. It also warned that no institution or judge should interfere in the selection process of judicial officers of the state. But Justice Karnan continued his tirade and in August, he wrote letters to the president, prime minister, Chairman SC/ST Commission, former UP CM Mayawati and Union minister Ram Vilas Paswan that he was sidelined by the CJ for being a Dalit. Justice Karnan also wrote letters to the Registrar-General of MHC to give him `5 lakh to fight the case related to him in the apex court. Against this background, Chief Justice of India (CJI) Justice HL Dattu made this remark on September 21: “The agitating lawyers have instilled a fear psychosis in the minds of judges with their threats...How can we function when we sit under fear psychosis that a mob may come in any time? What was the Bar Council of India doing?” CASTE FACTOR A section of senior lawyers strongly believes that caste feelings are predominant in this campus and blames the judiciary and the appointment process for not giving adequate representation to some communities. “Yes, caste feelings are running amok and it’s nauseating. But we have to understand that there are vulnerable sections that are not represented and there are communities which are overrepresented. We should have social justice in the appointments of judges, but at the same time, we cannot allow caste to be predominant,” said a senior lawyer. The MHC has been roiled in all kinds of rows and controversies recently. While it has petitioned the SC to rescue it from the gimmicks of one of its judges, lawyers are holding court proceedings to ransom and releasing the names of “corrupt judges”. One lawyer even approached the apex court to initiate contempt proceedings against a sitting High Court judge. A set of lawyers also protested in the MHC asking Tamil to be made the court language. All this is happening when over onethird of judges’ seats are lying vacant, resulting in cases piling up. CJI Dattu was right when he said: “As a law student I was told by my senior to go to this High Court and learn advocacy. All is lost.” IL
COURTS
Rights for illegitimate child lthough, a child born out of rape will be considered illegitimate, it is fully entitled to inherit the property of the biological father, the Allahabad High Court ruled recently. The Court noted that it was the personal law that determined the claims of the child over his/her father’s property irrespective of whether the birth was due to rape or consensual sex. However, it ruled that the inheritance rights will cease to exist if the child is given away for adoption. The court made the observation while adjudicating a rape case in which the 13year-old victim was to give birth to the child as the legal deadline
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Action against illegal operators PIL filed by advocate Datta Mane drew the attention of the Bombay High Court to the huge financial loss suffered by the Maharashtra State Road Transport Corporation as a result of private vehicles and buses illegally ferrying passengers on its routes. The petition lamented that despite the 2001 order of the Aurangabad Bench of the High Court asking for action to be taken against such operators, nothing had been done so far. On the contrary, the number of such operators had only increased exponentially over the years, it stated. The PIL pointed out that rules were being flouted with impunity as the concerned authorities looked the other way. It even cited a figure of `600 crore per month as losses faced by the state transport corporation to substantiate its claims. Taking strict cognizance of the plea, the Court directed the Maharashtra government to initiate action against such unscrupulous operators. On being told by the state government that a district level committee would conduct sudden raids on routes and impound vehicles plying unlawfully, the court asked the additional transport commissioner to inspect the drive and come back with a report on November 20.
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to abort was over. It asked the state government to give `10 lakh to the child as maintenance and provide a job to the victim after she becomes an adult. The Court refrained from a legal directive on inheritance in the case as it felt that any specific directive could complicate matters.
Jail till death for Uber driver aking cognizance of the heinous nature of the crime and invoking a new law on rape, a trial court in Delhi sentenced Shiv Kumar Yadav to imprisonment for the rest of his life. It also asked Yadav to cough up a fine of `21,000. The Uber cab driver was found guilty of raping a 25-yearold executive in his taxi in
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December 2014. The court felt that Yadav deserved no mercy as he had put the life of the victim in danger and committed a grave crime against society. It justified the severe punishment on the ground that it would send a strong message that the judicial system could be relied upon, make potential offenders think twice before committing such crimes and end crimes against women in general. The court also directed that the victim be sufficiently compensated. Significantly, it also wanted proper arrangements for Yadav’s old parents, wife and minor children so that they could continue their lives without any problem. The Delhi Legal Aid Services is to take a call on both the issues.
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COURTS
One bar, one vote, says Madras HC
Madan Mitra under house arrest e may have been given bail by Alipur Court, but West Bengal State Transport minister Madan Mitra will remain confined in his South Kolkata house once he is out of hospital till the Calcutta High Court takes a decision on his bail. And the police too will keep a close watch on him. The High Court gave the ruling recently while hearing CBI’s objection to the bail granted to
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Mitra, who is an accused in the Saradha chit fund scam. The Court, however, allowed Mitra to leave the house provided it was for medical attention or interrogation by the CBI. The Court also ruled that the bail opposition by the CBI needed a proper hearing, which will now take place on November 17 after responses from both the parties were filed in the court.
he Madras High Court in its interim order has debarred all four lawyers’ associations at its campus from holding polls. The bodies involved are the Madras High Court Advocates Association, Madras Bar Association, Law Association and Women Lawyers Association. The Court ruled that the associations must bring in the “one bar, one vote rule” before elections take place. According to the rule, a lawyer can vote only in one association. Till now, they were casting votes in more than one association. Lawyers are allowed
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to be members of more than one association. The Court was hearing a writ petition on the issue that referred to the rule being applied in the elections to Supreme Court Bar Association and wanted the High Court to ensure the same in its associations. The Court also noted that high courts of Rajasthan, J&K and Maharashtra were following the rule and ordered that the associations could go for polls only after fresh directions from the Court or making the necessary bylaws changes.
Kerala HC okays probe in Mani case he vigilance court’s contention that the bar bribery scandal, allegedly involving Kerala finance minister KM Mani, needs to be probed further was upheld by the Kerala High Court. The vigilance court had earlier questioned the probe report from the state’s vigilance and anti-corruption bureau and blamed it for failing to file a chargesheet against Mani. The High Court did not agree with the bureau’s plea that the vigilance court’s order be struck down. Mani has been accused of asking for `5 crore in return for the renewal of licenses for more than 400 bars in Kerala. An FIR was also lodged against him in the case. The court did not ask Mani to step down but left it to the minister’s conscience to take a decision.
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No sedition charge against Jaitley here was no ground for sedition against Union finance minister Arun Jaitley, the Allahabad High Court ruled. It was adjudicating on the charge slapped by a judicial magistrate of Mahoba in Uttar Pradesh against Jaitley for calling the apex court verdict on NJAC as “tyranny of the unelected”. The magistrate had also summoned the minister to appear in person on November 19. The High Court concurred with the counsel for Jaitley that the magistrate had overreached his authority and there was no sanction from the state government on the matter. It struck down the summon order and quashed all legal proceedings against the FM.
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NGT bans sand mining he NGT recently took a serious note of allegations that illegal sand mining was taking place along the banks of the Yamuna in Noida and Faridabad regions. The green tribunal was hearing a plea by the NGT Bar Association that brought up the issue. The court was told that two private firms were indulging in rampant sand mining and had even erected a temporary bridge on the river, hindering its natural flow. Banning mining activity altogether till December 27, the next date of hearing on the matter, the NGT asked a local commissioner and a person from the ministry of environment and forests to submit a combined inspection report on the matter by that date. The UP government was told to take control of all material and machinery related to mining from the Noida area. The chief engineers of the irrigation departments of UP and Haryana were ordered to gauge the extent of damage caused to the river and submit a report. Showcause notices were also issued to the two firms.
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Invoke AFSPA in Garo Hills eeping in view incidences of kidnappings and killings by Garo National Liberation Army and other militants, the Meghalaya High Court asked the center to implement the Armed Forces (Special Powers) Act (AFSPA) in the Garo Hills region and bring in the army and the paramilitary forces. The Court felt that the move was necessary to restore public order in the Garo Hills as the situation was outside the control of police and civil authorities. It also ruled that the AFSPA would only be lifted after normalcy returns in the region and the fundamental rights of the citizens staying there, as well as public servants, were restored. The matter will again be heard on November 18.
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Transgender becomes sub-inspector in Tamil Nadu n a significant ruling, the Madras High Court asked the Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) to appoint a transgender, K Prithika Yashini, as a subinspector of police in the state police department. Yashini will be the first transgender to join the state police as an officer. Yashini had applied for the post but was turned down, following which she had approached the High Court. The Court also issued orders asking the concerned authorities to allow her to face the viva-voce test, albeit under certain conditions. The Court took note of the fact that there was no column for the “third gender” as directed by the apex court, which ruled that they should be given reservations befitting socially and economically backward people and seats allocat-
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ed for them in educational institutions and government jobs. It asked TNUSRB to include transgender as a “third category” in its future recruitment process. The bench did not lose sight of the fact that Yashini had nobody to look after her.
Bring in uniform civil code aking a strong case for doing away with the practice of polygamy among Muslims, the Gujarat High Court felt that time had arrived for a uniform civil code in India. The Court was hearing a case
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wherein a Muslim man was slapped with bigamy charges for re-marrying without the permission of his first wife. As Muslim personal law allowed for a second marriage, the man was absolved. However, the Court noted that one-sided talaq and multiple marriages prevalent among Muslims were against the provisions of the constitution which wanted the state to try and implement a uniform civil code throughout India. By allowing such practices, the state was only aiding female discrimination, the Court observed. — Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL November 30, 2015
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NATIONAL BRIEFS
Khobragade denies allegations
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evyani Khobragade, an Indian Foreign Service (IFS) officer and former Deputy Consul-General of India in New York, has denied in the Delhi High Court the central government’s claim that she violated passport and citizenship laws by obtaining American and Indian passports for her two daughters. Khobragade was responding to the claims of the Ministry of External Affairs.
Navy appeals against HC verdict
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he Ministry of Defense and the Chief of Naval Staff have moved the Supreme Court challenging the order of the Delhi High Court of September 4, 2015, that states women officers in the navy should be offered permanent commission after they complete their short service stints. The petition states that the
High Court order “severely affects the operational structure and administrative exigencies in the Indian Navy”. “The Navy’s decision to appeal against the reinstatement of lady officers proves what the HC had stated… that the Indian government is proud to showcase women power but in reality, the picture is entirely different,” naval officers told The Indian Express.
Divorced Muslim women
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recent survey of 117 Muslim women across the country found that 60 percent of them were given divorce unilaterally by their husbands. In other cases, the divorce was one-sided with the woman being informed about it by her relatives, the local Qazi or through SMS or e-mail, The Times of India reported. About 16 percent of women did not know the mehr (payment or possessions given by the groom’s family to the bride) amount fixed during the nikah and in 56 percent of the cases, they were deprived of
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this token amount too. An earlier study by NGO Bharatiya Muslim Mahila Andolan had found that 92 percent of Muslim women were opposed to triple talaq.
n a notification issued on October 16, the Delhi government and the Chief Registrar of Births and Deaths authorized the principal magistrates of the two Juvenile Justice Boards and chairper-
sons of the Child Welfare Committees to issue delayed birth registration certificates to children whose age inquiries have been conducted in Delhi. In response to a PIL filed by advocate Anant Asthanaon on
Jung rejects Chautala’s parole
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elhi Lieutenant-Governor Najeeb Jung rejected the parole application made by former Haryana chief minister Om Prakash Chautala. The leader, convicted in a teachers’ recruitment scam, is serving a ten-year sentence in Delhi’s Tihar Jail. Chautala had allegedly sought a transfer to a prison in Punjab but the Delhi government refused to transfer him out of Tihar. The Lieutenant-Governor’s office stated: “The principal secretary (home) and minister (home), GNCTD did not recommend the parole on the ground that the convict had last availed one month parole w.e.f. April 4, 2015 to May 5, 2015, further extended up to May 28, 2015 and he surrendered on June 3, 2015.”
the issue of juvenile offenders being sent to adult jails due to lack of age proof, the Delhi High Court issued a directive in January to provide children with valid age and identity papers.
LEGAL EYE/ Sedition
Taming Criticism, Colonial Style Maharashtra recently expanded the scope of sedition. When this charge was first introduced, India was under colonial rule. But today, there is freedom of speech and the law should protect it By Justice Narendra Chapalgaonker
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controversial circular issued by the Maharashtra government on August 27 explaining and thereby expanding the scope of sedition punishable under Section 124(a) of the Indian Penal Code (IPC) was withdrawn as per a statement made by the AdvocateGeneral of the state before a Bench of the High Court. The Court was hearing a challenge to that circular in a PIL. This circular would have enabled the police machinery to interpret any criticism of the central or state government, their officers or holders of office under them, to be an act of sedition. Section 124(a) is one of the most ill-famous provisions in our IPC. When the IPC was enacted, this provision was kept out. The 1857 Mutiny was a recent past. The colonial government did not want to give the impression that it was a measure of repression. The provision was later inserted in the IPC. JOURNALISTS TARGETED It was first used against a journalist in Bangbasi’s case (ILR 19 Cal 35). The second journalist to become a victim of this provision was Lokmanya Bal Gangadhar Tilak, editor
BOWING TO CRITICISM The Devendra Fadnavis government in Maharashtra had to withdraw a controversial order on sedition
Photos:UNI
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LEGAL EYE/ Sedition
GAGING CRITICISM Tamil folk singer Kovan (left) was recently arrested for criticizing Tamil Nadu CM J Jayalalithaa (right) in his songs
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of Kesari and a respected national leader. In Kerari’s June 15, 1897, issue, there was a short piece titled, Shivaji’s Utterances, and also an account of a public meeting to commemorate the Coronation Day of Chhatrapati Shivaji. Both these articles were alleged to be seditious. When Tilak came to know that the government was planning to prosecute him for sedition, he, a law graduate and a teacher of law, wrote an article titled, What is meant by sedition?, in the Kesari on July 20, 1897. He argued that no amount of criticism of any government functionary or his acts or omissions and also the policies of the government would amount to sedition, however harsh the words used might have been. It is only when a legally established government is sought to be overthrown by unlawful means or the people are incited to do so, that an offence of sedition would be there. Tilak very well knew
that an interpretation of law by a journal would not lead to the courts. He was educating his readers about law and also about the unjust attitude of the government. The same arguments were advanced on behalf of Tilak in the court. However, as expected, Justice Strachey who heard that case did not accept it and held him guilty. Barrister Pugh who was arguing on behalf of Tilak, wanted to rely on the speeches made in the legislative assembly by government representatives while introducing the amendments to show the intention of the legislature. But the learned judge held that such speeches were inadmissible. Justice Strachey, while addressing the jury, had defined disaffection as absence of satisfaction. When the motion for certificate of fitness for appeal was being heard, the Bench admitted that this was misdirection to the jury; but even then, the leave to appeal was refused.
Lokmanya Tilak had to undergo a sentence. Justice Mahadeo Govind Ranade, a liberal patriot and a visionary, was a judge in the Bombay High Court then. Tilak’s case was not heard by him. However, it appears that he held the same view as Tilak about interpretation of Section 124A. However, a judge can speak about judgments only as long as he is in office and only if required. Ranade had to wait for the opportunity. The wait wasn’t too long. SEDITION SCOPE Within two months, another case of sedition came up before a full Bench of Chief Justice Farran, Justice Parsons and Justice Ranade (ILR Bom 1897 p.152). The accused was the editor of Pratod Weekly published from Islampur (dist. Satara). The sessions judge who had heard the trial, had sentenced the editor for transportation of life and the other accused, the printer and publisher, to seven years rigorous imprisonment. Though the conviction of the appellants was confirmed, the sentences were considerably reduced. In this case, though Justices Parsons and Ranade concurred with the chief justice, both chose to write separate but concurring judgments. It gave Ranade an opportunity to express his views about the scope of the offence of sedition. Justice Ranade traced the history of the introduction of Section 124A in the IPC and pointed out that the principles of the English statute and common law were followed. Thus, having pointed out a connection between English law and the new provision, he contended that the words “exciting” or “attempting to excite feelings of disaffection” used in this Section can best be ascertained by a study of the corresponding English statutes and the decisions of English judges. Referring to some precedents, including Bangbasi’s case, he ruled: “Disaffection, as thus judicially paraphrased, is a positive political distemper, and not a mere absence or negation of love or good-will. It is a positive feeling of aversion which is akin to disloyalty.” Justice Parsons was more clear. He held “the word disaffection used in S. 124A … in its special sense as signifying political alienation …. and feeling of disloyalty …”
When these cases were tried, India was under colonial rule. Criticism of public conduct of an official was saved, but prosecutors could smell disloyalty in any writing. But today, we are a free country. The constitution has granted freedom of speech to every citizen and to the press. Criticising the public conduct of officials is a fundamental right. Section 124A will have to be read in the light of this changed situation. Unless somebody resorts to armed rebellion or advocates it, it would be difficult to book him for sedition. Our public life has become more and more intolerant. Baseless charges, irresponsible utterances, hate speeches, defamatory statements and abuses are hurled every day. The law cannot teach civility or soberness but it can control offences. If penal provisions are inadequate, they can be replaced or amended as charging alleged offenders with palpably inapplicable provisions of IPC would be misuse of executive power. Recently, the Tamil Nadu government presented such an example of total disregard of fundamental rights of citizens. Kovan, a folklore singer was booked for sedition for alleged derogatory presentation of chief minister Jayalalithaa in a street play. Left leaning Kovan was canvassing for prohibition in the state. Clearly, Section 124A, a relic of the colonial days, needs revisiting. IL
EXPLAINING SEDITION (L-R) Lokmanya Bal Gangadhar Tilak and Justice Ranade
The constitution has granted freedom of speech and criticising the public conduct of officials is a fundamental right. Section 124A will have to be read in the light of this changed situation.
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CRIME/ Chhota Rajan
When the Don Speaks... Chhota Rajan may not only reveal information about Dawood, but could throw light on his police and political connections. Will this information be placed in public domain to serve vested interests? By Ajith Pillai
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ENEMY’S ENEMY? Chhota Rajan, arrested in Bali, is expected to give vital information against Dawood Ibrahim
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HEN Rajendra Sadashiv Nikhalje alias Chhota Rajan was arrested in Bali and brought back to India on November 5, it attracted much media attention. The 55-year-old underworld don had been on the run for the last 27 years and is the accused in over 70 cases of drug smuggling, murder, extortion and kidnapping in Delhi and Mumbai. His eventual arrest was seen as significant because he was the number two to Dawood
Ibrahim for well over a decade and has insider information about the infamous D Company, said to be directly involved in the 1993 Bombay blasts. But is that all there is to Chhota Rajan? According to insiders in the Mumbai police, the information he has could well be leveraged by those in power. His depositions to the CBI and other investigating agencies, if made public, could embarrass opposition leaders as well as law enforcement officials, who were not kindly disposed to Rajan and his men.
DEFINING MOMENT (Left) The Bombay blasts of 1993 brought into focus the criminalpolitician nexus in the country (Below) Dawood Ibrahim became the most wanted criminal of India after the blasts
“If press reports quoting CBI sources are to be believed, then Rajan has threatened to name politicians and officers on Dawood’s payroll. He may not have evidence to back up his claims and which will stand in a court of law, but if names are revealed, it would be extremely embarrassing. He has great nuisance value,” a former crime branch official of the Mumbai police told India Legal.
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t was after the 1993 Bombay blasts that Chhota Rajan parted ways with Dawood. Much of Rajan’s damaging information about Dawood’s political links would date back to the period before that—from the mid-80s to the early 90s. That was when the latter was seen as a parallel force in India’s commercial capital, manipulating the system and compromising the police at will. Politicians approached the D Company for financial favours (including money transfers through hawala) and muscle support. Similarly, the film industry welcomed the underworld with open arms and Dawood & Co emerged as major financiers for many Bollywood productions. Such was the underworld’s hold over the system that in the aftermath of the ’93
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Bombay blasts, the Congress government at the center appointed the NN Vohra Committee to look into the criminal-politician nexus. It submitted its report in 1995 and this was tabled in parliament. But some of the annexures attached to the report were held back, as they contained what was described as “sensitive information”. These included an IB input submitted to the Committee, which contained the names of politicians with underworld links and included Congress leaders who currently hold senior positions in the party and INDIA LEGAL November 30, 2015
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CRIME/ Chhota Rajan
NN Vohra, former bureaucrat, current governor, J&K
YC Pawar, former joint commissioner, Mumbai police
Joginder Singh, former director, CBI
He headed the NN Vohra Committee and probed the nexus between Dawood Ibrahim’s D-company and politicians after the 1993 Bombay Blasts.
He is skeptical whether Chhota Rajan’s interrogation will yield any fresh evidence or help bring back Dawood Ibrahim to India.
He believes that much of what Chhota Rajan knows about Dawood’s operations is already contained in India’s dossiers to Pakistan.
some who later joined the NCP. When a section of the media published details which were there in the annexure, it was taken to court. The media was forced to withdraw the story, as the IB refused to acknowledge that it had filed such an input and the government denied the existence of the annexure. Sources say Rajan could now fill in details of various transactions that took place between select politicians and D Company operatives. This could be exploited politically. Also, Rajan, after he broke off from Dawood, launched himself as the patriotic “Hindu don” who was ready to take on Dawood Ibrahim. In his new avatar, he forged links with sections of the Shiv Sena.
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There is much speculation in political circles in Maharashtra whether some of his association with members of that party will surface. More importantly, would it be used to restrain the belligerence of the Sena, which has been sharply critical of the BJP government in Maharashtra even though it is an alliance partner?
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s for the Mumbai police, it is an open secret that some of its officers had links with the D Company in the 80s. But in the post ’93 blasts period, there was a clear divide between those who switched allegiance to Chhota Rajan and those who remained in the Dawood camp. According to a senior police official, Rajan would target
Farid Tanasha, operative with Chhota Rajan’s gang
As part of an IB plot in 2005, he was preparing to leave for Karachi to kill Dawood when he was picked up by Mumbai’s crime branch. those who acted against him and his allegations, if leaked to the media by those interrogating him, could be damaging even if they were baseless. Two senior retired police officers have openly said that Chhota Rajan may not have anything new to offer by way of evidence against Dawood Ibrahim. Former joint commissioner of police, Mumbai, YC Pawar, famous for having hounded gangster Vardarajan Mudaliar out of Mumbai, has pointed out that any fresh evidence on Dawood may not be forthcoming from Rajan. Also, he says that his interrogation is not likely to help bring back the elusive don who now operates from Pakistan under state protection and patronage.
Joginder Singh, ex-director of the CBI, candidly observed on TV that much of what Rajan knows about Dawood’s operations is already contained in the dossiers that India frequently sends to Pakistan to secure the don’s arrest and deportation. Apparently, Rajan has been in constant touch with the Indian intelligence and his inputs have been put on record by the agencies. According to reports, so closely did he work with Indian intelligence that in 2005, two of his men were used by IB to carry out a plot to kill Dawood in Karachi during the wedding of his daughter Mahrook to cricketer Javed Miandad’s son. Vicky Malhotra and Farid Tanasha, the two operatives of the Rajan gang, were in Delhi preparing to leave for their mission to Karachi when they were picked up by a Mumbai crime branch team. At the time of their arrest, they were in the company of a senior IB official who is currently someone prominent in the national security apparatus. Rajan claimed that the plot was thwarted at the behest of Dawood Ibrahim by the Mumbai police. The incident is being informally cited as one of the key reasons why all the cases against Chhota Rajan have been transferred to the CBI. According to insiders, the Mumbai police has been kept out of the investigations because the center wants to have a grip on it. Both the opposition parties in Maharashtra—the Congress and the NCP—have objected to the Mumbai police being marginalized. “Why now is he (Rajan) being taken to New Delhi? What is their strategy? All major cases, including journalist Jyotirmoy Dey killing and the Pakmodia Street firing, shall be handled by the CBI. Do they doubt our police’s capabilities? It is demoralizing the Mumbai police force,” Nawab Malik, the NCP spokesperson, told the media. Similar objections have been raised by the state Congress. One has to wait to see how the Rajan story plays out in the next few weeks. But there is a lot more that he knows about the D Company and its friends, including politicians, than meets the eye. He is also pliable enough to make revelations that suit his interrogators. Will that be one of the collateral benefits of bringing him back to India? IL
There is much speculation in political circles in Maharashtra whether some of Chhota Rajan’s association with members of the Shiv Sena will surface. More importantly, would it be used to restrain the belligerence of the Sena which has been sharply critical of the BJP government in Maharashtra?
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INTERVIEW/ Romila Thapar
“When BJP is in power, strength is given to the RSS interpretation of history”
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ince the BJP came to power in 2014, several issues like attack on minorities, communal violence, love jehad, re-engineering of public institutions, caste atrocities and attacks on public intellectuals by the brigade of hardline fringe Hindutva forces have occupied public debate. After protests by writers, artists, scientists and filmmakers, several historians have expressed concern about the “highly vitiated” atmosphere prevailing in the country. All this in the space of a month. Historians maintain that the current trend is particularly worrying. “What the regime seems to want is a kind of legislated history, a manufactured image of the past, glorifying certain aspects of it and denigrating others.” India’s foremost historian ROMILA THAPAR, who has recently come up with her latest work, The Public Intellectual in India, talks to MURALI KRISHNAN about the outburst against intolerance and what this means for India. 56
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It seems as if the government is not doing enough to rein in these elements that seem to have run amok. Is the menace of cultural intolerance growing? There has been a concern over some years now about the kinds of threats that various fringe groups have been making to people who make rational and sensible statements about the way society should go. Some of us have been protesting all over lives over various things which we regarded as “illiberal”. There has been an increasing sense in the last two years that the space for liberal discussion in the country is getting narrowed. This has become very acute in the last one year, as there has been incident after incident, of threats, assassinations, lynching, of banning of books or suggestions for burning books. In a sense what we have experienced is what people called the tipping point—that it just accumulated upto a point where suddenly people could not hold back anymore. The government does not seem to be bothered by the attacks on the intelligentsia or their protests. They are calling it a “manufactured rebellion”. That is a rather confused expression. Why do I say this? Manufacture is something which you make with your hands. It’s solid, it is tangible. There is nothing ethereal about it. It is absolutely there. A protest which is spontaneous and comes from every part of the country and virtually every profession cannot be manufactured. It has ignited people’s feelings. Also, to call it a rebellion is very absurd
because a rebellion is essentially against the state. You want to change the state. We are protesting, we don’t want to change the state. We are protesting against the conditions of society which have come about because of a weakness of governance. We appealed to the president to do something to salvage the situation and make Indian society again without fear, violence and civilized.
As a historian I have led two lives. One is writing reasonable, history. And the other is fighting against these elements who keep on saying the most absurd things about Indian history.
Do you see a pattern to these attacks? Is there an orchestrated move on the part of the government to allow these elements to have a free reign? I don’t know, I can’t speak for the government. I do argue that from the kind of election results of 2014, it’s clear to bodies like the RSS (BJP’s ideological mentor) and the Sangh Parivar that it is now or never! They are not going to have this great opportunity soon again. So they are going to make the most of it, doubtless. Now, if they are going to make the most of it, they will convert a population of people, who would otherwise have to be critical thinkers, into followers of one ideology. History has seen this in other parts of the world. And the analogy that I can think of is the Cultural Revolution in China. It was exactly the same. The ideology was handed out and you had to conform to it. There were dissidents but they were quiet and silent. Twenty years later, when
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INTERVIEW/ Romila Thapar
the Cultural Revolution was overthrown, it took about a generation for people to return to thinking in a free, liberal way. And my fear is that is precisely going to happen if there is success in imposing a single ideology. Do you see civil society convulse further and more protests breaking out if freedoms are curtailed? I think it depends on what activities these fringe groups indulge in. If their activities continue to be what they are at the moment and we have these weekly dramas of what is going on, then I think there will be greater protests. People will get increasingly fed up. They will think that here is a government that we have voted for and which we support and there was this great promise of development. And everyone is waiting for that development. If that development does not take place and is replaced by repeated incidents of a very uncivil kind, there will be people who will get up and say, where is the governance?
If your research institutes are going to be controlled by political ideologies, whether from the Left or Right, then you are saying goodbye to research.
How do you view the rewriting of history and the “cleansing” of institutions with the so called “cultural pollution”? As a historian I have led two lives. One is writing reasonable, rational and sensible history based on facts and evidence and arguments that are logical. And the other is fighting against these elements who keep on saying the most absurd things about Indian history and this specifically applies to ancient Indian history. When you have people believing that we had airplanes in 3000 BC and plastic surgery and stem cell therapy… you have to say somewhere it does not work like that. There is a problem here. We have been fighting this battle over history ever since I started teaching in the 60s’ and it has been an ongoing battle. When the BJP comes to power, strength is given to the RSS interpretation of history and when it is voted out, we come back to a normal historical procedure. But this does not stop the RSS and its followers from abusing us
UNI
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GATHERING CLOUDS (Right) Filmmakers return their national awards protesting against threat to freedom of expression (Facing page, bottom) Right-wing protest against Author Shohbaa De for her stand against compulsory screening of Marathi movies in Mumbai cineplexes
in the most venomous and horrible terms. But we have accepted this abuse, set it aside and gone on to write history that is viable. You make a case for cultural and academic institutions which are government financed and controlled to be made autonomous institutions run by professionals, as is the case in most countries. Why? This has been going on for a long time. Many of us have felt that ever since these councils, academies and institutions were set up there was just too much governmental interference in what is the research being done and what are the theories being produced. And so in 2004, when the Congress party came back to power, a whole group of us got together and agitated very strongly, saying these institutions must be made autonomous. They have to be run by professionals concerned with that specialization. This was totally ignored by the Congress party and it was totally ignored by the BJP. But the crux of the matter is if your research institutes are going to be controlled by political ideologies whether from the Left or Right, then you are saying goodbye to research. You talk of the role of public intellectuals in giving an alternative voice to the nation. Can you elaborate? This was something I wrote a year ago, when there was silence on the part of public intellectuals. And it was in some ways ironic that my book The Public Intellectual in India was published the
A protest which is spontaneous and comes from every part of the country and virtually every profession cannot be manufactured. It has ignited people’s feelings. very week when these protests started. So people began teasing me, saying my book had become redundant because what you were asking for has actually happened! What I meant was that in all the institutes, people did not demand from the government autonomy that they should have. There was a complete acquiescence in whatever was being handed out to them. The result was that you had isolated pockets of researchers who were doing independent and excellent work and a large body of people who were sitting quietly and following what was required
of them. This was what angered me a year ago and I made this plea that would make public intellectuals speak up, break their silence and occupy some kind of liberal space. What will happen if nothing is done to stop these hotheads and stop such a drift? If nothing is done I see two areas where there is a big crisis coming. One is education. What kind of education are you going to give students and children? We understand by education that it is the ability to acquire information and the ability to critically inquire into existing knowledge. This is not being done by any means. If it continues like this, we are going to produce a generation of people who will not be thinking about the essentials of education. The second area where I suspect trouble is the area of civil laws because people are going on saying that what needs to be attended to is the uniform civil code in which the Muslim Personal Law will be annulled. But my position is if we were to have a uniform civil code and if we were to go by the constitution, we have to reconsider all religious caste laws as they exist in the country. IL INDIA LEGAL November 30, 2015
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FOCUS/ Brain Fingerprinting
Picking a Criminal’s Brain Brain fingerprinting is a new tool that is expected to change the face of the criminal justice system. While it is used abroad, in India, investigators would need the court’s permission to use it to probe crimes By Kaushik Joshi in Ahmedabad
BREAKING NEW GROUND A trial session of brain fingerprinting
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NEW technology will bring criminals under the scanner literally. While they are often one step ahead of the police, a new forensic tool will trip them and help them get convicted or freed. This technology is the brain fingerprinting (BFP) developed by Dr Lawrence Farwell, chief scientist at Brainwave Science, US, whose research helped paralyzed patients communicate to a computer via brainwaves using a speech synthesizer and
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control robots. Incidentally, the BFP technique can also be used to evaluate the effectiveness of advertisements and early detection of Alzheimer’s and other cognitively degenerative diseases. ELECTRICAL SIGNALS This tool detects concealed information stored in the brain by measuring the electrical signals emanating from it. It thereby helps to identify the perpetrator of a crime or exonerate those who are innocent. The subject is shown pictures or words on a computer and his response to the stimuli
is recorded. Conventional fingerprinting and DNA testing match physical evidence from the scene with evidence found on a culprit. This is uncovered in only one percent of crimes. However, brain fingerprinting is applicable in 60-70 percent of the same cases, giving an edge to forensic science. Thus, it can have a lasting impact on the criminal justice system. India’s first BFP forensic laboratory was set up recently when Ahmedabad-based Raksha Shakti University (RSU) signed an MoU with Brainwave Science LLC, Massachusetts, US. This University was established in 2010 to impart education and training in internal security. Brainwave Science trained 25 people over a five-day workshop and these included IPS officers, faculty of Gujarat Forensic Science University, CBI officers and faculty and research scholars of RSU. The training was imparted by Brainwave Science’s Richard Keifer, former senior manager at the FBI; Raymond Thair, former senior officer at the FBI and Kimi Ko, senior application trainer. “Initially, we will have validation during which we will check reliability and consistency of this technology in the Indian context,” says Bijen Zachariah, a research scholar and facilitator in the lab. His brother, Bibin, also a research scholar, says: “All this technology requires is an air-conditioned room with low-light and no shadow to avoid maximum error for better result.” The BFP system is ergonomically designed, portable, bulletproof and fire-proof and the software is incorporated into the computer. QUICK SIGNALS The BFP technology uses EEG to detect whether specific information is stored in a suspect’s brain by measuring electrical brainwaves and recording a response to it known as P-300 MERMER (Memory and
Success Stories Brain fingerprinting (BFP) was instrumental in bringing serial killer James B Grinder to justice. Dr Lawrence Farwell conducted the BFP test on Grinder in August 1999. The test proved that information stored in his brain matched the details of the murder of Julie Helton. Grinder then pleaded guilty to the rape and murder of Helton and also confessed to the murders of three other women. As against that, thanks once again to Dr Farwell’s test, Terry Harrington who was convicted for murder and spent 22 years in prison, was exonerated and freed. Farwell proved that the information stored in Harrington’s brain did not match the crime scene and matched his alibi.
What makes the BFP technique a winner is that it is the brain’s fingerprint and eliminates emotional aspects. This is unlike polygraph tests which rely on skin response (sweating), respiration, heart rate and blood pressure. ICONIC WORK Dr Lawrence Farwell, chief scientist, Brainwave Science, US, who developed the brain fingerprinting technology INDIA LEGAL November 30, 2015
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WHAT IS THE TRUTH? (Clockwise from right) Rajesh and Nupur Talwar, parents of the slain Aarushi Talwar; Sheena Bora who is alleged to have been murdered by Indrani Mukerjea
Crime-related information only the perpetrator would know. If the suspect recognizes what’s being shown on screen, a P-300 response will occur. A processor digitizes these signals and feeds it into the application for further detection. The data gathered is then transferred to a cloud server for analysis and computation. The end results are categorized as “Information Present” and “Information Absent”. A conventional polygraph relies on flashes of sweat which is a physiological reaction (panic) when one lies. Thus, brain fingerprinting scores over traditional forensic techniques.
If the suspect recognizes what’s being shown on screen, a P-300 response will occur. A processor digitizes these signals and feeds it. 62
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Encoding Related Multifaceted Electroencephalographic Response). In 1965, scientists discovered a distinct surge of electrical activity in the brain when a person saw something familiar, usually arriving 300 milliseconds after the object was revealed. So it was called P-300. It works by attaching an EEG headset equipped with sensors to a person’s scalp. Then the computer screen flashes crimerelated images, words, phrases, audio and videos for a fraction of a second. This leads to electrical activity in the person’s brain which can be read and is represented by different colored lines. Three types of information are analyzed: Information that the suspect knows, though he may not have committed a crime. Information not known to the suspect.
NO MANIPULATION Ankita Patel, 24, a research scholar at RSU, says: “We have a forensic technique called BEOS (Brain Electrical Oscillation Signature Profile), but BFP scores over it since there are no false positives and false negatives and the suspect can’t manipulate in the test.” Nirali Jasani, 24, another scholar, says: “BFP is the greatest thing ever in catching culprits. It can be used in petty crime cases also.” While validation of the BFP technique is underway, RSU director Dr Shivarathna Vaya, says: “Once we begin working as consultants, we could cover even sleeper cell suspects to ferret out information in terrorism-related cases. But investigating agencies have to get the court’s permission for the test. Put simply, we are like a pathological lab.
Security agencies have to approach us with due references.” Bijen says the BFP technique can be used to crack cases like the Sheena Bora murder, Aarushi case and Sister Abhaya case (Catholic nun found dead in a convent in Kottayam, Kerala). What makes the BFP technique a winner is that it is the brain’s fingerprint and eliminates all emotional aspects. This is unlike conventional polygraph tests which rely on skin response (sweating), respiration, heart
Brainy Pursuit
Her suaveness, warmth and patience would hardly make one believe that she has had a three-decade stint within the stiff routine and rigor of a forensic science lab (FSL). Dr Shivrathna Lalit Vaya, 60, who is the director of RSU, hails from Karnataka but feels at home in Ahmedabad. She has brought a flurry of activity there, having set up the forensic psychology division in 1988 and could well be called the pioneer of this steam of forensics in India. Her experience straddles crime scene profiling, behavior profiling, brain signature profiling, suspect detection system, narco analysis and layered voice analysis. She has been involved in nearly 5,000 cases dealing with CID (Crime), CBI, IB, Revenue and ATS from various states. She has also appeared as an expert witness in criminal trials in session courts in other states. Some of these cases were the Nithari killings, the Aarushi-Hemraj murder case, Ujjain serial killings and lion poaching in Gujarat. Her work has won her accolades.
rate and blood pressure. Thus, the BFP is more scientific as it picks up only the brain’s electrical signals before the suspect has time to manipulate the output. A bump in electrical activity is recorded between 300-800 milliseconds after the suspect has watched the stimuli. Authorities claim that BFP has proven to be 99 percent accurate in tests by the FBI, the CIA and the US Navy. Not just criminals, BFP can prove crucial in matters of counter-terrorism and national security. The technique can also be used in cases of violent crime, organized crime, drug trafficking, human trafficking, cyber crime, espionage, kidnapping and rape. However, some observers are worried about the effect it could have on the legal system. Prof Jane Moriarty, professor at Duquesne’s School of Law in Pittsburgh, US, feels that this tool is not yet ready for the courtroom as not enough testing has been done on it. She feels that laboratory testing can’t reliably replicate the brain activity of a suspect being interrogated for an actual crime. Prof Moriarty is also concerned about neurologically atypical suspects like psychopaths or the mentally ill. “It is not clear how scientists can control those factors. They could leave a dangerous loophole if the method is more widely adopted,” she argues. These are some challenges that BFP will face. IL
UNDERSTANDING CRIME (L-R) Research scholars Ankita Patel and Nirali Jasani
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AVIATION/ Rules/Disabled Persons
Wheeling & Dealing in the Air Travelling is often a Herculean effort for the disabled. What makes it worse is the insensitivity of the airlines and the delay in getting them wheelchairs. Can tighter regulations make them answerable? By Bikram Vohra
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LL of us at airports see passengers in wheelchairs. The infirm, the injured, the elderly. More often than not, their travails are multiplied. One of the areas that has become contentious is of giving this segment of travellers second-rate status and treating them so. As the age of air travellers increases exponentially, the wheelchair demand ups to as high as 10 percent of passengers, with about six to eight per 150 passengers having disabilities. The demand from tour groups for retirees can rise to nearly 20 to 30 per 150 passengers and cause huge boarding and disembarkation problems.
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NEEDLESS DEMANDS? Airlines defend themselves by saying that lazy, shiftless passengers wreck their planning by suddenly demanding wheelchairs. So, 20 legitimate requests can balloon into 50 last-minute demands. The worthy get lumped with the lazy. Things came to a head on the issue when a video went viral recently. An elderly couple were stranded in an Air India aircraft recently for 70 minutes after it came into Mumbai from Hyderabad because there were no wheelchairs. Their demand forms for assistance at disembarkation were correctly filled up and though the crew stayed on the flight, it seems the system was indifferent to their plight. The couple just kept sitting in the 37 degree sauna with the crew. Rudeness and indifference towards
passengers is not new. A frequent flyer, Meeta Chopra, wrote to this author in response to a video he had put up of the stranded couple: “This is a normal procedure in Mumbai. We have also been stranded similarly. We were going from Delhi to Mumbai and then the flight was to carry on to Goa. At Mumbai airport, they could not find a chair lift so all wheelchair-bound passengers and their attendants were left on board, while Goa-bound passengers were taken to another plane.” Poonam Kapoor, the sister of film starpolitician Vinod Khanna, also narrates her experience: “We went through this too...waited for wheelchair for 45 minutes after landing ’coz they said they did not have enough of those to cater to the patients requiring it.”
All too often, airlines outsource the special needs aspect to a third party and lose control over efficiency, paying the price in reputation for their vendor’s attitude. This is a quote from an American passenger treated like… dirt. “Are THE HANDICAPPED PEOPLE considered 3rd class people. There is any law ordering that some consideration must be shown to them? Driving, we have special assigned spaces to park, flying and paying pretty good money, nothing. We are treated like…well you know what!!!” The above incidents underscore the prejudice or indifference towards passengers
PRESSING NEED (L-R) A passenger on a wheelchair at an airport counter; a handicapped man using a ticketing kiosk; a disabled person getting chair-lifted to the aircraft
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UNFAIR TREATMENT (Right) Anjalee Agarwal, suffering from muscular dystrophy, was a victim of harassment by the staff of Jet Airways
DGCA Guidelines According to the Directorate General of Civil Aviation’s Civil Aviation Requirements (Section 3, Series ‘M’, Part I), these are some of the rules for airlines to follow in the case of disabled persons: No airline can refuse to carry persons with disability or reduced mobility and their assistive aids/devices, escorts and guide dogs if the persons or their representatives have informed the airline of their requirement(s) at the time of booking. While making bookings, passengers with disability have the option to select the required facilities, which he/she will require during the journey. It shall be the responsibility of the persons with disability or reduced mobility to notify their needs at least 48 hours before the scheduled time of departure so that the airline makes necessary arrangements, mobility equipment and disability aids, and requirement of escort. For embarkation/disembarkation and in-flight use, airlines shall have provision of onboard aisle wheelchairs for persons with disability or reduced mobility not carried on stretchers, wherever possible subject to limita-
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tions of aircraft. The onboard aisle wheelchair shall conform to specifications as laid down by Disabled Persons Transport Advisory Committee (DPTAC), UK. Airlines should obtain necessary information about the specific requirements of such persons at the time of booking. Once the ticket is confirmed no further enquires shall be made. Airlines, including their agents, have to make available in accessible format, on their website, the safety rules for persons with disability. This includes any restrictions on their carriage or on the mobility equipment due to the size of aircraft. They cannot discriminate the persons with disability in providing access for internet ticketing, special/discounted fares, time limit for holding the bookings, reservations on telephone, etc. To ensure safety of aircraft operations, the maximum number of nonambulatory persons with disability or reduced mobility permitted to travel in a single flight cannot be more than the number of cabin crew except when such passengers are accompanied by trained escorts.
with special needs. Airlines promise to go that extra step but fail all too often to live up to that expectation. MONEY TALKS On arrival in Delhi last month, I noticed there was a melee outside the door in the jetway as seven or eight passengers fought for the six wheelchairs that came up with scruffy attendants who couldn’t care less. One lady was overheard telling them that the guy who came with her would get tipped. You guessed right... money talked and walked. The others had to wait. It is no unusual sight to see people left in their seats like unwanted debris while they helplessly wait for attention. Rudeness comes with the territory. While it is exceptionally rare in Business and First Class, Economy Class passengers pay a price in facing discourtesy, and most of it is practiced by the ground staff. Cabin crew are universally acclaimed as being a bit nicer. They don’t like the absence of wheelchairs any more than the passengers because they cannot check out till the cabin is emptied of passengers. All too often, when the engines die out, the infirm passengers have to sit helplessly in the heat or the cold. According to the promise and the premise of the contract, the airline promises to fly an
individual from point A to point B with security and safety. Several class action suits have been predicated to a failure to keep that promise whether the plane is terminated by pilot error, an attack from a third party, hijackings or Controlled Flight Into Terrain. To give a current example, in the Metrojet crash in Egypt, the flight was not completed, hence the airline is liable. Here comes the legal rub. In the case of the stranded couple, the airline landed safely at Point B. But is its obligation over? If the passenger is medically unfit and requires a wheelchair, then a Medical Information form needs to be filled. So says Air India. AIRLINES’ RESPONSIBILITY And this is where it begins to get sticky. The airline is responsible until the passenger has deplaned because till that moment, like with diplomatic territories, the space is the carrier’s and the journey not completed. But, all too often, airlines outsource the special needs aspect to a third party and lose control over efficiency, paying the price in reputation for their vendor’s attitude. This does not legally make them less liable. The accountability at Point B is not yet over. The Airports Authority of India washes its hands off the whole thing, stepping in only where an incident which occurs within the confines of an airport calls for aid. The most stringent laws are in the US and Europe. Both US and foreign air carriers are subject to Air Carrier Access Act (AACA) requirements generally prohibiting discrimination in the provision of air transportation and related services (14 CFR 382.11(a)(1) and (3)). If an airline provides ground transportation services to its premium customers (e.g., First Class passengers or elite frequent flyers), the Aviation Enforcement Office would regard the failure or refusal of an airline to provide “equivalent service” to a passenger with a disability in connection with a covered flight in the same class of service as a violation of these provisions. Sounds good but it does not work that way. Economy will never get it so good. Ellen Brehm, a retired nurse, is now 83. Her flight landed at Newark at about 1:20
A passenger of Finnair AY832 from London to Helsinki was reportedly left bleeding on the tarmac for 29 minutes, with a jaw bone fracture, when she fell down while de-boarding. am. There was no wheelchair. She was asked to get off the plane because the crew had to leave the plane and their duty time was over. She was left stranded for 35 minutes on the jet bridge with no one doing her any reverence. “Here I am, at 2 am., 83 years old, all by myself,” Brehm says. “There wasn't one person in this whole huge airport.” The US has a carrier act under which there is a provision: “Airlines are obligated to provide free, prompt wheelchair assistance between curbside and cabin seat to comply with the 21-year-old AACA, an anti-discrimination law.” LESS OBLIGATION In Europe, airports have a legal obligation under EU Regulation 1107/2006 to assist disabled travelers. It does not always go as well as the given pledge. Remember the Finnair case? Here is the capsule report sent out by a news agency: “An Indian passen-
HOSPITALITY OBLIGATIONS (Below) Crew of Finnair
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ger of Finnair AY832 from London to the airline’s hub Helsinki was left bleeding on the tarmac of the airport for 29 minutes, with a jaw bone fracture, a deep gash and four teeth broken when she slipped and fell down while de-boarding on September 15, her family says.” In response, Finnair said in an e-mail that it confirms a passenger was injured as she tripped on the stairs while de-boarding her flight at Helsinki. “We’re extremely sorry about the accident and wish the passenger in
Cold-shouldered By Airlines In 2007, NGO activist Rajiv Rajan, a cerebral palsy patient, was not allowed to board an Air Sahara flight from Chennai to Delhi. Despite his case getting a high degree of exposure, the treatment of the disabled has not improved. In
2008, Nand Paramathma, 70, who had suffered from a head injury in the past, was on a SpiceJet flight from Bangalore to Delhi. When he stood up from the wheelchair to climb the aircraft ladder, he wasn’t permitted. SpiceJet ground crew held him back for six hours to figure out why he wanted a wheelchair when he could walk. In
2012, Jeeja Ghosh, a teacher travelling from Kolkata to Goa, was offloaded from a SpiceJet flight as the pilot was not comfortable with a handicapped passenger flying unaccompanied. Ghosh later appealed to the Supreme Court,
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which sent a notice to the airline. In
2012, Anjalee Agarwal, who suffers from limb girdle muscular dystrophy, was travelling on a JetKonnect flight from Delhi to Raipur. Upon arrival, she was not only denied a wheelchair but also threatened that she would be bodily lifted by male loaders. In 2013, when Suranjana Ghosh Aikara was travelling from Mumbai to Delhi her disability certificate was ignored and she was forced to strip, remove her prosthesis and subjected to offensive remarks. In reality, all that was required was frisking her leg and an explosive trace detector scanner test. In
2013, entrepreneur Sanjana Goyal, who had muscular dystrophy, was travelling from Chandigarh. Security officials allowed her to go through the security check sitting in her wheelchair but asked her to pay `10,000 extra because her wheelchair was being counted as luggage.
question a speedy recovery,” the airline added. In India, the 1995 Disability Act, which requires government job slots, accessibility to public places and free education for the disabled, is at best a flimsy document. No one has really ever gone to court and sought legal redress. After several “unfriendly” experiences, former journalist Javid Aqib has spearheaded a campaign to end discrimination. As of now, the issue is unresolved. Take Jet Airways. In February 2012, the airline was accused of a discrimination complaint. Anjalee Agarwal, a patient with muscular dystrophy, complained of “discriminatory harassment at the hands of Jet Airways personnel”. On the second leg of her flight, she was “manhandled by untrained personnel despite an aisle chair being available”. She was forced to sign a waiver of non-liability by the carrier…she wanted the nightmare to end and surrendered. Who needs more hassles? Most shocking was this carrier charging as high as $50 from passengers flying on Gulf routes for wheelchair assistance. This scandalous conduct against the provisions of the rules never got attention because the media never picked it up and no pressure was placed on the airline to penalize it. What this carrier ignored is that compliance with anti-discrimination legislation and wheelchair assistance is free of charge at European, Indian and US airports and these are grounds for criminal negligence. Last week, India announced plans for a new network of hub and spoke regional routes. The proposal to widen the Indian aviation map by bringing down the cost of flying to ` 2,500 per hour of flight is laudable. The statement by civil aviation secretary RN Choubey said: “The mandate from the Prime Minister was to bring out a policy which will make it possible for the masses to fly. That is the message which we set out to work with.” While all this is fine, it might be salutary to get wheelchairs and improve the current status. Airlines only win by default because the hapless passenger wants to go home. Even if he has to crawl the last few miles. IL
INTERNATIONAL BRIEFS
Legal battle over Koh-i-noor diamond A
legal challenge demanding the return of the famous Koh-i-noor diamond is being filed against Queen Elizabeth II. Mounted by a group of Indian businessmen and actors, the action coincides with Prime Minister Narendra Modi’s visit to the UK, where he is scheduled to be hosted by the Queen at Buckingham Palace. The 105-carat diamond, believed to
New US law on wounded warriors
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bill sponsored by US representative Stephen Lynch, aimed at giving federal workers who are also veterans, extra time off to seek medical care, was signed into law by President Barack Obama, reports Boston-based WCVB news channel. The new law aims to provide employees with 104 hours of what Lynch called “wounded warrior leave” during their first year in the federal workforce so that they can seek medical treatment for service-connected disabilities without being forced to take unpaid leave or forgo their appointments. The Massachusetts Democrat said the new law reflects Congress’ gratitude and appreciation for the hardship and sacrifices made by veterans, and the effort to pass the bill was a bipartisan one. The measure was passed by the Senate unanimously.
have been mined in India 800 years ago, was presented to Queen Victoria in 1849 by the then-British governor-general, the Marquess of Dalhousie. it is now at the Tower of London. The UK government has previously rejected demands for the return of the Koh-i-Noor, and in 2013 Prime Minister David Cameron said it would be "illogical” to return it.
Stumbling block to Schengen
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kraine's parliament frustrated the country's chances of visa-free travel to most EU nations by blocking legislation that would have banned discrimination against gays in the workplace, reported Yahoo News. The pro-EU leadership that replaced the Moscow-backed president last year has made it a priority to join the Schengen zone— a club of EU countries that allows visa and passport-free travel to more than 400 million people. But the European Union said in 2010 that this depends in part on Kiev adding a clause
to its Soviet-era labor code that would ban all forms of discrimination against gays at work. Although Ukraine decriminalized homosexuality in 1992, anti-gay prejudice is high in parts of the erstwhile conservative eastern bloc.
Footballers charged with treason
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Honor for legal reporters
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he Dallas Morning News team won the Dallas Bar Association’s grand prize for legal reporting at the 32nd annual Stephen Philbin Awards. This marks the team’s second win in a row, according to the newspaper. Sarah Mervosh, Diane Jennings and Selwyn Crawford were honored for their year-long “Deadly Affection” series. Their work detailed fatal domestic violence in Dallas, Collin, Rockwall and Denton counties of Texas.The bar association credited the series for leading Dallas County to confiscate guns from domestic abusers.
ive Nepali footballers have been charged with treason over allegations of match-fixing during qualifiers in 2011 for the World Cup, reports The Hindustan Times. Former captain Sagar Thapa and goalkeeper Ritesh Thapa, along with three others, were arrested last month. Police said significant sums of money were found in their bank accounts from suspected match-fixers in South East Asia. The athletes allegedly deliberately lost a number of qualifiers.
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GLOBAL TRENDS/ China / Two-child Norm
Move Over C Little Emperor! China’s two-child policy is a landmark decision meant to bring more people into its fast-depleting work force. But are Chinese couples ready to take on this burden? By Shastri Ramachandaran in Beijing 70
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HINA’S decision to jettison its 35-year-old draconian one-child policy in favor of a new, universal two-child norm has farreaching implications. Even as ex-perts on demography, eco-nomy, politics and social policy debate its pros and cons, there is agreement that the policy will change much, not only in China, but also in the world. The first evidence of this was, predictably, visible in the stock market—share prices of companies which make baby food and nappies soared, bringing cheer to producers in the baby and mother-care industry. Big names in the recreational business were upbeat. Typical of this was Walt Disney, which is getting ready to open a theme park in Shanghai, applauding the two-child policy as “good timing”.
On present reckoning, 90 million couples are eligible to have a second child. But it is expected that not even 10 percent of the eligible may exercise this option.
Photos:UNI
GREAT SIGNIFICANCE The October 29 announcement ending the one-child policy, which gained notoriety for its coercive implementation, is a landmark event of immense economic and political significance. In fact, some observers say this decision is almost as important as Deng Xiaoping’s signal to open up the economy for reforms in 1978. It was the overriding compulsion to ensure the success of Dengist reforms that dictated the adoption of the one-child policy. However, there were excesses to China’s onechild policy—forced abortions and sterilizations, denial of residence permits and jobs and exclusion of “illegal” children. These affected a wider section of people than the thuggishly executed population control Indians suffered during the Emergency. The Communist Party of China (CPC) credits the one-child policy with preventing
40 crore (400 million) births in the last 35 years, thus contributing to China’s turbocharged growth since the 1980s. The reason why the two-child policy is being widely welcomed has to be seen in this context— strong-arm methods of enforcing Deng’s birth control policy will become a thing of the past. The horrors of that policy are now being openly recounted in the Chinese media. What emerges is that people feel somewhat liberated and freed of lurking fear, about which they could not speak in public. This life-changing decision for millions seems to be a positive one and which the state could not have avoided for much longer.
LONELY... FOR HOW LONG? (Left) Chinese kids might finally get a sibling for company (Above) The Chinese population is ageing fast, increasing the burden on its economy and youth
POLITICAL DECISION The decision is primarily political and its importance is underscored by the fact that the announcement was made in a communique released at the conclusion of a fourINDIA LEGAL November 30, 2015
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GLOBAL TRENDS/ China / Two-child Norm
ME AND ME ALONE A typical Chinese couple, doting on their single child
day conclave—Fifth Plenum—of the CPC’s 18th Central Committee held in the last week of October. The main purpose of the plenum was to finalize China’s 13th Five-year Plan— the first since Xi Jinping became president— and to map the road ahead for the world’s second largest economy, which has had to contend with a falling growth rate in the last few years. China now aims to strive for a GDP growth rate of 6.5 to 7 percent during the five years of this Plan ending in 2020. In giving up the one-child policy, the leadership has also tacitly revoked the political
sanction that was presumed for its coercive enforcement. Questions remain whether there would be a liberal interpretation of the two-child policy. Will this put an end to discrimination and deprivation that “illegal” children (who predate the new policy) and their parents were subjected to until now? The relaxation of the one-child rule began in 2013, but this did not apply to minorities and rural families. If either the husband or the wife was a single child, they were allowed two children. It was only a matter of time before the two-child policy was formally announced by the ruling party. However, the economic impact of this decision is unlikely to be borne out at least in the near term. China’s economic slow-down has raised concerns about its ambition of emerging as an all-round, “moderately welloff society” in the CPC’s 100th year. As the official China Daily observed: “These five years are likely to be make or break, and the country will either be mired in the dreaded middle income trap, or survive the pains of transformation and accomplish a sustainable economic rebirth.” An ageing population, with a decline in the number of those in the working age of 1659, has added to worries. The aged not only do not contribute to the labor force but are a drag on the productivity of those in the work-
VOICES FROM CHINA These are some Chinese opinions about the two-child policy compiled from various reports “We are very positive about the baby, infant and maternity industry. Sales of daily necessities, such as formula food and diapers, will rise; so will the demand for baby car seats and baby food processors.” —Liu Nan, founderCEO of Mia.com, which specializes in maternity and infant products
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“Ten years after my marriage, my husband and I wanted at least one sibling for our sixyear-old daughter. But we weren’t allowed to do that in the 1990s. Couples who went against the rules and had a second child lost their jobs. The second child also had no legal status. So we gave up on the idea.” —Yan Xu (name changed), a store keeper
“This policy has come too late for me. I have seen and heard what happens to women who have more than one child. It was so traumatic I never even thought about a second one after my daughter’s birth 11 years ago. Also, it is so difficult to raise a child. We had our grandparents to raise our daughter as both my husband and I work long hours. Age is also against me. Maybe, had we been younger, we could have tried. Our parents would have been thrilled to support us.” —Yao Ying, 40, who works with an NGO in Beijing
“I have a brother and my husband a sister. So it would be good to have company for my son. We can manage a sibling as we have the means and my husband’s parents are living with us. However, until rules and regulations under the new two-child policy come into force, it would be illegal to have a second child. I hope it happens soon, because I am just a few years away from turning 40.” —Zhang Xiaoping, a journalist
ing age group. This is especially so when young couples have to look after ageing parents in the absence of adequate social, structural or financial support from the state. A decline in the working population also means a decline in consumption and spending, which in turn, further weighs on an economy looking to boost growth through consumption, especially when exports are falling. AGEING FAST China’s ageing population, which was 110 million in 2010 is rising and is expected to touch 210 million in 2030. And by 2050, it is estimated to account for a quarter of the population. The UN reckons that between 2010 and 2030, China would be losing 67 million workers. Official statistics in China show that the proportion of the working age group peaked in 2010 (at 74.5 percent) and has been on the decline since 2011. Last year, 66 percent—916 million—were in the age group of 16-59. There is no way that the two-child policy can alter any of these facts in the short-term. Current evidence suggests that the prevalent demographic trend is likely to continue because of a lower fertility rate and also because only a small percentage of those able
Those born in the 1980s, and now in their mid-thirties, are unlikely to risk another child in a system where social security, including pensions, is far from adequate. and “eligible” are willing to go in for more than one child. In 2013, when the birth control policy was relaxed, an estimated 11 million couples were eligible to add one more to the family. But less than 10 percent (1.1 million)—not 2 million as expected officially—had applied to have a second child. On present reckoning, 90 million couples are eligible to have a second child. If the experience of 2013 is anything to go by, it is expected that not even 10 percent of the eligible may exercise this option. The bulk of those who go in for a second child may be rural families as they tend to have bigger families.
FUTURE IMPERFECT (L-R) Will these Chinese children be able to bear the burden of looking after aged parents? President Xi Jinping faced with not just falling growth rates but low fertility rates too
ADVERSE RATIOS Besides the fertility rate falling to 1.5 percent on average, another distressing fact is the sex ratio, where males outnumber females. Such an adverse ratio, as the Indian experience INDIA LEGAL November 30, 2015
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GLOBAL TRENDS/ China / Two-child Norm
WORKERS IN DEMAND Premier Li Keqiang meets workers at an automobile factory in Hefei
China’s ageing population, which was 110 million in 2010 is rising and is expected to touch 210 million in 2030. And by 2050, it is estimated to account for a quarter of the population.
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has shown, can have undesirable social consequences. These do not encourage expectations of a “balanced population gro-wth” required for an economic transformation. Besides, the ratio of children in the population is also falling. If one-child families are the norm, no-child families are increasingly becoming the fashion. Rapid urbanization has reinforced the one-child norm. Urban living is expensive, stressful and too restrictive to support large families. There are many deterrents to childbearing. Rising costs of housing, nursing and education, lack of adequate social, familial and state support for child-bearing alongside late marriages and more women joining the work force are only a few of the reasons for most couples opting for one or no child. More aggressive approaches would be required to reverse the trend and fuel population growth. The one-child policy also created the “Little Emperor Syndrome” of single children being pampered to the hilt by parents and grandparents. But this one child was king only until his parents retired, as then he and his wife (again a single child) would find themselves supporting both sets of parents with limited space and resources. Those born
in the 1980s, and now in their mid-thirties, are unlikely to risk another child in a system where social security, including pensions, is far from adequate. Many can neither afford nor want a second child because of the expenditure associated with it. It will not be easy to reverse the falling birth rate as many difficulties have to be overcome first. Making baby boomers of those born in the 1980s and 1990s cannot succeed unless the ageing population is provided for and taken care of. According to one report of the 13th Five-Year Plan, nearly 200 million have yet to be covered by the insurance plan for the elderly. China has a record of achieving targets and well before the stipulated date. However, when it comes to an increase of 30 million in the working-age population by 2050, it may well fall short of the target. China needs a baby boom. Yet it would be premature to expect it unless the CPC’s new population policy extends to correcting distortions in the population structure and forms part of a larger reform strategy focused on sustainable livelihood for all, including the aged. IL
—The author is an independent political and foreign affairs commentator
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HEALTH/ Diabetes/Biological Cure
Sweet Success Minus Syringe A new trial has transplanted islet cells from donor pancreas into a patient, leading her to produce her own insulin. This is a medical breakthrough and should be supplanted by more organ donation By Shobha John
W
PAINLESS CURE With the new medical advancement, Type I diabetes patients can do away with the syringe
HEN Anu Kumar, 70, a chronic diabetic from Delhi, heard of a trial which could lead to a biological cure for diabetes and make people like her insulin-free, she was hopeful. “I have been on insulin injections for the last 30 years. I inject myself on my stomach and sometimes it can be painful. It would be a relief if my body can be made to produce insulin.� Kumar is optimistic about a medical breakthrough achieved by scientists in the US. On August 18, 2015, Wendy Peacock, a Type 1 diabetic from San Antonio, Texas, underwent a minimally invasive procedure whereby islets cells (insulin-producing cells)
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from a donor pancreas were transplanted to her body, leading her to produce her own insulin naturally for the first time. This was part of a trial by the Diabetes Research Institute (DRI) at the University of Miami Miller School of Medicine. GALLOPING DISEASE This could well spell a new dawn for diabetics. It is estimated that every three seconds, at least one patient develops diabetes worldwide. In India, diabetes is an epidemic. There are 65.1 million diabetics and 77.2 million pre-diabetics in our country and more and more people are getting it. By 2035, India could have close to 109 million diabetics. Most have Type 2 diabetes, where the body gradually loses the ability to process
blood sugar, whereas those with Type 1 diabetes, which is hereditary, have their islet cells destroyed by the immune system. The US trial is being carried out only on those with severe Type 1 diabetes so that they can achieve insulin independence. DRI’s global network of diabetes researchers wants to develop a biological cure for diabetes by restoring natural insulin production and normalizing blood sugar levels for them. And it is in this regard that DRI received approval from the US Food and Drug Administration to go ahead with a Phase I/II clinical trial that will test islets transplanted inside a body. In the trial on Wendy Peacock, islet cells from the pancreas were put within a biodegradable “scaffold”. This is implanted on the surface of the omentum, a tissue covering abdominal organs and which serves as a transplant site. “The omentum is rich in blood vessels and so there is a better chance of success here,” says Dr Ambrish Mithal, chairman and HOD, Endocrinology and Diabetes, Medanta. They aren’t implanted in the liver as it could lead to inflammation. “They also can’t be implanted in the pancreas as this organ is actually a bag of enzymes and would end up digesting anything in it. The pancreas can’t be touched,” he said. The donor islets are implanted into the scaffold and combined with the patient’s plasma and thrombin (an enzyme), creating a gel-like material that sticks to the omentum and holds the islets in place (see picture). The omentum is folded over around the biodegradable scaffold. Over time, the body will absorb the gel, leaving the islets intact. Meanwhile, new blood vessels are formed, which provide oxygen and other nutrients to the cells. The scientists who made this possible are naturally thrilled. Camillo Ricordi, director of DRI reportedly said: “The first subject in our Phase I/II pilot BioHub trial is now completely off insulin with an excellent glucose profile. These are the best post-transplant results we’ve seen in an islet recipient.” BIOHUB, A MINI-ORGAN According to the DRI website, its researchers are focused on two platforms for a BioHub,
Biological Scaffold for Type 1 Diabetics The Diabetes Research Institute in Miami is doing novel trials to transplant islets, insulin-producing cells, in order to develop a BioHub, a bio-engineered mini-organ that mimics natural pancreas to restore insulin production in Type 1 diabetics
The DRI is testing the omentum, a tissue covering abdominal organs, as a new transplant site. The omentum, rich with blood vessels, can be easily accessed with minimally invasive surgery
The donor islet cells are combined with the patient’s own plasma and placed on the surface of the omentum
Researchers then add thromblin, a commonly-used enzyme. The mixture creates a gel-like material that sticks to the omentum and holds the islets in place
The omentum is then folded over around the biodegradable scaffold mixture. Over time, the body will absorb the gel, leaving the islets intact, while new blood vessels are formed
The Transplantation of Human Organs Act, 1994, restricts donation only to first degree relatives of the recipient. This has led to a severe shortage of organs. a biodegradable scaffold and a bioengineered scaffold. Both mimic the pancreas by giving islets space, oxygen and nutrients. It also prevents islets from clumping together. Incidentally, a BioHub is a mini-organ that mimics the pancreas to restore insulin. The bioengineered scaffold is a sponge-like disc compatible with the body. It is made of 10 percent silicone, while the rest is open space with tiny pores to house the islets. Incidentally, these islets are called the INDIA LEGAL November 30, 2015
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HEALTH/ Diabetes/Biological Cure
“Islet cells can only be got from donor pancreas. But with organ donation in India being abysmally low, there is a shortage of these cells. Though pancreatic transplants have been done with moderate success, they’re usually done on critical patients who also need kidney transplants.” —Dr Ambrish Mithal, chairman and HOD, Endocrinology and Diabetes, Medanta
Scary Scenario Every three seconds, one person develops diabetes worldwide India has 65.1 million diabetics and 77.2 million pre-diabetics By 2035, India could have close to 109 million diabetics Every year, 1.5 lakh Indians need either transplantation or dialysis Just 3,500-4,000 kidney transplants performed annually in India; 800 liver transplants done annually; 10 percent are from cadavers
Islets of Langerhans. These are clusters of cells, with each “islet” having 3,000 to 4,000 cells. A healthy adult pancreas will have some one million islets. There are several types of cells in the islet which work to regulate blood sugar. One of them, the beta cells, sense sugar in the blood and release the right amount of insulin so that normal levels are maintained. However, in the case of Type 1 diabetes, the immune system attacks these beta cells, destroying them. The body can no longer produce insulin, causing the patient to rely on those in the market. There are certain hurdles that remain in the making of the BioHub. The first is getting a regular supply of islet cells. “The cells can only be got from donor pancreas,” said Dr Mithal. “But with organ donation in India being abysmally low, there is a shortage of islet cells,” he said. Even in the US, organ donation is critically low—about 1,700 pancreases were available in 2014—and would hardly suffice for those with diabetes. “Pancreatic transplants have been done in the past with moderate success and are usually done on critical patients who also need kidney transplants,” said Dr Mithal. However, islet cells, he said, can also be taken from fetal, stem and animal cells, but these have not met with much success. ORGAN SHORTAGE Incidentally, it was only with the passing of the Transplantation of Human Organs Act,
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1994, that transplants could be done from brain dead donors. Earlier, only live donations were possible. However, the act prohibits the commercial sale of organs. It restricts donation of organs only to first degree relatives (immediate family) of the recipient. This has led to a severe shortage of organs, be it kidneys, liver, heart, lungs or pancreas. The second hurdle, like all transplants, is for the recipient to accept the cells from the donor without the need for immune-suppressants all his life. It is still too early to know how long the implanted cells will continue to produce insulin without the need for these drugs. Immune-suppressants are strong drugs which “suppress” the immune system and expose the patient to infections. Scientists are, therefore, trying to protect these transplanted cells by wrapping them in a tight coating and giving low-dose drugs only at the site of the transplant. Another issue with Type 1 diabetics is that as their immune system had attacked their islet cells, it leads to diabetes in the first place. This phenomenon is called “autoimmunity” and scientists are trying to see that it doesn’t happen again when the islet cells are transplanted to the omentum. This would make the whole exercise pointless. However, this trail is still a breakthrough in the field of diabetes and India would do well to watch out for it. IL
CAMPUS UPDATE
Workshop on labor law reforms
D
r Ram Manohar Lohia National Law University, Lucknow, and National Labour Law Association, New Delhi, are organizing a national workshop on “Labour Law Reforms” on November 23-24. The workshop aims to create a
forum to discuss the Industrial Relations Code and the Wage Code prepared by the government along with the draft labor code prepared by the National Labour Law Association.
CLS to organize “Energy Law” Moot Court event
C
ollege of Legal Studies, University of Petroleum and Energy Studies, is organizing the 6th Dr Paras Diwan Memorial International “Energy Law” Moot Court Competition, 2016. The competition will be held from April 7-10. The registration for
IUDF invites speakers
the contest closes on November 25. The event is held to commemorate the legendary Dr Paras Diwan, an acclaimed jurist and a writer who has a number of publications to his credit in the form of books and articles.
NLIU Bhopal to conduct biodiversity seminar
A
biodiversity seminar, Bio Sanctum 2016, will be organized by the Madhya Pradesh State Biodiversity Board, in collaboration with the Cell for Awareness and Research in Environmental Law Studies, National Law Institute University, Bhopal. The focus is the Biodiversity Act and Rules, especially in the light of the 2014 guidelines. The seminar will be held at the NLIU campus on February 6, 2016. The last date for submission of papers is December 1, 2015.
T
he Indian Union Debate Forum (IUDF) invites applications for the position of speakers for its inaugural edition to be conducted on December 12 in New Delhi. The IUDF is a students’ initiative undertaken with the aim of facilitating union-style debates modelled on the Oxford and Cambridge format. The debates will include a distinguished line-up of speakers comprising Ram Jethmalani, Mani Shankar Aiyar, Madhu Kishwar, Gautam Navlakha and Manish Tewari, among others.
Essay writing competition
R
ajiv Gandhi National University of Law, Punjab, has announced the 7th South Asian Essay Writing Competition on International Humanitarian Law which is being organized by the Center for Advanced Studies in International Humanitarian Law (CASH) in collaboration with International Committee for Red Cross, Regional Delegation, New Delhi. The theme of the competi-
tion is health care in armed conflicts. The last date for submission of entries is December 5, 2015. The contest is open for students from India, Afghanistan, Bangladesh, Bhutan, Iran, Maldives, Myanmar, Nepal, Pakistan and Sri Lanka.
— Compiled by Sumedha Grover INDIA LEGAL November 30, 2015
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FIGURE
IT OUT Only 5.6 percent of Indians have studied up to graduation or above. Delhi has the highest proportion of graduates among the states—16.4 percent. India boasts of 800 satellite channels, 242 FM channels and about a hundred community radio networks. The Indian media and entertainment sector is one of the best-performing ones in the country, having grown at the rate of 10 percent annually over the past five years, says a report jointly published by the Boston Consulting Group and the Confederation of Indian Industry. India has world’s third largest television viewership base (after the US and China), the world’s second largest print industry (in circulation terms) and produces the highest number of films worldwide (1950+ films produced in India in 2014). India has 250 million digital screens (including smart phones, tablets, laptops and PCs), which is more than the number of TV and film screens put together. With rising healthcare costs in developed countries, medical tourism in India is expected to grow from a current market size of US$ 3 billion to US$ 7-8 billion by 2020. Holidayers flock to Kerala but the state attracts only 5 per cent of medical tourists. 75 percent of the 1.617 convicts sentenced to death in the past 15 years were poor. So far, eight RTI activists have been murdered in Gujarat, two this year alone, which is next only to Maharashtra, which has seen the murder of nine RTI activists over the
last 10 years. In all, 33 deaths of RTI applicants have been reported in the country. There are around 1,500 women in the Air Force, including 94 pilots and 14 navigators According to the 12th edition of the Qs World University Rankings, two Indian universities are among the top 200 in the world—Indian Institute of Science, Bengaluru (147th rank) and Indian Institute of Technology, Delhi (179). The US census data shows that Gujaratis, forming 6 percent of the India’s population, form more than 20 percent of the Indian American community. In 2014 alone, over 60 illegal immigrants deported from the US landed at the Ahmedabad’s International Airport. The US today is home to nearly 15 lakh persons of Gujarati origin and more than 3.5 lakh who speak Gujarati as the first language. About 40 percent of the motel industry in the US is run by Gujaratis. Foreign tourist arrivals in September 2015 in India were 5.40 lakh as compared to 5.09 lakh during September 2014. Seven Indians featured in Forbes Asia’s ninth Heroes of philanthropy list, highlighting most noteworthy contributions to philanthropy from 13 countries across Asia Pacific. Of them, four are co-founders of Infosys, one of India’s largest information technology services company. The number of Indian tourists visiting Paris has crossed 300,000, up almost 200 per cent in the last decade. —Compiled by Mahesh Trivedi
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W
Have fun with English. Get the right answers. Play better scrabble. By Mahesh Trivedi
1. On the level A: Equal B: Honest C: Promoted D: Demoted
8. Saturnine
2. Stick-in-the-mud A: Old-fashioned B: In debt C: Mischievous D. Lazy
9. Rack rent A: Low rent B: Rent by law C: High rent D: Prevailing rent
3. To wet one’s whistle A: To experiment B: To tease a girl C: To dance D: To have a drink
10. Study of moon A: Selenology B: Lunology C: Pomology D: Heliology
4. Biscuit-shooter A: Waitress/waiter B: Magician C: Pampered boy D: Confectioner
11. Quibble A: Big bubble B: Trivial complaint C: Trouble D: Sarcastic remark
5. Cut up A: Omitted B: Sacked C: Upset D: Lonely
12. Boor A: Big door B: A wild animal C: Bad-mannered person D: Not so poor
6. All my eye A: Nonsense B: Dreaming C: Attractive D: Clearly visible 7. To hightail it A: To dare B: To flee C: To scare D: To toil
A: Gloomy B: Jovial C: Lucky D: Crazy
13. A satyr is a …… . A: Vegetable B: Lecher C: Planet D: Joker 14. A gay Lothario A: Womaniser B: True lover C: Golden-hearted man
D: Happy-go-lucky man 15. A Darby and Joan A: Happy elderly couple B: Divorced couple C: Inseparable couple D: Rich woman, poor man 16. To carry the can A: To lead B: To take the blame C: To scare D: To sell knick-knacks 17. DUR? A: Do You Remember? B: Did You Reply? C: Did You Read? D: Done with Your Routine? 18. A famous case A. Tour de force B. Magnum dictum C. Carpe diem D. Cause celebre 19. To beat the rap A: To escape punishment B: To win the case C: To argue successfully D: To dance with joy 20. To cop a plea A: To plead not guilty B: To withdraw petition C: To plead guilty D: To file a petition
ANSWERS
1. Honest 2. Old-fashioned 3. To have a drink 4. Waitress 5. Upset 6. Nonsense 7. To flee 8. Gloomy 9. High rent 10. Selenology 11. Trivial complaint 12. Bad-mannered person 13. lecher 14. Womaniser 15. Happy elderly couple 16. To take the blame 17. Do You Remember? 18. Cause celebre 19. To escape punishment 20. To plead guilty
Y L D R WO ISE
SCORES
0 to 7 correct—You need to do this more often. 8 to 12 correct—Good, get the scrabble board out. Above 12—Bravo! Keep it up! textdoctor2@gmail.com
INDIA LEGAL November 30, 2015
81
PEOPLE / Unusual Bites
HALLOWEEN FIESTA Zoo animals get a pumpkin treat on Halloween, in Vienna.
NO MONKEY BUSINESS As temperatures in Rio de Janeiro rose, a spider monkey in zoo got himself an ice cream treat.
OPEN HAPPINESS A gibbon drinks from a soft drink bottle given by a tourist at a zoo in Kunming, China
TOUGH TUFFY The Calgary Stampeders' horse Tuffy drinks some beer in Vancouver, British Columbia.
VICTORIO US HUGO Hugo, a Galapagos Tortoise at the Australian Reptile Park weighs 166 kgs, one kilogram more than last year. — Compiled by Kh Manglembi Devi Photos: UNI
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.