india legal 30 september 2015 by India Legal

DEATH BY HANGING: Is it painful? 38

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

NDIA EGAL I L

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September 30, 2015

`100

STORIES THAT COUNT

OROP BIKRAAM VOHRA BIKRAM VOHRA:

Why the vets came marching in INDERJIT BADHWAR:

The dangers ahead 22

RAMESH MENON: Do the courts ever say sorry? 12

AJITH PILLAI: Big legal bang for

Moneylife 34

DINESH SHARMA: Make NDPS Act more effective 54

LETTER FROM THE EDITOR

INDERJIT BADHWAR

AS YOU SOW, SO SHALL YOU REAP

N the way to work every morning, I drive along the India Gate parikrama. To my right, just before approaching the stately Hyderabad House rises the monument—a war memorial located astride Rajpath, on the eastern edge of the ceremonial axis of New Delhi, formerly called Kingsway. Designed by Lutyens, it is described as “the pride of Delhi”, erected to commemorate the 90,000 Indian soldiers who were killed in World War I. Among the several national ceremonies the site hosts, one of the most important was the Golden Jubilee of the 1965 war against Pakistan in which, after repelling that country’s armed incursions, Indian soldiers were virtually knocking at the gates of Lahore before pulling back. Driving past that site the other day, I noticed a palpable lack of enthusiasm in the air. The reason was a noticeable absence of veterans who had preferred to stay out of the “ celebration ” site and participate, instead, in the goings on at a “ protest” not too much further away where former military officers, jawans and countless civilians were supporting an ex-soldier’s hunger strike to draw public attention to their “One Rank One Pension ” (OROP) agitation. “Hundreds of veterans who participated in the 1965 war joined the protest and boycotted the Golden Jubilee program organized by the government,” a statement by the United Front of Ex-Servicemen, the umbrella organization

of veterans leading the OROP protest, said. “Notable amongst the 1965 war veterans (who joined the OROP protest on Friday) were Brigadier DP Nayar who had participated in the Hajipir operation and Wing Commander Vinod Nebb (Vir Chakra) who brought down one enemy aircraft in Punjab sector,” the statement added. Shortly afterwards, the Defense Ministry made a counter-claim by releasing pictures showing certain veterans at the wreath-laying ceremony organized at the Amar Jawan Jyoti at India Gate. This was, indeed, a sad day. And the developments have shaken the country as few others have in the recent past. Veterans have never in the past been so publicly at odds with an elected government and its bureaucracy. In fact, in the best tradition of the Indian armed forces, our veterans—no matter what their private beliefs, political leanings and predilections—maintain the same discipline and strictly neutral public role as serving officers by keeping out of politics. Right from the first day of Independence, this remarkable distancing has ensured that India, unlike neighboring Pakistan, has been spared from coups and being governed by corrupt military juntas. While, infrequently, the armed forces have faced corruption charges involving senior officers from the army, navy, and air force— scandals in the 2000-2010 period, including

skimming of armed forces money, re-selling of government property and faking combat missions—the military’s reputation remains largely untainted. It is rated by Indians as the country’s most credible institutions. According to the “Global Corruption Barometer 2013”, here are people’s perception of 12 institutions in terms of corruption, on a scale of 1 to 5 (lesser the better) in India’s “Hall of Shame”—political parties: 4.4; police: 4.1; parliament/legislature: 3.8; public officials/civil servants: 3.8; educational system: 3.7; medical/health service: 3.6; business/private sector: 3.4; judiciary: 3.3; religious bodies: 3.3; media: 3.2; NGOs: 2.9 and military: 2.5. Governance Now, reporting on a nationwide poll, concluded: “In fact, if corruption and trust are in inverse proportion, then our survey for the Republic Day special this year, carried out by CVoter, was not wide off the mark. It had the armed forces on top of the trust rating and police and parliament at the bottom.”

SHORT MEMORY The sacrifices that our soldiers have made for the nation seem to have been forgotten

his is largely because the armed forces have remained steadfastly apolitical and have stuck assiduously to the service-before-self motto. The OROP issue, unfortunately, gained political coloration because it became part of unkept electioneering promises, first from the Congress party and then, from Prime Minister Modi who, as candidate Modi, made OROP his personal pledge at a mammoth rally at Rewari, Haryana, during the last general elections. From general observations, there is no gainsaying that Modi won the hearts and minds of ex-servicemen and serving voters who openly (if out of uniform) or quietly (if in uniform) supported the BJP. How much water has flown under the military bridge since then! That a time would arrive when hunger-striking veterans would boycott the 1965 Memorial Day even at the cost of being dubbed “anti-national”, and the government would be forced to counterstrike by issuing a formal press release in the battle for public opinion is scary. Is the fact of Photo Division

September 30, 2015

INDIA LEGAL September 30, 2015

LETTER FROM THE EDITOR

DISTORTED PRIORITIES (L-R) The nation ignored the genuine demands of veteran soldiers in its preoccupation with the sensational Indrani MukerjeaSheena Bora saga

That a time would arrive when hunger-striking veterans would boycott the 1965 Memorial Day even at the cost of being dubbed “anti-national”, is scary. Mukerjea) and socialite Indrani Mukerjea with her good looks and alleged dark deeds of murdering her daughter. Despite lurid tales of Ms Mukerjea and her shenanigans, some of the diehard votaries of OROP, including a 92year old major, rewrote the script by going on a fast-unto-death that was lapped up by the sensation-hungry visual media.”

H UNI

The armed forces have remained steadfastly apolitical and have stuck assiduously to the servicebefore-self motto.

September 30, 2015

veterans having to resort to street tactics to ensure the implementation of electoral promises proof that there is no other way to get redressal of genuine grievances in this nation?

will turn now to Col Hariharan, a veteran intelligence officer during the IPKF Operation in Sri Lanka between 19871990, who is a much-admired contributor to India Legal. He wrote in a recent blog that the 83-day-long relay hunger strike forced the government to accede (even though not fully) to the OROP demand. The home truth that taking to the street in agitation mode gets better results than all other democratic modes is a bitter lesson “unlikely to be forgotten by both serving and retired military men, though these are so alien to good order and discipline ingrained in their lives”. The colonel points out that this agitation, and not simply the grant of OROP is a “watershed event that will continue to haunt civilmilitary relations in the country. None of the stakeholders would be happy about it. But it is a logical sequence to six decades of neglect of the armed forces and their problems by the nation. The sooner the government and the people recognize it, the better it is for the country lest it becomes an irreversible trend”. This is a sound and timely warning sound-

ed by a patriot and military historian with an unblemished record of service to the nation. His blunt recommendation to the Modi government: You must take corrective action to halt it, rather than congratulate yourself for bringing the OROP issue (hopefully) to a closure. The veterans, Hariharan says, are thankful to Modi for upholding his promise to implement the OROP though it was done 15 months after assuming office. “But they will have to thank not only Modi and Defense Minister Parrikar, but also the RSS that seemed to have given the final push to Modi to end the folly of allowing the veterans to agitate too long. Needless to say, in the veterans’ eyes, RSS has probably gained greater credibility than the BJP they voted for.”

he Modi government’s decision, Hariharan points out, has only “revived a system of defense pension that Mrs Indira Gandhi’s government had abolished unilaterally in 1973. So the government has now redressed an injustice done to the veterans 42 years ago, rather than dishing out goodies to keep the soldiers in good humor as some of the bureaucrats and media scribes seem to think. And it is not enough”. He says it is time for the prime minister and the BJP “to do some serious soul-search-

ing on how things came to this sad pass”. If the problem is only partially solved, or the OROP promise fails to plug loopholes or is simply a ruse to confuse and divide the veterans, they may resume the agitation, he observes. But that would be a tragedy “because veterans are respected members of the armed forces biradri where the collective wisdom prevails more than the individual. The jawan of today is better informed on political happenings than the officers of our times. And he is going to be the veteran tomorrow. So the process of repairing civilmilitary interface should start now. If the government and political parties choose to ignore the writing on the wall, it could cause more unpleasantness in the years to come”. If Narendra Modi wants to make a difference to the lives of veterans, Hariharan says, “he should immediately constitute a permanent veterans commission to proactively advise him, not merely on veterans’ issues, but on putting to use the trained and disciplined manpower of veterans for nation building. “After going through their ordeal, veterans have probably learnt how to deal with the two upper castes that run the country: the politician in power and the bureaucracy. Veterans had to compete for media space for their struggle with the media tycoon (Peter

ariharan is not playing politics. He is a shrewd observer who slams the Congress with equal outrage. He condemns Rahul Gandhi’s attempt to appropriate the crisis by trying to cozy up with the veteran protestors: “However, when veterans shooed off his attempt, he wisely reverted back to the ‘other earthshaking national event’—the FTII strike—to unearth the RSS conspiracy against national institutions. “Apparently, Rahul has continued to strategize the Congress response to the OROP announcement also. Otherwise, it is difficult to understand why the second most inarticulate (or is it incomprehensible?) leader of the Congress Party—AK Antony— was chosen to comment upon it. Antony had not covered himself with glory during his long tenure as defense minister. So it was not surprising to see him haltingly pronounce that the government had cheated the veterans by offering a diluted version of OROP than what the Congress had agreed upon. He conveniently forgot that he sat upon the proposal for nine long years as defense minister. “And the BJP must be praying that Rahul Baba should continue to lead the Congress from the front, so that it can bask in the reflected glory.” Our cover story written by Bikram Vohra explains why nobody is leading from the front.

editor@indialegalonline.com INDIA LEGAL September 30, 2015

SEPTEMBER 30, 2015

ISSUE. 02 Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Business Editor Shantanu Guha Ray

Political Editor Bhavdeep Kang Associate Editor Meha Mathur Deputy Editor Prabir Biswas Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Graphic Designer Lalit Khitoliya Photographer Anil Shakya News Coordinator/Photo Researcher Kh Manglembi Devi Production Pawan Kumar

LEAD

OROP, an hour of shame

The delay in the much-deserved One-Rank-One-Pension scheme for armed forces veterans demonstrates the lack of sincerity in the government’s assurances, writes BIKRAM VOHRA. Plus, INDERJIT BADHWAR, in his edit comments on the absence of war veterans in the 1965 war victory celebrations

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September 30, 2015

TECH

FOCUS

Betting brouhaha

BOOKS

The questions MPs ask

Parliamentarian BHARTRUHARI MAHATAB reviews Parliamentary Questions: Glorious Beginnings to an Uncertain Future by Devender Singh, which traces the history of Question Hour to the 1890s

You leave your fingerprints, literally, each time you browse a website. Somebody out there is closely monitoring your behavior, warns JULIA ANGWIN

GLOBAL TRENDS

Middle Kingdom is jolted

As the Chinese Yuan is devalued, tremors are being felt in economies across the world. STRATFOR team evaluates the responses of different countries

With Goa and Sikkim allowing betting, why doesn’t the rest of India do so too in order to earn revenue, asks KAUSHIK JOSHI HEALTH

Shots of trouble

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

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KAUSHIK JOSHI analyzes two judgments that question why the poor should languish in jails if financial constraints prevent them from furnishing a bail bond

Traces you can’t erase

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari

For advertising & subscription queries editor@indialegalonline.com

Cost of freedom

SUPREME COURT

Justice denied?

Yusuf Mohsin Nulwalla, who was convicted along with actor Sanjay Dutt in the 1993 Bombay blasts case, seeks commutation of his sentence on a technical point. If proved innocent, would this open a can of worms, probes RAMESH MENON MEDIA

Defamations galore While the defamation notice issued by ADAG group against TOI is the biggest so far, the Bombay High Court's verdict favoring Moneylife was a shot in the arm for the media. AJITH PILLAI reports LEGAL EYE

Painful end Contrary to the belief that hanging leads to instant death, it could lead to immense agony for the convict if not properly carried out, says SACHIN DHAWAN

US-based PATH and ICMR are under the lens for alleged unethical vaccine trials against cervical cancer on thousands of Indian girls, reports MEENA MENON

Numb with pain

A strange law denies cancer patients access to medicines that would lessen their pain and suffering. DINESH SHARMA argues for a better implementation of the amended NSPS Act STATES

When the mountains cried

There’s a mad rush for property in Himachal Pradesh, but the Himachal Pradesh Apartment and Property Regulation Act has failed to prevent rampant deforestation and construction, writes RAJA AWASTHI

DIPLOMACY

Isle of change

The double defeat of Mahinda Rajapaksa in the presidential and prime ministerial elections indicates that the island populace wants to bring in a more inclusive politics, and the world powers are all for it, writes SHASTRI RAMACHANDARAN

REGULARS

VOLUME. IX

Edit................................................................................4 Quote-Unquote...........................................................10 Ringside......................................................................11 Supreme Court............................................................18 Courts......................................................................... 20 National Briefs.............................................................33 More News..................................................................66 Is That Legal................................................................78 International Briefs.......................................................79 Campus Update......................................................... 80 Wordly Wise.................................................................81 People......................................................................... 82 Cover Design: ANTHONY LAWRENCE Cover Photograph: GETTY IMAGES

INDIA LEGAL September 30, 2015

QUOTE-UNQUOTE

“Pakistan has no power. It is frustrated and weak. Their civilian government is useless. It's a dummy government. If the military wants a war, we are ready, but we are not going to declare a war.” —BJP leader Subramanian Swamy

“Bhagat Singh is neither a martyr nor a national hero. He is a terrorist. We are against the naming of Chandigarh International airport as Shaheed-E-Azam Sardar Bhagat Singh Airport.”

“There are things done by the governments in India that do not strike a chord with many people and which cause them to express their contempt, enmity and disaffection openly… Is this a valid reason to send such people to jail?”

—Akali Dal (Amritsar) president Simranjit Singh Mann

—Markandey Katju, ex-Press Council of India chairman on the Maharashtra government’s circular on free speech and sedition, in The Hindu

“Narendra Modi contested elections on an anti-Pakistan platform and now wants to dictate terms for dialogue with Pakistan but we will never accept this and we have already conveyed it to New Delhi.”

“If the enemy ever resorts to any misadventure, regardless of its size and scale – short or long it will have to pay an unbearable cost.” —Pakistan Army chief Raheel Sharif

—National Security Advisor of Pakistan, Sartaz Aziz, in Dawn News

“I don’t think it would be fair to say that the BJP is as extreme (as Shiv Sena) but it is becoming more strident and less tolerant.” —Salman Rushdie in Hindustan Times

September 30, 2015

“People who accuse us of hawaa baazi told soldiers that One Rank One Pension is not possible due to financial constraints. It was the PM who turned their hawaa baazi to reality.”

Aruna

VERDICT When men are pure, laws are useless; when men are corrupt, laws are broken. — Benjamin Disraeli

—HRD Minister Smriti Irani, hitting back at Sonia Gandhi

INDIA LEGAL September 30, 2015

SUPREME COURT/ Yusuf Nulwalla Case

dence that Odom is innocent of the charges” and apologized for the “terrible justice”. In 2011, New Zealand’s Associate Justice Minister Nathan Guy said his government unreservedly apologized to Aaron Farmer as he was wrongly convicted for rape in 2005. Farmer had spent over two years in prison. The government also paid $3,51,575 as compensation for wrongful conviction and imprisonment.

Travesty of Justice? Yusuf Mohsin Nulwalla, who was convicted along with actor Sanjay Dutt in a Bombay blasts case, seeks commutation of his sentence on a technical point. If proved innocent, would this open a can of worms? By Ramesh Menon

AN you remember any instance of an Indian court or government apologizing to an accused who went through a jail term after being wrongly convicted? There have been instances in the US and even conservative China where this has happened. In fact, in a rare move, a Chinese high court this month apologized to 19 people wrongfully convicted and imprisoned in 2012 on charges of illegal fundraising. The People’s High Court for the eastern province of Anhui had no hesitation in saying that it wished to restore their tarnished reputations. This is significant as it has happened for the first time in China. It is well-known that Chinese courts controlled by the ruling Communist Party are largely seen by the outside world as one where political considerations hold sway most of the time. In the case of the US, though the case dates back to 1921, it still has resonance. Injustice was meted out to Nicola Sacco and

September 30, 2015

Bartolomeo Vanzetti who were wrongfully found guilty by a jury and electrocuted seven years later. A series of appeals followed, funded largely by a private Sacco and Vanzetti Defense Committee. The appeals were based on recanted testimony, conflicting ballistics evidence, a prejudicial pre-trial statement by the jury foreman and a confession by an alleged participant in the robbery. These appeals were all denied. Investigations into the case continued throughout the 1930s and 1940s. Ultimately, in 1977, Massachusetts Governor Michael Dukakis issued a proclamation that Sacco and Vanzetti had been unfairly tried and convicted and that “any disgrace should be forever removed from their names”. In another case in the US, after more than two decades in a Washington prison, Kirk Odom walked free. He had been convicted of rape and robbery and was forced to register as a convicted sex offender. In 2012, the US Justice Department filed court papers saying that there was “clear and convincing evi-

NO APOLOGY But in India, there has been no case where courts have apologized for a wrong decision though they have admitted review petitions or even changed their judgments. This fortnight, legal experts in India were discussing this issue when Yusuf Mohsin Nulwalla, who has been convicted to undergo imprisonment of seven years in a case related to the Bombay blasts case of 1993, filed a writ petition seeking commutation of his imprisonment to three years. His plea was that he was in possession of a non-prohibited AK-56 assault rifle that is only a semi-automatic firearm. He also pointed out that the prosecution had not been able to produce any evidence to show that it was an automatic firearm which is prohibited. If Yusuf ’s claim that the weapon he had was not prohibited is true, then the charge under Section 7 of the Arms Act would fail. If he was let out of jail on this plea, many wondered if it would also include remission for actor Sanjay Dutt as he also was sentenced to five years along with Nulwalla. But for Dutt it does not matter anymore as he will be a free man in the third week of January 2016. What has hurt both Nulwalla and Dutt is the fact that the media has always referred to them as terrorists accused in the Bombay blasts case when the fact is that they were not accused under TADA but the Arms Act for possessing a weapon. Both the TADA court and the Supreme Court have not held them guilty in the Bombay blasts case. But the press always refers to them as the Bombay blast accused. NO EVIDENCE But what has intrigued many observers is the fact that none of the lawyers or judges

noticed that there was no evidence to prosecute them. The spring which was produced in court, which was ostensibly from a gun, was of a different size from that mentioned in the recovery list. So was the rod which was meant to clean the gun. The bullets that were produced in court were brand new when it was recovered from the sea bed after a month of it being there. No one asked why the bullets had not rusted and how they had fired when tested by the forensic department. This is the problem when not understanding criminal law in its totality. The Indian judiciary is seriously short of lawyers who specialize in criminal law as well as judges who understand criminal justice. Significantly, a Supreme Court bench comprising Justices Ranjan Gogoi and Prafulla C Pant understood the point and conceded that the courts had overlooked that the weapon in Nulwalla’s possession was not prohibited under the Arms Act (See Box). The bench advised Harish Salve, Nulwalla’s counsel, to file a curative petition and agreed to keep his writ petition pending. The charges framed by the TADA court said that Nulwalla acquired AK-56 rifles and cartridges and one 9mm pistol and cartridges which were smuggled into the country for committing terrorist acts and he destroyed the said AK-56 rifle with the assistance of a co-accused. Nulwalla was con-

The spring which was produced in court, which was ostensibly from a gun, was of a different size from that mentioned in the recovery list.... The bullets that were produced were brand new when it was recovered from the sea after a month. No one asked why they had not rusted.

JUSTICE DENIED? Yusuf Mohsin Nulwalla, who was sentenced along with Sanjay Dutt

INDIA LEGAL September 30, 2015

SUPREME COURT/ Yusuf Nulwalla Case

Abu Salem had told the TADA court in August 2015 that he has not provided any AK-56 rifle to Yusuf Nulwalla and Sanjay Dutt. Salem was not charged under the Arms Act as the court accepted his plea but Nullwalla was convicted.

victed for an offence punishable under the Arms Act and sentenced to rigorous imprisonment for five years along with a fine of `20,000. If he defaulted on the payment, he would have to undergo a prison term of another six months. He was further convicted for the offence punishable under Section 201 of the IPC and sentenced to rigorous imprisonment for another two years. The convictions by the TADA court were given on November 28, 2006, and July 31, 2007, respectively. The conviction was based on the following facts: During the investigation of the case, the prosecution claimed, that there had been recovery of parts of an AK-56 rifle that was prohibited. The recovered articles were placed on record before the TADA court as evidence Exhibit 3A and 3B—one metallic spring and one rod. The court charged Yusuf Nulwalla with

various offences, including possession of the “prohibited” firearm. After the trial, he was acquitted of all other charges, but was convicted of the charge of possession of a prohibited firearm by the TADA court. An appeal filed in the Supreme Court in 2007 was dismissed. A review petition in 2013 was also dismissed. NEGLECTED FACTS Even assuming that the petitioner had possession of an AK-56 rifle and 9 mm pistol as alleged, the same would not be a “prohibited arm” in terms of law. The law is very clear that it has to be affirmatively proved that it is a prohibited weapon and in the absence of such proof, no conviction can be made. Secondly, the finding of guilt and conviction of Nulwalla under Section 7 of the Arms Act for alleged acquisition and possession of “prohibited arms” was not based on any ade-

Fair Denial?

HE Supreme Court judgment on March 21, 2013, that dealt with the probation of Sanjay Dutt upheld the view of the TADA court that it had taken a view on the basis of the confession of Dutt. The court bench, comprising Justices P Sathasivam (right) and BS Chauhan (below) fully agreed that the arms acquired by Sanjay Dutt were for self-defence and not for any terrorist activity. The court set certain grounds for getting probation: (i) The accused is found guilty of having committed an offence not punishable with death or imprisonment for life. (ii) The Court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation. (iii) The accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behavior. Obviously, the underlying object of the above provisions is that an accused person should be given a chance of

September 30, 2015

reformation, which he would lose in case he is incarcerated in prison and associates with hardened criminals. However, even though it was accepted that Dutt had got the weapon for self-defence and not for any terrorist activity and despite the conditions set down for granting probation, Justices P Sathasivam and BS Chauhan said that the circumstances and the nature of the offense did not warrant the benefit of the provisions of the Probation of Offenders Act. However, taking note of various aspects, the court reduced his sentence to minimum period of five years. In his additional affidavit before the Supreme Court, Dutt asserted that he was entitled to seek the benefit of Section 4 of Probation of Offenders Act. He had made out a case for probation by giving facts related to the work he and his family had done and also underlined the fact that he had no criminal antecedents. Though the Supreme Court accepted the findings of the TADA court that Dutt was not involved in the 1992-93 riots, it denied him the benefits of probation. No reason was given.

quate or sufficient evidence nor established beyond reasonable doubt at the trial. This aspect of the case was not placed before and has not been noticed by the TADA court and the Supreme Court. Besides, both the AK-56 and 9mm pistol are per se not “prohibited arms” and the conviction of Nulwalla based on the assumption that the same were prohibited arms was contrary to law. In the trial court as well as the Supreme Court, the question whether the AK-56 that was allegedly in possession of Nulwalla fell within the definition of a prohibited arm, was not gone into. Nulwalla’s conviction was based on a premise that he was in possession of an automatic weapon. The appeal was also decided on the premise that he was in possession of an automatic weapon. The courts believed the prosecution case that he was in possession of an AK-56 rifle. The trial court and the Supreme Court held and affirmed the finding that parts like a rod and a spring recovered from him showed that he was in possession of an AK-56 rifle. Besides, the courts failed to consider that the FSL report did not state whether the aforesaid parts of the weapon recovered established that the weapon that was allegedly in the possession of Nulwalla was a fully automatic firearm or a semi-automatic firearm. For conviction, it was essential to prove the acquisition, possession and carrying of “prohibited arms” and ammunitions by an accused. No evidence has been led to prove, beyond reasonable doubt, that the firearm in question is “prohibited arms” within the definition of Section 2(1) (i) of the Arms Act, 1959. The spring and rod recovered was not given a conclusive finding by any court whether they fall as a weapon which is a “prohibited weapon or arm”. SALEM PLEA The case said that the arms were given to Nulwalla by Abu Salem. The Supreme Court had dropped eight charges against Abu Salem which were framed by the TADA court in the 1993 Bombay blasts case. Abu Salem had told the TADA court in August 2015 that he has not provided any AK-56 rifles to Nulwalla and Dutt. Salem was not charged

under the Arms Act as the court accepted his plea that he never supplied the arms but Nullwalla was convicted as the police said that it was given to him by Abu Salem. Even if the curative petition of Nulwalla reverses the final judgment and order of conviction and sentence of the TADA court and also the judgment passed by the Supreme Court, Dutt who is convicted in a similar case will not get any benefit as his term has almost come to an end. If the curative petition is allowed in favor of Nulwalla, he would be then seen by the court to have committed an offence punishable only under the Arms Act and not under TADA and the maximum sentence would be three years, which he has already completed and so can be let free. Many are watching this case keenly and questioning whether there was a travesty of justice in the cases of Nulwalla and Dutt. IL

POINT OF REFERENCE (Top) The 1993 Mumbai blasts (Above) The Supreme Court bench comprising Justice Ranjan Gogoi and Prafulla C Pant felt that the weapons possessed by Nulwalla were not illegal

INDIA LEGAL September 30, 2015

SUPREME COURT/ Erroneous Decisions

Supreme but not infallible

“We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the court, though final, is fallible. These essays are a reminder of what the Court is and does.”

Despite being the highest court of the land, there have been instances where the Supreme Court has erred in the finding of facts and law By Venkatasubramanian

ERROR OF JUDGMENT The Supreme Court’s verdict during Emergency (above and right) that fundamental rights could be suspended was set later aside by parliament

September 30, 2015

HILE asking the counsel for Yusuf Mohsin Nulwalla, Harish Salve, to move a curative petition, Justice Gogoi said: “All orders of the court are not always correct or perfect. Whatever order we give, right or wrong, are final.” These observations make one recall the title of a book, a collection of essays published in 2000, to mark the 50th anniversary of the Supreme Court: Supreme, but not infallible. The title itself is taken from an oft quoted self-reflection of an American judge: “We are not final because we are infallible, we are infallible only because we are final”. (Justice Robert Jackson in Brown v. Allen in 1953). Justice BN Kirpal, wrote in his preface to this book: “We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the court, though final, is fallible. These essays are a reminder of what the Court is and does.” In the history of India’s Supreme Court, instances of the court admitting errors in the finding of facts and law are many. While in some cases, subsequent benches have sought to correct the erroneous decisions of previous benches, some have remained uncorrected due to the vagaries of the judicial system. Of these, erroneous decisions in sentencing con-

—Justice BN Kirpal in his preface to a book, Supreme, but not infallible. victs to death, but which went uncorrected before the convicts were hanged, were the most telling. In October 1975, the Allahabad High Court upheld the death sentences on Jeeta Singh, Kashmira Singh and Harbans Singh. The three convicts were found guilty of murdering four members of a family and their role in the crime was similar. All were before the Supreme Court separately on appeal.

eeta Singh’s appeal was dismissed by a Bench of three judges (Justices YV Chandrachud, VR Krishna Iyer and NL Untwalia) and he was hanged. Another bench of two judges (Justices M Fazal Ali and PN Bhagwati) commuted Kashmira Singh’s death sentence to life imprisonment. Yet another Supreme Court Bench dismissed Harbans Singh’s appeal and review petition. Harbans Singh had sought equal treatment with Kashmira, and he was scheduled to be hanged with Jeeta Singh. But he appealed again. This time, the court stayed his execution and recommended presidential clemency, which was granted. In Santosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009), the Supreme Court admitted gross misapplication of the death penalty law in a host of cases on the ground that they did not follow the stipulated test mandated in Bachan Singh vs State of

Punjab (1980). In Ravji vs State of Rajasthan (1995), the Supreme Court had held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial. Ravji case was followed in at least six decisions of the Supreme Court. In Bariyar, the court held the ruling in Ravji as per incuriam (in error). Following Ravji, two prisoners, who were wrongly sentenced to death, Ravji Rao and Surja Ram, were executed on May 4, 1996, and April 7, 1997, respectively. In several cases, larger benches find the decisions of smaller benches error-prone and overrule them, both on findings of fact and law. In ADM Jabalpur vs Shiv Kant Shukla, decided during the Emergency, the majority judges held that fundamental rights could be suspended during the Emergency. Although this has not been specifically overruled by a subsequent judgment, the 44th Amendment passed by parliament is considered to have impliedly set this judgment aside. But none of the subsequent benches would cite ADM Jabalpur as a valid precedent for this proposition, because it was always considered to be erroneous. The curative petition mechanism devised by the court in 2002 is itself an acknowledgement that errors can happen and should be rectified even belatedly. IL

While in some cases, the subsequent benches have tried to correct the wrong decisions of the previous benches, some have remained uncorrected due to the vagaries of the judicial system.

INDIA LEGAL September 30, 2015

SUPREME COURT

FTII PIL dismissed HE apex court has rejected a PIL seeking its intervention into the current crisis at the Film and Television Institute of India (FTII), Pune, as a result of the student agitation. For the past three months, the students are on protest over the appointment of Gajendra Chauhan as chairman of FTII by the government. The PIL had pointed out that the institute was unable to func-

tion, jeopardizing the career of students, yet the government was doing nothing to solve the problem. It wanted the court to instruct the center to seek a solution to the impasse. The court also turned down the request to ask the Maharashtra government to provide security cover to those students who were willing to attend classes. Classes have not been held for three months.

An onerous task HE Supreme Court has observed that it was not feasible for it to keep a tab on whether Right to Education Act was being carried out in its true spirit across the country and it was for high courts to take up the job. It, therefore, turned down a plea for asking the center and the states to appoint enough teachers and build schools. The court was responding to

September 30, 2015

HE special court conducting trial in the 2002 Gulbarg Society massacre case in Gujarat was recently given the go-ahead by the apex court to come up with its final verdict. Trial proceedings in the case have been going on in the SIT court since 2009. The SC had earlier allowed the court to complete the trial within three months. The apex court had put a hold on all trials in this case as well as eight other cases relating to 2002 Gujarat riots. Thereafter, a special investigating team (SIT) was formed in 2008 and the special SIT court was set up in 2009. Sixty nine people lost their lives in the

Advice to ML Sharma

HE Supreme Court recently made it amply clear that disabled persons can claim quota benefits only at the entry level in government jobs and not

thereafter at the time of promotions. The court was referring to its 2013 verdict which had clearly stated the condition. The verdict mandated three percent reservations in jobs. The court was responding to a contention of the center that the issue of reservation during promotions was not addressed by the court in its 2013 order. The court also took a grim view of the center’s tardy progress in filling up vacancies of disabled persons in government jobs. The 2013 order had directed the center and the states to fill up all vacancies within three months.

SIT’s final order on Gulbarg

a petition from an NGO that pointed out that the government was not serious enough about implementing the act, and wanted the court to play a proactive role. It also said that there was an acute shortage of schools and teachers all over India. The court asked the petitioner to move all high courts so that the act could be enforced in all states.

HE apex court has pointed out that former CBI Special Director ML Sharma who is helping the Central Vigilance Commission (CVC) in probing the Ranjit Sinha diary case, had overestimated demands for remuneration and infrastructure needed for the job. The court also felt that Sharma was not aware that the entire procedure would only take eight weeks. Sharma was selected by the

Quota benefits for disabled

apex court in July for helping the CVC to find out whether the former CBI chief had watered down charges against people involved in the coal scam after he allegedly met them at his residence. The court asked Sharma to think about seeking the help of two-three officers and the same number of secretarial staff. It also instructed that the inquiry must be completed within 8 to 12 weeks.

killings, including Congress MP Ehsan Jafri, when a Hindu mob attacked Gulbarg Society, a Muslim neighbourhood in Ahmedabad.

Progress card on black money he black money issue cropped up in the apex court recently and it sought to know from the center what had been done to implement the “tough” recommendations of the Special Investigation Team (SIT) on unearthing black money and ways to end the corrupt practice. The SIT was appointed by the apex court and has already submitted three reports. The court asked the center to submit an action-taken report on October 28. It was reacting to a PIL filed by well-known lawyer Ram Jethmalani.

CLAT up for revamp? aking cognizance of a petition that there was a need for an independent and professional body to conduct the Common Law Admission Test, popularly known as CLAT, the apex court sought responses from the center and the Bar Council of India within six weeks. The PIL pointed out that the present system of examination, conducted by the National Law Universities, was riddled with loopholes and could be misused. It wanted a review of the fee structure, format and syllabus of the examination as well as questions included in the exam.

No mercy for corruption onsidering the rampant corruption in India with no end in sight, the apex court directed the courts to deal with such cases with a heavy hand and instructed them to opt for the severest of punishment without any consideration for mercy. It did not matter what was the extent of corruption, the court ruled. The court’s observation came while it sacked a conductor of the UP State Road Transport

Corporation for corrupt practice. The conductor had looked the other way while 25 passengers did not buy tickets on a UPSRTC bus 23 years ago. The apex court overruled the verdict of a labor court and the Allahabad High Court which did not take away his job after finding him guilty. — Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL September 30, 2015

COURTS

Farooqui denied bail

UP pulled up for bureaucrats he Allahabad High Court wanted a response from the UP chief secretary as to why some top officers of Noida Authority, Greater Noida Industrial Development Authority and Yamuna Expressway Development Authority were allowed to continue in their current postings for such long periods. The petitioner, Jitendra Kumar Goel, had drawn the attention of the court to the term of several senior officials, including Rama Raman (chairman and CEO of Noida Authority and Greater Noida Industrial Development Authority) and Santosh Yadav (CEO of Yamuna Expressway

Development Authority). Kumar pointed out that several irregularities during their tenure were in public domain and even wanted the CBI to probe into their assets. He also contended that since Yadav Singh, the suspended chief engineer of all the three authorities, was under CBI investigation for alleged corruption and disproportionate assets, the officers should have been shifted much earlier to clear any doubts of their involvement. The court took particular objection to the continuance of Raman as head of all the three authorities for “inordinate” period.

A bonanza for women in Navy omen officers from the Indian Navy had much to rejoice as the Delhi Court ordered that they must be accorded permanent commission with retirement benefits after completing their short service commissions. The same is being done by the Army and the Air Force. Observing that the center seemed hesitant in taking the step, the court

said that nothing could come in the way of women’s steady progress and opportunities being offered to them, and ruled that it would not brook such a retrograde step. Women officers, both retired and in service, from different units of Indian Navy had approached the court, pleading they be granted permanent commission.

eepli Live co-director Mahmood Farooqui, who is in judicial custody since June 20 for allegedly assaulting an American researcher sexually was denied bail by a trial court in Delhi. The court also framed rape charges against him. It further ruled that the daily trial would start from September 9 and the woman would appear on September 14. Farooqui’s bail plea will be taken up once the court has looked at all the evidence presented by the complainant. The court also asked the forensic science laboratory to submit its report on case quickly as the visa of the US national will expire by October 5.

P Decision awaited on Sushil Sharma he Delhi High Court asked the Lieutenant Governor of Delhi and the Delhi government to take a call on whether the convict in the Tandoor murder case, Sushil Sharma, be set free from prison. The former youth Congress leader is undergoing life imprisonment for the murder of his wife Naina Sahni on July 2, 1995 and trying to burn her body in an oven of a restaurant. Sharma had pleaded before the high court that he was entitled to premature release under the rules of the Sentence Review Board as he had already served more than 20 years in prison. The Supreme Court had on October 8, 2013, commuted his death penalty into life imprisonment.

Verdict begins on CG scam A query on road-naming he Delhi High Court asked the New Delhi Municipal Council (NDMC) what was the procedure followed to change the name of the Aurangzeb Road to Dr APJ Abdul Kalam Road and sought a reply by September 22. It, however, refrained from staying the namechange move or issuing notice to the municipal body. Lawyer Shahid Ali had approached the court with a petition

September 30, 2015

that questioned the NDMC’s decision to go for the name-change and pleaded that it was in violation of a 1975 guideline of the center that mandated that names of existing roads could not be changed, The counsel for NDMC, however, contended that the civic body had the powers to change names of roads that fell under its jurisdiction, under the NDMC Act and the renaming was not unprecedented.

entencing began in the 2010 Commonwealth Games scam in early September. Out of the 10 cases filed, the first to be disposed of by the judiciary was on the scam in the street-lighting contract that led to a loss of `1.4 crore to the exchequer. A trial court pronounced jail terms for six people in the street lighting case. Out of them, four are officials

of the former Municipal Corporation of Delhi. The other two were director (JP Singh) and managing director (TP Singh) of a private firm Sweka Power-tech Engineering Pvt Ltd, which was said to have been unduly favored. While the four MCD officials and JP Singh were awarded a rigorous imprisonment of four years, TP Singh was sentenced to a six-year jail term.

Paramilitary officers get a gift t was a huge relief for Group A paramilitary personnel when the Delhi High Court declared such forces as “organized services”. Paramilitary services include CRPF, BSF, ITBP, CISF and SSB. The ruling is expected to not only bring them monetary benefits but also provide them better options as far as promotion and deputation are concerned, on par with administrative service officers of the government. The court took a positive stand on the petition of some 200 Group A officers, who pleaded that there were not enough promotional avenues for them due to inadequate posts, and significantly, most of the top posts were given to IPS officers. Their counsel lamented that all these factors affected their career progression and that all this was severely impacting the morale and output of officers often posted in sensitive areas under challenging conditions.

Jail term to Nirbhaya convicts he death row convicts—Vinay Sharma, Akshay Thakur, Mukesh and Pawan Gupta—in the Nirbhaya rape and murder case had actually robbed a carpenter in the same bus before they committed the gruesome and dastardly act on the night of December 6, 2012. A trial court in Delhi held them guilty for the offense and sentenced them to 10 years in jail. It also asked them to pay `1.01 each as a fine.

— Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL September 30, 2015

LEAD/ OROP

FIGHT FOR RIGHTS (Left and below) Veterans of the Indian armed forces continue their hunger strike for OROP at Jantar Mantar in New Delhi, saying the government is offering it in diluted form; the hunger strike had entered the 87th day when this photograph was taken on September 9

Served with Little Gravy and No Grace 22

September 30, 2015

Though the “One Rank, One Pension” scheme for the armed forces has been announced, protests by ex-servicemen continue. Why are the government’s assurances like weak tea and lacking in sincerity? By Bikram Vohra

Y aunt’s husband died on duty when his fighter aircraft crashed in Kalaikunda in 1962. His brother died in a military mountain climbing expedition 10 years later. My closest friend was killed while he was a test pilot in Bangalore in 1982. He was practicing maneuvers for a group of MPs expected to visit the next day and his jet failed to go into a climb. My father retired as a majorgeneral and received the pension of an officer of that rank dated 1979 after 38 years of military service. He and his three younger brothers all became generals, the only four brothers in any army in the world to attain that rank in the same corps. Between them, they served 150 years in the Indian army. One of them won the Mahavir Chakra. All these individuals or their widows, as the case may be, received totally disparate pensions. Only the IAS enjoys the One Rank, One Pension (OROP) equality. Photos: Anil Shakya

INDIA LEGAL September 30, 2015

LEAD/ OROP

By its half-hearted acceptance, the government has robbed the armed forces of the satisfaction of being given their just dues. Even if the OROP is reinstated in full measure, the crockery of reluctance that it is served on makes it unpalatable.

THEY DESERVE MORE Defense Minister Manohar Parrikar pays homage to martyrs of Kargil war on Kargil Vijay Diwas, July 26

In 1973, when Indira Gandhi swooped in and happily gave off the fifth star to Sam Manekshaw but ignored Air Chief Marshal PC Lal and Admiral SM Nanda within two years of the war with Pakistan, she scrapped the OROP concept. For 37 years, the issue lay frozen and no one did it any reverence. It was in December 2011 that the Koshyari Committee comprising 10 MPs was asked to make a report and did just that. Clear, concise and valid. Unanimous. Give the armed forces OROP and balance out the pensions as per rank and length of service. There is no ambiguity about it. It was simply a matter of implementing it correctly. Ironically, it still is ambiguous. TEPID EFFORT When Defense Minister Manohar Parrikar announced the implementation of the OROP, it was clear by his tepid effort that he really did not know what was going on. Any jubilation was short-circuited by the statement that those who took advantage of the Voluntary Retirement Scheme (VRS) would be outside the ambit of OROP. He had no clue that VRS is not an option in the armed forces. Officers have to complete 20 years before seeking premature retirement and at that mark, they have earned their pension.

September 30, 2015

Although the faux pas was retracted later, it soured the waters totally. All other aspects that were open to debate became areas of suspicion. Paramount was the five-year review for pensions and the need for a wider panel to go into the implementation of OROP than merely one judge. The servicemen want three reps on that panel who know the military ethos. These seem like reasonable demands, as does the call to ensure that one month should be the time limit and not six months for the panel to conclude its functions. One tends to feel that the haphazard way in which the OROP was made public and the presence of three chiefs to flank Parrikar to give it authenticity was aimed at getting the ex-servicemen to disband and leave Jantar

Mantar. That they saw through this intent compelled them to reject the offer in its present form. They know that once they pack up, they can really not come back because the movement will run out of gas. That gambit, if it was a ruse, has failed. These men will now try to up the pressure by calling for an allIndia backing. In the interim, while the government can gloat over having kept its promise, the cruel truth is that the veterans have not got off the Jantar Mantar stage. There would be two schools of thought on this issue. One would say quite emphatically that the ex-servicemen are reaching out a bit more than is acceptable and getting touchy over technical glitches. The other school would say that the movement led by Major-

General Satbir Singh has grave doubts about the confusion that the announcement has caused and if, indeed, the technical points are minor, why not just unilaterally remove them? After all, why the resistance and why sour the cream before giving it? If the government wished to score a point by clearing the decks on this issue, why is the protest not only still on but gathering nationwide momentum? The reason for this is that the assurances given of addressing the doubts raised are like weak tea and seem to be more in the realm of a fobbing off than a measure of sincerity. For those who feel the government has done enough by accepting the concept of the OROP and announced its open-ended implementation sans any UNI timeline, perhaps the case earlier in the week of Lance Naik Mohan Nath Goswami comes as a sad, yet stellar example, of valor. Goswami killed 10 insurgents in Kashmir in 10 days, but was killed himself on Day 11.

The IAS made sure they got OROP eternally, but others don’t. The highest government pay is `80,000 fixed. The invention of this “Fixed” pay was meant to shield them forever from the ill-effects of the formula they devised for others.

SEIZE THE MOMENT Truth be told, this would be the ideal occasion for the government to show its muchheralded affection for its men and women in uniform and honor Goswami’s sacrifice with tangible offerings, including the highest medal for gallantry. There should be no delay in announcing ex-gratias and other emoluments because his death epitomizes the role of our soldiers, sailors and airmen in keeping the nation secure. Think for a moment how many lives Goswami saved because 10 INDIA LEGAL September 30, 2015

LEAD/ OROP

Politicians parade their affection for the uniform, but when it comes to honoring them, they baulk. On this canvas, the so-called green signal given to the OROP rings hollow. Nor is there any originality in this.

insurgents were eliminated who were capable of causing havoc. It is with dismay that while one talks of OROP, yet Goswami’s death is just a one-day news item. Politicians parade their affection for the uniform, but when it comes to honoring them, they baulk. On this canvas, the socalled green signal given to the OROP rings hollow. Nor is there any originality in this latest concession. Prime Minister Narendra Modi integrated the OROP into his election promise, mentioned it on glaciers, in rallies and on INS Vikramaditya. At no stage were the codicils mentioned and till there is a deadline, the matter is moot. As it is already functional in the IAS, who needs a fresh interpretation? The veterans have grounds to feel there is deliberate foot-dragging on the issue and the attempt is populist for the present. The second myth is the cost to the exchequer. It is not a crippling amount. The current defense budget is `2,46,727 crore and `10,000 crore (which will go in implementing OROP) is about four percent of it. On the contrary, there is even no need to be concerned about the retrospect angle. Most of the senior ex-servicemen whose pension is at the low end of the scale having retired years ago, are, to put it bluntly, dead. A large majority of them are octogenarians. There is no huge mass of ex-soldiers out there seeking this upgrade in their salaries. That is a myth. When the government announced OROP and labeled it historic, it specially offered benediction to war widows who were numbered at six lakh. How this number was arrived at is difficult to calibrate. It should be more in the region of 30,000 but needs clarification. IAS LOBBY If there is a wave of rage, it is because of the disparity between the armed forces and their civil service compatriots. I have to quote a piece that was mysteriously sent to me with no byline: The IAS crafted the Pension Fixation Formula in such a manner that they are immune to any post-Pay Commission disadvantage to the old retirees. A few decades ago, the IAS “invented” a

September 30, 2015

an h

PARITY AT THE TOP (L-R) Army Chief Gen Dalbir Singh, Navy Chief Admiral RK Dhowan and Air Chief Marshal Arup Raha; the three defense chiefs fall in the same fixed pay bracket as seniormost IAS officials Photos: UNI

secret magic wand to make sure that they get OROP eternally and surreptitiously, but others don’t. This is how it was manipulated: The highest pay in the government currently is `80,000 fixed, called the Apex Scale (though it is not a scale in the true sense as it does not scale up). Only the three defense chiefs and the cabinet secretary get the higher fixed pay of `90,000. The invention of this concept of “Fixed” pay was meant to shield them forever from the ill-effects of the formula they devised for others. It was contrived that the pension of the Apex Scale retirees would always be linked to whatever the revised Apex Scale is in future. Since most of the IAS/IFS officers retire in the Apex Scale, this decree eternally ensured OROP for this class. To meet any murmur to the stratagem, some Apex Scale peanuts were also flung at a few posts in some other services, including the defense forces. Army commanders and a large number of Lt Generals and their equivalents in the other two forces were also granted this privileged scale. The main thrust has always been to

ensure that no senior person gets less than a junior. That is common sense but currently this is not the situation. This lacuna is further exacerbated by the fact that though the law on OROP was settled by the Supreme Court seven years ago in the SPS Vains case, it was applied by the government only to the petitioner’s rank, i.e. major-general. It defies logic because what it means is that every rank in the armed forces must petition the courts separately and seek relief or so the government would want. While retired IPS officers were practically granted OROP when they challenged the pension fixation formula and are now in litigation with the government over it being implemented, the IAS cheerfully sail on, enjoying the benefit. Herein lies the rub. Let’s repeat the mantra. If it is valid for the IAS, why is it not valid for the armed forces? “Why should old retirees get the same pension as new retirees? Why don’t they apply the same principle to their own class? Why should old

retired secretaries get the same pension as newly retired secretaries? Doesn’t it speak of their double standards?” asks a brigadier. Eloquently. DIFFERENT RULES Let’s leave aside all other considerations, including the sizeable gaps in temporary duty compensations, special sops for the ITBP, the BSF and the CRPF. What’s more, the privileges being given to persons who earn gallantry awards are better than what is being given to army personnel. A senior exserviceman said to me: “What is even more surprising is the fact that if an army man is on deputation with any force under the Ministry of Home Affairs (MHA), he gets the same privileges that the MHA gives to CPOs (Central Police Organization). But if the award was earned under the Ministry of Defense (MoD), the privileges are less. Plus, all CPOs get temporary duty allowance and special disturbance allowance if they are employed in CI/CT (counter insurgency and counter terrorism) grid and if they carry INDIA LEGAL September 30, 2015

LEAD/ OROP

MEN OF METTLE A retired armyman with his medals at the Jantar Mantar protest

out patrolling beyond some three km of the headquarters! No army guy can claim that, whereas most CPO persons file such claims as a routine!” Even if we take all these issues and place them in cold storage and just seek the reintroduction of the OROP in its plainest form, we still find official resistance and that is what one cannot understand. By this inordinate half-hearted acceptance, the government has robbed the armed forces of the satisfaction of being given their just dues. It now looks like a tooth is being pulled out and even if the OROP is reinstated in full measure, the crockery of reluctance that it is served on makes it unpalatable. HITTING MORALE When you renege on a promise and finally “surrender”, it not only spawns disenchantment but also generates bitterness that is often translated into more demands. And while a government can think it “safe” to take liberty with retired service personnel, it fails to appreciate that those in service can feel the ripple effect. This is dangerous. You do not want those in active service to conclude they are merely tolerated. After all, they will also retire one day. Much of the civilian indifference is bed-

September 30, 2015

rocked in the history of peace. Those not in uniform find it easy to downplay the forces when security is not threatened. It has been 44 years since the last all-out war in 1971. Such a large standing force in a time when weaponry has changed the paradigm produces the foolish notion that such a force is not needed. The truth is that not only is it needed, but it must be constantly combat-ready. Part of that readiness is morale and if morale droops, then the readiness is compromised. Equally integral to this state of mind is the comfort derived from knowing that if anything happens to the soldier, his family will be looked after. In fact, one of the provisos should be the parity given to war widows in pensions. That makes good sense. It is far too easy to forget that peace is predicated to a strong defense and there is no other deterrent quite like it. From the chill of Aksai Chin to Jalep La and Nathu La, from the heat of the desert in Rajasthan to the rugged terrain of the western front, from protecting our skies and our coastal waters, these men and women wear their uniform with pride. And every day, place their lives at risk. Suffice to say the OROP per se is not only justified, it is so overdue that with every passing day, the schism gets wider. India cannot afford that. Put a timeline on OROP implementation so that it wins itself some credibility. When will the oldest war widow get the revised pension? When will the soldier without a limb find a swollen paycheck? When will the retired general from 20 years ago find parity with the general who retired yesterday? After the six months given to the judge to make his report and no limit on studying it? At the time of review after five years when this government may not even be in power? Next year? The year after? No one has answer...because no answer has been given. When does my aunt get her OROP pension...echo answers when. IL

LEAD/ OROP/Supreme Court

Rapped on the Knuckles

The government was pulled up by the Supreme Court over delay in implementing OROP and had a contempt petition coming up against it on September 28 By Venkatasubramanian

HE timing of the decision to implement OROP suggests that the ruling party at the center might have been concerned about an adverse political fall-out if it was delayed any longer. However, a plausible reason behind the timing is that any further delay might have led to a serious embarrassment in the Supreme Court. This is because on

“This was part of your manifesto for the Lok Sabha elections. You must keep your word.” —Justice TS Thakur who heard the contempt petition on OROP along with Justice Adarsh Kumar Goel 30

September 30, 2015

September 28, a contempt petition against the government for not complying with its direction to implement OROP, as given in its 2008 judgment, was slated to come up for hearing before a two-judge bench. It was only on February 16 this year, that a two-Judge bench, comprising Justices TS Thakur and Adarsh Kumar Goel, while hearing this contempt petition, granted three months’ time to work out the modalities for implementation of the OROP. The bench had then warned that no further time would be granted for its implementation. Reports said Justice Thakur reminded the government: “This was part of your manifesto for the Lok Sabha elections. You must keep your word.” Yet, when the same matter came up on July 8 before another bench comprising Justices Thakur and R Banumathi, the

Justice R Banumathi, along with Justice Thakur, gave more time to the center to implement OROP, perhaps trusting its word.

matter got adjourned to September 28, as the bench probably trusted the central government’s word that steps were being taken to implement it and that it would come up with its decision at the next hearing. It is unlikely, observers say, that the bench would have accepted any further excuses on the part of the government to delay the decision.

hat apart, the Supreme Court’s judgment in 2008 in the case of Union of India vs SPS Vains (Retd) and others, which is the basis for the contempt petition before it, offers complete justification for OROP. Delivered by Justices Altamas Kabir and Markandey Katju, this judgment written by Justice Kabir, had held that there could not be disparity in payment of pension to officers of the same rank, who had retired prior to the introduction of the revised pay scales, with those who retired thereafter. Respondents in this case had urged the court to consider differentiation between officers holding the same rank on the date of retirement as erroneous and violative of the right to equality guaranteed under Article 14 of the constitution. The central government had argued that the Punjab and Haryana High Court, which had decided this case under appeal in the Supreme Court, had erred in directing that the pay of major-generals who had retired

prior to January 1, 1996, be refixed according to the revised pay scales so as to give them the benefit of higher pension. The respondents in the case had, however, contended that in view of the Constitution Bench decision of the Supreme Court in DS Nakara and others vs Union of India (1983), the fixation of a cut-off date as a result of which equals were treated as unequals, was wholly arbitrary and had been rightly interfered with by the High Court. In DS Nakara, the Supreme Court had held that a class of pensioners could not

Justices Altamas Kabir and Markandey Katju held in 2008 that there could not be disparity in payment of pension to officers of the same rank. INDIA LEGAL September 30, 2015

NATIONAL BRIEFS

LEAD/ OROP/Supreme Court

Legal expert Dr Ashok Dhamija supports the right to receive the same pension when armymen and civilians retire from the same position with the same length of service, irrespective of the date of retirement.

September 30, 2015

ing of the contempt petition. A corollary to this decision of the government is whether OROP could apply to civilian pensioners. It is argued that military personnel do not serve for as long as their civilian counterparts as most soldiers retire between the ages of 38-40, while most officers retire at 55. This means that those joining the armed forces are expected to lose several years’ income. But the case for extending the OROP formula to civilian pensioners cannot be dismissed on this ground alone.

be divided for the purpose of entitlement and payment of pension into those who retired by a certain date and those who retired thereafter. Such a classification cannot stand the test of Article 14, the Court had held. The central government justified the cutoff date in view of the limited financial resources available to cover the additional expenses if the pay scales were revised. The respondents had warned that the arbitrary decision to discriminate between the two sets of officers belonging to the same rank in the matter of payment of pension was bound to adversely affect the morale of senior officers of the rank of major-general, which was, in fact, the feeder post to the rank of lieutenant-general from amongst whom the chief of army staff is ultimately chosen. The Supreme Court had, in this case, dismissed the government’s appeal by directing that the pay of all pensioners in the rank of major-general and its equivalent rank in the two other wings of the defense services be notionally fixed at the rate given to similar officers of the same rank after the revision of pay scales with effect from January 1, 1996. The court had directed the government to pay the pensioners with prospective effect from the date of filing of the writ petition and to pay them the difference within three months from the date of the judgment, that is, September 9, 2008, with interest at 10 per cent per annum. It is the central government’s failure to comply with this directive of the Supreme Court, which has led to the fil-

n 1971, a Constitution Bench of the apex court had held that pension is not a bounty payable on the sweet will of the government and that the right to pension is a valuable right vesting in a government servant. More significant, the Central Administrative Tribunal (CAT)’s Principal Bench, in the case of All India S-30 Pensioners’ Association vs Union of India, (OA 937/2010 decided on 20.11.2014) had held that SPS Vains decision of the Supreme Court would hold good in the case of civilian officers also. Thus, CAT held that the office memorandum dated 18.11.2009 of the central government (which said that the Supreme Court’s ruling in SPS Vains case was not applicable to civil pensioners) was illegal. It said it was contrary to the law laid down by the Supreme Court in SPS Vains and DS Nakara cases and the same was quashed and set aside by CAT. As this decision of CAT still holds the field, the government cannot legally refuse to extend OROP to civilian pensioners unless it is successful in getting it overruled by the Supreme Court. On May 29, 2015, legal expert Dr Ashok Dhamija in a post on his website, tilakmarg.com, supported this decision and suggested that any contrary rule would violate the fundamental right to equality guaranteed to the pensioners under Article 14. This Article mentions the right to receive the same pension when they retire from the same position with the same length of service, irrespective of the date of retirement. The case for extending OROP to civilian pensioners appears to have some legal basis unless the government comes up with more convincing arguments against it. IL

SC stays libel cases against Swamy THE SUPREME COURT, on September 7, stayed three cases of criminal defamation, filed against BJP leader Subramanian Swamy by the Tamil Nadu government after Swamy allegedly made comments about Chief Minister J Jayalalithaa on social media. Swamy argued that the charges against him in this case were a violation of freedom of expression and said sections 499 and 500 of the Indian Penal Code violated the fundamental rights guaranteed by the constitution.

Indian woman withdraws case against Uber AN INDIAN national, who had filed a case against Uber Technologies in a US federal court in January, voluntarily withdrew her case recently. The court docket sheet did not mention the reason for the withdrawal of the lawsuit. The woman had, in December, accused an Uber driver, Shiv Kumar Yadav, of rape and alleged that he had threatened to kill her. The victim’s lawyer, in a statement, held Uber responsible for the “significant physical and emotional harm” caused to the woman.

Beef ban in J&K ON HEARING a PIL against cow slaughter, the J&K High Court has directed the state government to implement a ban on the sale of beef. The PIL said that slaughtering and sale of bovine animals is rampant in parts of the state and this affected the religious sentiments of a section of society. The court directed the police to ensure there is no sale of beef and take strict action against those who indulge in it. It reportedly observed that the Divisional Commissioner of Kashmir did not file a proper response on the smuggling and slaughtering of bovine animals and the sale of the meat.

Is Nabam Tuki above law? IS ARUNACHAL PRADESH CM Nabam Tuki (right) the most powerful head of state in India as far as taking the judiciary head on is concerned? As PWD minister in the state, Tuki had awarded various contracts to his family members, which included his wife and brother. He even cocked a snook at a stay on the matter from the Gauhati High Court, (GHC) and continued awarding contracts to his family members. A PIL in this regard was pending in the GHC for over a decade. When Justice J Chelameswar of the Supreme

Durga Puja for sex workers

THE CALCUTTA High Court, on September 4, allowed the sex workers of Sonagachi (known as Asia’s largest red light area), in Kolkata, to take on rent a community hall to organize their Durga Puja celebrations. Hearing a plea filed by Durbar Mahila Samanwaya Samiti (DMSS), which works for the rights of the sex workers, Justice Dipankar Datta permitted sex workers to use the Shubham community hall inside the red light area. The hall, which is run by the Kolkata Municipal Corporation, will now be used to organize largescale pujas so that more and more people can participate in the festivities. Sex workers from 60 red light areas are expected to attend and enjoy the festivities at Sonagachi.

Court was the chief justice of the GHC, he had made an observation that the matter needed to be investigated by an independent agency. Since then, this matter was pending. When the issue was taken up by the acting chief justice of the GHC, K Sreedhar Rao, Tuki tried to get the matter adjourned at any cost. Ultimately, some of the lawyers appearing for Tuki called for a strike in the Bar. That has been declared illegal by the GHC. But the matter was decided and a direction was given for a CBI inquiry. After this order, lawyers of Tuki met the CJI with one representative of the Bar, and the next day Tuki got a stay against the CBI enquiry. INDIA LEGAL September 30, 2015

MEDIA/ Defamation Cases

Defamation Deluge This year has already seen 11 defamation suits against the media. In one case, the Bombay High Court stepped in and asked NSE to pay damages to Moneylife, giving a shot in the arm for the Fourth Estate By Ajith Pillai

Moneylife and Debashis Basu, the editor and publisher of the portal, as costs. In addition, the court also imposed a penalty of `47 lakh on NSE and directed it to deposit the money to Tata Memorial Hospital and Masina Hospital, Mumbai.

o why did NSE drag Moneylife to court? The story has its origin in January 2015 when an anonymous whistleblower dashed off a note to BK Gupta, a senior official with market regulator Securities and Exchange Board of India (SEBI). In it, he alleged that market manipulation involving vast sums of monies was taking place because the sophisticated computerized system was speedily accessed by “certain vested brokers to get market price information ahead of the rest of the market and thus enabling them to front-run the rest of the market”. A copy of the whistleblower’s note was marked to Sucheta Dalal. The website was wary of publishing it

The import of the high court’s verdict can’t be overstated. Journalists are often confronted by allegations from aggrieved parties that their response was not sought. without checking the veracity of the allegations made. Finally, five months after it received the anonymous note from the whistleblower, Moneylife approached SEBI as well as the NSE management for their reaction. On June 11, Dalal sent an email to SEBI chairman UK Sinha, a copy of which was marked to NSE’s CEO Chitra Ramakrishnan and vice-chairman Ravi Narain. There was no response and a reminder was sent on June 15, followed by text messages. When no answer was forthcoming, Dalal decided to put the whistleblower’s note in the public domain on June 19. In his order dismissing the NSE’s

EXPOSING CORRUPTION (Below) The anonymous note from a whistleblower to SEBI, alleging irregularities committed by vested brokers

W IN MEDIA’S FAVOR (Right) The Moneylife report on the Bombay High Court’s verdict, quashing the `100-crore defamation suit filed by NSE against it

September 30, 2015

ILL 2015 go down as the year of defamation cases against the media in India? Already 11 suits of a serious nature involving substantial demands for compensation have been filed. The latest one, last month, was the whopping `5,000-crore damages sought from Bennett, Coleman & Company Limited (BCCL), the publishers of The Times of India, by BSES Ltd, a power distribution firm run by the Anil Dhirubhai Ambani Group (ADAG). The paper was served the notice because it published a series of articles based on a draft report of the CAG which allegedly damaged the image of BSES. Given this backdrop of the press caught in legal wrangles, the September 9 judgment of the Bombay High Court dismissing the `100 crore defamation suit filed by the National Stock Exchange (NSE) against the financial news and investment portal, Moneylife, is a significant shot in the arm for the media. The court not only dismissed NSE’s demand but directed the bourse to pay `1.5 lakh each to Sucheta Dalal, the managing editor of INDIA LEGAL September 30, 2015

MEDIA/ Defamation Cases

reports against the exchange. The exchange has sought withdrawal of those reports etc, as well as, has made a claim of `100 crore (which can be revised upwards).”

Singapore, is someone who obviously understands the working of the system in NSE. His letter details how faster connectivity and access to information about stock prices was being provided to select brokers who were trading in huge volumes, outwitting competition and raking in profits.

LEGAL VICTORY (From left) Sucheta Dalal, the managing editor of Moneylife and Debashis Basu, the editor and publisher of the portal

defamation suit, Justice Gautam S Patel of the Bombay High Court took cognisance of the emails and text messages and observed that “....NSE ignored three messages sent across by Ms Dalal seeking a response before the story was published. This shows that either the NSE was arrogant or there was an element of truth in the allegations, and that NSE had nothing to say”.

he import of this observation cannot be overstated. As a journalist, one is often confronted by allegations from aggrieved parties that their response was not solicited. The receipt of letters, emails and text messages are often conveniently denied. In this case, the emails sent to SEBI and NSE were factored in by the judge when dismissing the defamation petition. NSE initially took time to act. It was a little over a month after the whistleblower’s note became public that it decided to file the defamation suit. Its press note released on July 22 was terse: “The National Stock Exchange has filed a defamation suit today, against an organisation and its representatives who published unsubstantiated and misleading

September 30, 2015

he eight-page whistleblower’s note which is at the centre of the controversy is not easy to comprehend. It is punctuated by complex technical references which cannot be easily understood for those unfamiliar with the working of a modern digitalized stock exchange. Dalal, in the June 19 story accompanying the note, puts things in proper perspective and also explains why Moneylife decided to publish a copy of the whistleblower’s letter. To quote: “High-frequency trading using collocation (direct data transfers through computers hooked to stock exchange servers which helps select brokers access prices a split second before others) that give traders advantages by a few milliseconds have come to occupy the centrestage of equity markets all over the world. Such automated trading, which executes pre-programmed instructions, generating thousands to millions of trades every trading day come out of black boxes designed by whiz kids in the secret corners of trading firms. If deployed unfairly, a tiny unfair advantage can translate into crores of rupees of illegal or unfair profit. “Moneylife has repeatedly argued that India has no system of monitoring complex automated systems, leave along trading transaction. Consequently, organisations that operate such technology have become a law unto themselves, supervised by nobody. Even when there is a major glitch or a fat finger trade, no report is put into the public domain... Fortunately, we have in our possession a detailed document that blows the whistle on what’s possibly going on in NSE.” The whistleblower, who works in the technical wing of a hedge fund company in

“....NSE ignored three messages sent across by Ms Dalal seeking a response before the story was published. This shows that either the NSE was arrogant or there was an element of truth in the allegations, and that NSE had nothing to say.” — Justice Gautam S Patel of Bombay High Court

According to him, the difference between a few microseconds can translate into crores in profits. Such high frequency trade (HFT) is reflected in huge ups and downs or “froth” in the market. Those with speedy access can hedge the price in such a way that they can exit just milliseconds before the price normalizes. The editors of Moneylife have welcomed the high court ruling although they did not wish to comment on it without reading the order in detail. The NSE spokesperson was understandably defensive: “The motion is dismissed. Since we have not received the final copy from the court, we are not in a position to comment further. However, it goes without saying that, whatever is the court order, NSE will respect that.” It is pertinent to end with an observation reportedly made by Justice Gautam Patel on July 24 while hearing the NSE petition: “You cannot use defamation to gag the press. How is it defamation when Ms Dalal sent you questions before publishing the article and you (NSE) chose not to respond to the query?” IL

MEGA DEFAMATION (Above) This is one of the stories in The Times of India which was based on a draft CAG report that invited a `5,000-crore damage suit by BSES

INDIA LEGAL September 30, 2015

LEGAL EYE/ Death Penalty

Tied up in I Painful Knots Contrary to the notion that hanging a person can bring unconsciousness and painless death, errors can cause some to die with intense pain. Is there a more humane way to execute? By Sachin Dhawan

Anthony Lawrence

September 30, 2015

DEATH BY HANGING (L-R) Justice PN Bhagwati feels hanging inflicts physical torture and pain; Yakub Memon, who was hanged after his mercy plea was rejected in July

N the wake of Yakub Memom’s execution, much ink has been spilled on debating the desirability of retaining the death penalty in India. But what has not been examined as closely is the means by which the death penalty is administered. Abandoned in many other parts of the world, judicial hanging is still relied upon in India to carry out death sentences. Section 354 (5) of the Code of Criminal Procedure, 1973, specifies that a person sentenced to die shall be “hanged by the neck till he is dead”. While earlier incarnations of the noose might have been rudimentary and unscientific, the long drop method currently in use allegedly brings about immediate unconsciousness and painless death via “dislocation of the cervical vertebrae” (cervical fracture).

GRUESOME DEATH However, recent evidence generated by medical studies undermines the view that hanging is painless. As a result of errors that preclude the occurrence of cervical fractures, hangings can be painful and gruesome. A 1992 investigation conducted in the UK found cervical fractures in only six out of 34 people hanged by the long drop method. Another study, conducted in 2009, confirmed that cervical fracture is only one of many “pathways” by which death will result in a hanging. An American appeals court, referring to the long drop method, confirms that “the legendary ‘hangman's fracture’ or cervical fracture is one of the less common routes to unconsciousness and death”. These findings show that there is no way to ensure that cervical fracture will always or even routinely occur in a hanging. Hanging is thus akin to a game of chance, wherein a cervical fracture may or may not occur. Not surprisingly, Rajesh Pande, a critical care specialist in Delhi and secretary of the Indian Society of Critical Care Medicine, National Capital Region, concludes that a “more humane method of execution would be lethal injection”. In the absence of cervical fractures, “hanging is undoubtedly accompanied by intense physical torture and pain” in the words of Justice PN Bhagwati. In fact, painful and gruesome routes to death like strangulation and decapitation occur with an alarming degree of frequency. For instance, the 1992 investigation referred to above found

that almost half of the hanged persons died partially or entirely due to strangulation. CRUEL DEATH It turns out, moreover, that hanging victims can experience intense pain even when cervical fractures occur. Dr Phillip D Swanson, former head of the neurology department at the University of Washington has testified that “even if the spinal cord is severed instantaneously (resulting in a cervical fracture), this does not necessarily cause unconsciousness”. The conscious victim undergoes a torturous experience wherein he feels the intense pain of his neck being dislocated. Such “lingering deaths” are cruel and degrading. Making matters worse is the severe shortage of hangmen in India. As journalist Haima Deshpande points out, central prisons across the country cannot secure the services of hangmen “even though the candidate need not have any previous experience nor does he have to be literate”. Both the Supreme Court of Washington and in India endorse the notion that hanging involves considerable skill. But India cannot even secure the services of unskilled and inexperienced hangmen. Even if India were to secure the services of

people willing to do the job of hangmen, unlikely though that circumstance may be, hangings are still unlikely to become scientific. This is because they are performed so infrequently that experience and skill are that much harder to accumulate. So the chances of a botched hanging remain intolerably high. Distressingly, even skill by hangmen would probably not make hanging an errorfree science, as experiences in both the UK and the US attest. In his book, “A History of Capital Punishment,” author John Lawrence says: “[e]ven in nineteenth-century England… when professional and experienced hangmen followed carefully calculated tables and conducted hangings regularly, it was not uncommon for the executioner to select either too short a rope…or too long a rope...” The American case, State v. Frampton highlights similar accounts of botched long drop hangings. So the chances that hangings will be conducted scientifically in a climate of scarcity of skilled and experienced hangmen are extremely low. Thus, medical evidence clearly shows that errors in hanging cause some people to die very painfully and gruesomely. Subjecting someone to such a risk of error is anything but just, fair and reasonable. IL

The conscious victim undergoes a torturous experience wherein he feels the intense pain of his neck being dislocated.

INDIA LEGAL September 30, 2015

LEGAL EYE/ Undertrials

Innocent &

Framed!

Two judgments highlight serious flaws in the criminal justice system, which lets undertrials languish in jails and innocents be framed and even sentenced to death By Kaushik Joshi in Ahmedabad

HOULD the poor who cannot furnish their bail bond due to financial constraints languish in jail? Or should the state step in and help? And what about our investigative agencies—should the judiciary repose complete faith in the conclusions they draw? The first two questions were examined by the social justice bench of Justice Madan B Lokur and Justice UU Lalit of the Supreme Court in the course of hearing a PIL alleging inhuman conditions in 1,382 prisons across India. The court crucially observed that poverty can’t be a ground for keeping undertrials in custody. In their order dated April 24, 2015, the judges directed the empanelled lawyers of all the State Legal Services Authorities to take up cases of prisoners accused of compoundable offenses and undertrials, who have completed half of the jail term which they would undergo in case of conviction. The court also asked all state governments and union territories to co-operate. It took note of the fact that 67 percent of inmates in our prisons are undertrials. CONVICT’S PSYCHE The situation clearly underlines the fact that there are systemic flaws in our criminal justice system— including arbitrariness in investigation and inordinate delay in trial. It also brings into focus, particularly in the light of the Yakub Memon case controversy, whether our criminal justice system can be relied upon to mete out a sentence of such extreme nature as the death penalty. It often does not take into account the impact of the grave penalty on the psyche of the convict and financial and social implications for his or her family. A big question mark looms large on whether we should continue

with death penalty when many countries have done away with it. In the Bachan Singh vs State of Punjab and Santoshkumar Bariyar vs State of Maharashtra, the Supreme Court lamented the lack of empirical research on death penalty in India. In the bewildering labyrinth of our criminal justice system, access to legal aid is often denied. A majority of the death row convicts are found to be from backward castes, Dalits and minorities. And most of them are often convicted on the basis of recoveries arising out of confessions in a police station, which is inadmissible as evidence in a court of law. This brings up the question of whether our police allow undertrials access to the safeguards, if any, in our criminal justice system. The apex court judgment (May 16, 2014) in the infamous terror attack on Akshardham temple in Gandhinagar (September 24, 2002) throws some light on this aspect. The Supreme Court, while acquitting all the six accused, of whom three were earlier sentenced to death, observed that “fiction must make sense”. This is a telling comment on the capricious narrative of the investigators. The court further observed: “One needs to express anguish at the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and framed grievous charges against them, which resulted in their conviction and subsequent sentencing. There is a need to reinvestigate the dreaded terror attack and unveil the real culprits.” INHUMAN TREATMENT I met two of the three death row convicts acquitted by the Supreme Court. One of them, Mufti Abdul Qayyum Mansuri, has even written a published account detailing the maltreatment he underwent while in custody. The book—11 Years Behind Bars—has a story to tell and must be read by politicians, journalists, police officers and those who serve in the judicial system because of the insight it provides on the extent investigators

UNI

NO ROOM FOR MERCY (Above and left) The then DCP DG Vanzara investigated several terrorist-related cases, including the Akshardham attack

can go to when they decide to frame an innocent citizen. Since, 42-year-old Mansuri has a photographic memory he recorded his experiences behind bars in great detail after he was acquitted in the Akshardham terror attack. Originally written in Urdu, the book has since been translated into English. What happened in the 11 years while he was in custody is a blood-curdling account. In the course of his narrative, Mansuri describes what he calls a typical “club party” that he witnessed at the Crime Branch in Ahmedabad. A group of about six burly cops brutally clubbed the detainees. They “pounced upon the detainees like hungry

The Supreme Court, while acquitting all the six accused in the 2002 Akshardham attack, observed that the police caught innocent people and framed grievous charges against them, which led to their conviction and sentencing.

Lalit khitoliya

September 30, 2015

INDIA LEGAL September 30, 2015

LEGAL EYE/ Undertrials

TECH/ Surveillance Tools

wolves with clubs...they used to beat them until they themselves got tired or the victim became unconscious,” he alleges. Mansuri further alleges that bullets were fired at him while he was blindfolded only to frighten him. According to him, once, those at the party even poured petrol into his anus and gave electric shocks on his genitals. “At the Crime Branch, they hit me on the palm, on the back and on the soles,” Manuri further alleges. “When I prayed to God, the DCP, would tell me: ‘Your Allah has deserted you and come to us. We have the power, authority and everything. What do you have? If God is with you, break the chains and get free.’” CASES TO REFER? (Top and above) The Godhra carnage; the slain Gujarat home minister Haren Pandya

September 30, 2015

JUDICIAL CUSTODY The torture was such that Mansuri says he and other co-accused felt a sense of relief when they were chargesheeted in the Akshardham attack case and taken to the Sabarmati prison. Judicial custody meant they would escape the barbarity they were subjected to at the Crime Branch. Mansuri’s world has changed a lot during the 11 years he spent in prison. His father is dead and his son, then a child, has become an adolescent. And his family has shifted residence. The main evidence against him was the two letters allegedly written by him, which were recovered from the two fidayeens involved and killed in the attack. This “evidence”, Mansuri alleges, was concocted. “For three days and nights, they made me copy a letter that they had given me. They would ask me to copy it several times to ensure that each copy looked like the other. They beat me

to the pulp and even took me out to stage an encounter. I was very frightened and did what they asked me to do,” he writes. Luckily for Mansuri, the prosecution failed to substantiate how the letters were found unsoiled and unstained when the bodies of the fidayeens were ridden with bullets and lay in blood. If anything, Mansuri’s book and the apex court’s verdict in the case brings up one vital point for consideration of the lower judiciary—it must look beyond police versions of an incident. BROKEN LIVES The other accused I met was Adambhai Suleiman Ajmeri. Now 52, he is absolutely shattered. He was arrested 11 months after the September 2002 shootout at Akshardham temple and charged with picking up two Pakistan-based fidayeens from Ahmedabad railway station, sheltering them and taking them on reconnaissance missions. “If I were involved in the attack, I would have left home and fled. I have no history of any crime in any police station of India, let alone Ahmedabad,” Adambhai says. During his interrogation, he maintained that he had no knowledge of the dastardly attack. Adambhai alleges that he was asked by a senior police officer to choose the crime he should be charged with from the three terrorism-related cases being investigated by the Crime Branch. One was the Godhra train carnage; the other two were former Gujarat home minister Haren Pandya’s murder and the Akshardham attack. Adambhai says there was no let up in the torture to extract a confession from him. He got relief only when the case came up before the Supreme Court. However, for every instance of truth being upheld, there are thousands of cases where the innocent are punished. There are still others who are accused and do not have the financial ability to afford legal help or to attain bail. Such undertrials crowd our jails and eke out a miserable existence. There surely is a strong case for reforming the police and our judicial system. IL

Canvas Fingerprinting: Business over Privacy A new kind of tracking tool, canvas fingerprinting, is being used to follow visitors to thousands of top websites, from WhiteHouse.gov to YouPorn By Julia Angwin

RAISING ALARM Princeton University’s Arvind Narayanan raised questions about privacy being compromised with the use of canvas fingerprinting technology

irst documented in a paper by researchers at Princeton University and KU Leuven University in Belgium, this type of tracking, called canvas fingerprinting, works by instructing the visitor’s Web browser to draw a hidden image. Because each computer draws the image slightly differently, the images can be used to assign each user’s device a number that uniquely identifies it. Like other tracking tools, canvas fingerprints are used to build profiles of users based on the websites they visit—profiles that shape which ads, news articles, or other types of content are displayed to them. But fingerprints are unusually hard to block: They can’t be prevented by using standard Web browser privacy settings or using anti-tracking tools such as AdBlock Plus. The researchers found canvas fingerprinting computer code, primarily written by a company called AddThis, on 5 percent of the top 100,000 websites. Most of the code was on websites that use INDIA LEGAL September 30, 2015

TECH/ Surveillance Tools

Forcing users to take AddThis at its word about how their data will be used, is “not the best privacy assurance”

A NEW WAY OF TRACKING (Above) Homepage of AddThis website; (Right) Rich Harris, chief executive of AddThis, says the company tried to use canvas fingerprinting as a possible way to replace “cookies,” the traditional way of tracking users

AddThis’ social media sharing tools. Other fingerprinters include the German digital marketer Ligatus and the Canadian dating site Plentyoffish. Rich Harris, chief executive of AddThis, said that the company began testing canvas fingerprinting earlier this year as a possible way to replace “cookies,” the traditional way that users are tracked, via text files installed on their computers. “We’re looking for a cookie alternative,” Harris said in an interview. Harris said the company considered the privacy implications of canvas fingerprinting before launching the test, but decided “this is well within the rules and regulations and

September 30, 2015

laws and policies that we have.” He added that the company has only used the data collected from canvas fingerprints for internal research and development. The company won’t use the data for ad targeting or personalization if users install the AddThis opt-out cookie on their computers, he said. Arvind Narayanan, the computer science professor who led the Princeton research team, countered that forcing users to take AddThis at its word about how their data will be used, is “not the best privacy assurance.” Device fingerprints rely on the fact that every computer is slightly different: Each contains different fonts, different software, different clock settings and other distinctive features. Computers automatically broadcast some of their attributes when they connect to another computer over the Internet. Tracking companies have long sought to use those differences to uniquely identify devices for online advertising purposes, particularly as Web users are increasingly using ad-blocking software and deleting cookies. In May 2012, researchers at the University of California, San Diego, noticed that a Web programming feature called “canvas” could allow for a new type of fingerprint—by pulling in different attributes than a typical device fingerprint. In June, the Tor Project added a feature to its privacy-protecting Web browser to notify users when a website attempts to use the canvas feature and sends a blank canvas image. But other Web browsers did not add

notifications for canvas fingerprinting. A year later, Russian programmer Valentin Vasilyev noticed the study and added a canvas feature to freely available fingerprint code that he had posted on the Internet. The code was immediately popular. But Vasilyev said that the company he was working for at the time decided against using the fingerprint technology. “We collected several million fingerprints but we decided against using them because accuracy was 90 percent,” he said, “and many of our customers were on mobile and the fingerprinting doesn’t work well on mobile.” Vasilyev added that he wasn’t worried about the privacy concerns of fingerprinting. “The fingerprint itself is a number which in no way is related to a personality,” he said. AddThis improved upon Vasilyev’s code by adding new tests and using the canvas to draw a pangram “Cwm fjordbank glyphs vext quiz”—a sentence that uses every letter of the alphabet at least once. This allows the company to capture slight variations in how each letter is displayed. AddThis said it rolled out the feature to a small portion of the 13 million websites on which its technology appears, but is considering ending its test soon. “It’s not uniquely identifying enough,” Harris said. AddThis did not notify the websites on which the code was placed because “we conduct R&D projects in live environments to get the best results from testing,” according to a spokeswoman. She added that the company does not use any of the data it collects—whether from canvas fingerprints or traditional cookiebased tracking—from government websites including WhiteHouse.gov for ad targeting or personalization. The company offered no such assurances about data it routinely collects from visitors to other sites, such as YouPorn.com. YouPorn.com did not respond to inquiries from ProPublica about whether it was aware of AddThis’ test of canvas fingerprinting on its website. Update: After this article was published, YouPorn contacted us to say it had removed AddThis technology from its website, saying that the website was "completely unaware

How You Can Try to Thwart Canvas Fingerprinting

Use the Tor browser (Warning: can be slow) Block JavaScript from loading in your browser (Warning: breaks a lot of web sites) Use NoScript browser extension to block JavaScript from known fingerprinters such as AddThis (Warning: requires a lot of research and decision-making) Use a browser extension that blocks JavaScript from known ad tracking companies such as AddThis. Extensions include Disconnect orAdBlockPlus browser extension with the Easy-

Privacy filter installed. (Warning: Only blocks known ad tracking companies; other websites could still employ canvas fingerprinting)

Try the experimental browser extension Chameleon that is designed to block fingerprinting (Warning: only recommended for tech-savvy users at this point)

Install opt-out cookies from known fingerprinters such as AddThis (Warning: fingerprint will likely still be collected, companies simply pledge not to use the data for ad targeting or personalization)

that AddThis contained a tracking software that had the potential to jeopardize the privacy of our users." A spokeswoman for the German digital marketer Ligatus also said that is no longer running its test of canvas fingerprinting, and that it has no plans to use it in the future. IL

Julia Angwin is a senior reporter at ProPublica. From 2000 to 2013, she was a reporter at The Wall Street Journal, where she led a privacy investigative team that was a finalist for a Pulitzer Prize in Explanatory Reporting in 2011 and won a Gerald Loeb Award in 2010. Courtesy ProPublica INDIA LEGAL September 30, 2015

FOCUS/ Gambling

To Deal or Not To Deal

Many experts advocate legalizing betting in India so that it can be regulated and earns the government revenue. With Goa and Sikkim having already given it legal sanction is the rest of India ready for it? By Kaushik Joshi

September 30, 2015

Photo Courtesy: chancesgoa.com

ONSIDERING the widespread betting market in India and ruthless tricksters who make fools part with their money, it’s time that betting was regulated. Several professionals and online forums have urged the government to introduce legal but regulated gambling in India to bring this underground economy out of the grip of the mafia. Often, illegal profits generated by bookies are used to fund terrorism and drug trafficking. Prof Dheeraj Sharma, who teaches marketing at IIM, Ahmedabad, recently did a study: Should betting be legalized in India? and is all for legalizing it. He says: “Legal but adequately regulated betting in the country would not only benefit the Indian economy but society at large. Gambling in India is heavily restricted except in select categories like lotteries and horse racing. Betting or gambling is illegal in India but there is no law that makes online betting illegal.”

PHONE OPERATIONS Offshore betting companies are apparently using this loophole to lure Indians to bet on almost everything. Most betting syndicates, modules and rackets are operated through phones. Sharma says: “Online gambling is a global business. Bet365 is a UK-based gambling company having 14 million customers in 200 countries.” Indian laws do not apply here as the company operates under a UK gambling license and facilitates the use of the e-wallet. With no servers or advertising in India, Indian authorities can’t do anything to stop Bet365 from servicing Indian punters and customers who can gamble on matches, including IPL cricket, at such sites. Presently, there are some 85 countries which have legalized internet gambling. In India, Goa and Sikkim are well-known gam-

bling destinations, besides Daman. Sikkim is the first state to legalize online gambling, with Playwin, a popular lottery game, being run by the government of Sikkim. In Goa, casinos operate on land and in ships and in 2013, brought in `135.45 crore revenue. Gambling is largely governed under the Goa, Daman and Diu Public Gambling Act of 1976. The study found that the UK and South Africa have a regulation board and law that can keep tabs on gambling operations like match-fixing in sports. In the same way, India can protect every sport from match-fixing and spot-fixing scandals. Sharma proposes limiting the age of bettors to above 18 years, preferably 25, and also limiting the number of transactions in a given period. He also wants a warning for gambling similar to the one for smoking, something like

FREE TO GAMBLE Goa offers plenty of options

Betting Market in India `3,00,000 crore. Possible rate of tax: 20 percent of profits. Possible revenue to the government: `12,000 crore to `19,000 crore.

— Source: KPMG Report

INDIA LEGAL September 30, 2015

FOCUS/ Gambling

A Gambling Panel? Justice Mukul Mudgal, former chief justice, Punjab and Haryana High Court, and Carl Rohsler, a global thought leader on sports betting and gambling laws, have suggested that a regulator like the UK Gambling Commission should be established in India for sports betting. The UK Gambling Commission performs the following functions: Assessment of applicants for betting. Investigation of key officers and owners of operating business. Audit of betting operators to ensure they comply with licensing rules. Investigation of complaints against operators. Power to review and revoke licenses. Power to bring criminal prosecution on its own. Power to deal with disputes on betting and void a bet in case of suspicion.

“Betting leads to losses”. Advocating legislation for betting, Sharma has this to point out: “We don’t have the resources to stop betting. How many cops would you post to check it? And how many judicial officers would you engage to deal with gambling cases?” ADVERSE CONSEQUENCES Jashwant Jajal, 60, a chartered accountant, however, says there is no point in legalizing betting. “Would anyone support legalizing prostitution? Or for that matter prohibition? What is the use of revenue if legalizing proves suicidal for society?” he asks. Prakruti Vyas, a homemaker, is also dead set against legalizing gambling. “When you legalize anything, people think it’s alright to do it. Even adolescents might try it for fun. And the lure of easy money translates into behavioral addiction which leads to adverse social consequences,” she says. Kiran Pithwa, a sportsman who played cricket for LIC, Ahmedabad division,

Jashwant Jajal Chartered Accountant

Prakruti Vyas A Homemaker

Kiran Pithwa A Sportsman

He is against legalizing betting. “Would anyone support legalizing prostitution? Or for that matter prohibition? What is the use of revenue if legalizing proves suicidal for society?”

She is against legalizing gambling. “When you legalize anything, people think it’s alright to do it. The lure of easy money translates into behavioral addiction.”

He supports regulated betting. “What people would do stealthily, should be made legal, but cautiously, so that no loopholes are left. Even sans a law, sports betting is unpatriotic.”

supports regulated betting. “What people would do stealthily, should be made legal, but cautiously, so that no loopholes are left. Even without a law, sports betting with players is unpatriotic because it affects Team India and its prestige. Betting on who will win the toss, for example, is not that serious. We should rein in match-fixing in cricket through law.” Entry 34 of the State List under Schedule VII of the constitution allows all Indian states to have their own laws on betting and gambling. Despite prohibition and arrests, a great amount of money is being bet on sports. And a large amount flows to unlicensed offshore internet sites or illegal bookies, many of whom are allied with organized crime. So, why not regulate it and earn some revenue for the exchequer? Unregulated sports betting raises several issues such as:

Prof Dheeraj Sharma (left), who teaches marketing at IIM Ahmedabad, has done a study on whether betting be made legal in India, and feels that it should be legalized. 48

September 30, 2015

Lack of information on the gambling industry as most of it is in the black market. No accountability on money flows and loss to the exchequer. No way to monitor pattern of bets. Gives boost to criminal activities like match-fixing. Bookies may be dealing with minors.

MANY POSITIVES Regulating betting would make it easier to track and catch anomalies, which can be monitored. Also, authorities can limit the amount of money and opportunities available with fixers and thus, make it less lucrative for them. The police would then be a regulatory authority rather than a preventive one as bookies will be required to keep records of transactions or else have their licenses cancelled. Tracking cash exchanges among betting agents would be easier. Earlier, authorities focused on controlling the physical premises to prevent gambling. But gambling now has gone beyond state and national boundaries, thanks to the internet. In the present scenario, internet-enabled sports betting could be checked by making regulations under the Information Technology Act, 2000. The government

could amend the Public Gambling Act, 1867, to include a section on “authorized games”, the approach adopted by Goa. Also, regulations could be made under Entry 42 of the Union List which pertains to “interstate trade and commerce” and Entry 31 which deals with “posts and telegraphs, telephones, wireless, broadcasting and other forms of communication”. But the big question is whether such regulation will actually check the gambling menace? IL

BLAZING A TRAIL Sikkim is the first state to legalize online gambling in India

INDIA LEGAL September 30, 2015

HEALTH/ HPV Vaccine Trial

Shot of trouble

US-based PATH and ICMR are under the lens for alleged unethical vaccine trials against cervical cancer on thousands of Indian girls. The case is now in the Supreme Court By Meena Menon QUESTIONABLE HEALTH PRIORITIES (Above) Girls in a Gujarat school hold up their immunization cards after receiving their first dose of HPV vaccine

September 30, 2015

n 2009, Kampally Swathi, 13, and Sode Sayamma Kumari, 14, were among 14,000 girls in Andhra Pradesh who were administered Gardasil, the HPV vaccine against cervical cancer. In Gujarat, 16,000 girls were similarly targeted. They were part of a so-called “demonstration project” by ICMR and US-based PATH (Program for App-

ropriate Technology in Health). These trials were later found riddled with unethical practices and led to the death of these girls and five others. After investigations by NGOs and activists, writ petitions were filed in the Supreme Court in 2012 by Kalpana Mehta and others and in 2013 by Sama Resource Group for Women. The matter, which was last heard

on August 8, 2015, has now been moved to November 2015. While the trials were stopped in 2010 after the deaths and protests, an inquiry committee was appointed by the government to look into the matter. However, the 72nd Parliamentary Standing Committee Report (August 2013) on Alleged Irregularities in the Conduct of Studies Using Human Papilloma Virus (HPV) by PATH in India found serious conflict of interest among members of this government committee. UNLAWFUL MANNER The parliamentary committee report said a clinical trial under the title—“Post Licensure observational study of the Human Papilloma Virus (HPV) Vaccination–Demonstration Project—was carried out by PATH in 2009. It was funded by the Bill and Melinda Gates Foundation and ICMR lent its platform to PATH in an improper and unlawful manner. The report said PATH had resorted to an element of subterfuge, as one of its objectives in the proposal submitted to ICMR was to introduce the HPV vaccine into the Universal Immunization Program (UIP). This looks imminent now, with the government asking the National Technical Group on Immunization (NTAGI) to conduct a feasibility study on the vaccine so that it can be introduced in the country. By calling the clinical trials observational studies or a demonstration project, it would avoid the arduous and strictly regulated rules of clinical trials, the parliamentary committee said. The nature of the PATH project made it a post-marketing Phase IV clinical trial under the Drugs and Cosmetics Act, the committee pointed out. It also slammed ICMR for committing to support a vaccine (in 2007) even before it was approved in India in 2008 or to commit to including the drug in the UIP. The Drugs Controller-General of India (DCGI) was charged with irregular approvals for trials and the committee felt his role should be inquired into too. Calling for action against PATH, the committee was concerned that it could set up an office in India without mandatory approvals. It further said it should be made accountable

Amarjeet Singh

for the project and it had violated all laws and regulations laid down for clinical trials. PATH countered all this criticism by saying that ICMR had approved the protocol for the project. It further said it was not a clinical trial, but a post licensure observational study.

WHITHER MEDICAL ETHICS? (Above) Many health trials don’t properly inform the poor about effects of vaccines

CRUCIAL QUESTIONS After the petitions were filed in the apex court, the bench asked the government what action was taken on the parliamentary committee report, if the drug was accepted to be used as a vaccine in India and if the DCGI and the ICMR had followed due procedure. It said the states of Gujarat, Telangana and Andhra Pradesh should be impleaded as parties and asked for the file by which the DGCI had approved the vaccine for introduction in India. The Supreme Court also addressed the crucial question of consent in these trials. Lawyers for the petitioners submitted that “innovative” explanations had been submitted by the state governments for the deaths of the girls, including snake bite and fever, when in actuality, it was due to the vaccination. Strangely, there was no data on the adverse effects the girls suffered from after they were given the vaccine. The court wanted to know the procedure to be followed for consent and what steps are required to find out the suffering of those INDIA LEGAL September 30, 2015

HEALTH/ HPV Vaccine Trial

A parliamentary panel report said PATH had resorted to subterfuge, as one of its objectives was to introduce the HPV vaccine into the Universal Immunization Program.

NEED FOR A THOROUGH PROBE (Above) The apex court has raised several questions about the administering of HPV vaccines

vaccinated, the liability of compensation, if any, and whose liability it would be. It also wanted to know the reasons for choosing Andhra Pradesh and Gujarat for the vaccines and what caused the deaths and ailments of those who were given the vaccine, the protocol for such trials, steps taken to monitor the vaccine and whether consent was taken from the guardians/parents of the girls. DEVELOPING COUNTRIES It all began in 2005 when the ICMR entered into a memorandum of understanding with MSD Pharma Pvt Ltd, a subsidiary of Merck, on HPV vaccine research in India. It was only in 2006 that the US FDA licensed Gardasil, Merck’s HPV vaccine, aimed at preventing cervical cancer. Merck entered into partnership with PATH to find ways of bringing the vaccine into developing countries, according to the

September 30, 2015

petition filed by Mehta. In 2007, PATH signed an MoU with ICMR for its “Global HPV Vaccines—Evidence for Impact” project, a five-year study with three phases— formative research, demonstration project and operations. Two drugs were to be used, Cervarix (not licensed anywhere) and Gardasil (not licensed in India), the petition said. In 2007, Merck began a seven-month trial of Gardasil on 110 girls between 9 and 15 years in violation of both DGCI and ICMR guidelines. It was allowed to do this trial without first carrying out a study on adults, the petition said. On July 9, 2009, AP, along with ICMR and PATH, launched a “demonstration project” for vaccination against cervical cancer. Gardasil was given to 14,091 girls (between 10 and 14 years) in the three mandals of Bhadrachalam, Kothagudem and Thirumalayapelam in Khammam district of AP. A similar project was kicked off in August 2009 in Gujarat in three blocks of Vadodara district—Dabhoi, Kawant and Shinor —aimed at 16,000 girls aged between 10 to 14 years. According to Sama’s report, “Trial and Error Ethical Violations of HPV Vaccination Trials in India” in 2010, children who were part of this project were from poor socio-economic backgrounds and a majority of them were tribal girls whose parents were laborers. Wardens of residential schools where the girls studied were asked to sign consent forms and the parents were not informed. Activists said that there are several layers of violations and the government could not get away by saying there can be no penalty. “Why did you go and select vulnerable participants and why were there no autopsy reports after the deaths. Why should no action be taken against all the offenders? Also, government machinery was used, including the logo of the National Rural Health Mission. This gave the impression to people that it was an official project and that is a serious issue,” said an activist. Will justice be meted out to the victims? IL

—The author has served as deputy editor of The Hindu

HEALTH/ NDPS Act

Caught in Red Tape Changes in the legislation banning access to pain management drugs like morphine used by cancer patients has come as a relief. But the amended law needs more effective implementation By Dinesh C Sharma

ISEASE patterns in India are changing fast. Non-communicable diseases have overtaken communicable ones in terms of total disease burden. Heart disease and cancer have emerged as major health challenges due to changing lifestyles and growing population of the ageing. Although communicable diseases remain a common cause of mortality, noncommunicable diseases like cancer now account for more than half of deaths in India. The overall occurrence of cancer in India is lower than in most high-income countries, but the rate of people dying of cancer in India is relatively higher.

At any given time, India has 2.8 million cancer patients. Two-thirds of cancer cases in India are diagnosed at an advanced stage and more than a million cancer patients every year are estimated to be suffering from moderate to severe pain. Studies in different cancer centers in India have shown that over 90 per cent of patients suffer from pain when they come for help. While treatment of cancer does get attention from the government and policy makers, pain management remains a neglected area not just for cancer patients but for all those suffering from other diseases like HIV as well. Millions of people have to suffer silently in pain because laws and rules limit access to cheap painkillers. LEGAL OBSTACLE The piece of legislation that has become an obstacle in pain relief for cancer and other patients is the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985. The NDPS Act in its original form was a harsh law introduced in mid-1980s as part of the so-called “war on drugs” and has provision for death penalty as the highest punishment for repeat violations. Till 1985, illicit trade in narcotics was covered under various British era legislations - The Opium Act, 1857, The Opium Act, 1878 and The Dangerous Drugs Act, 1930. The need for a new, modern law also became necessary as India had to meet its obligations under various international treaties and conventions to curb trafficking of illicit drugs including the UN Single Convention on Narcotic Drugs 1961, the Convention on Psychotropic Substances 1971, and the Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. Though the main objective of NDPS Act was to control illicit trade in narcotic drugs, it curbed access to these for pain care as well. The availability of morphine (which is derived from concentrated poppy straw) for pain relief was reasonably good till 1985. “This draconian legislation brought in stiff penalties which could even be applicable to minor clerical errors. So gradually pharmacies stopped stocking morphine. The Act mandated several different licenses, typically four to five, all of which needed to be valid at

“This draconian legislation (The NDPS Act) brought in stiff penalties which could even be applicable to minor clerical errors.” —MR Rajagopal, founder, Pallium India the same time. These licenses had to be issued with the concurrence of several government departments making the system next to non-functional,” pointed out MR Rajagopal leading palliative expert and founder of Thiruvananthapurambased group, Pallium India. Between 1985 and 1998, morphine consumption in the country, for medical reasons, fell by an alarming 92 per cent. AMENDMENT FOR RELIEF It has taken over two decades for palliative experts like Rajagopal, health activists, national and international, human rights groups, and patient groups to get this law amended. Patient groups also took the matter to the Supreme Court arguing that lack of access to palliative care violated an

Lalit khitoliya

September 30, 2015

INDIA LEGAL September 30, 2015

HEALTH/ NDPS Act

EXACERBATING MISERY Millions of people suffer in pain due to draconian laws that limit access to painkillers

The NDPS Amendment Act 2014: Expands the objective of the law from preventing illicit use to also promoting the medical and scientific use of opioid medications Creates a new category “Essential Narcotic Drugs” which the central government can specify and about which the power of legislation has been shifted from the state government to central government “State rules” to be announced by the Department of Revenue, Government of India, would be applicable in all the states Currently regulations vary from state to state. The amendment will make them uniform for all states and union territories.

Patient groups argued that lack of access to palliative care violated an individual’s fundamental right to life with dignity that was guaranteed by the Constitution of India. individual’s fundamental right to life with dignity that was guaranteed by the Constitution of India. The department of revenue in the Ministry of Finance, which administers the NDPS Act, finally was convinced that the law needs to be amended to ease restrictions on use of opioids for pain relief. The legislation seeking to amend NDPS Act was introduced in the parliament in 2011 but it was referred to the standing committee. An updated amendment bill was introduced in 2014 and finally passed. The 2014 amendments basically broadened the objective of NDPS Act from containing illicit use to also promoting medical and scientific use of narcotic drugs and psychotropic substances. A new category of “essential narcotic drugs” was added in

September 30, 2015

section 2(viiia) of the Act. This is a list which the central government can notify to meet demands of medical practice. “Essential drugs” will be subject to central rules that will apply uniformly throughout the country. Earlier pharmacies had to obtain multiple licenses from state governments for possession, transport, purchase, sale, distribution, use and consumption. GLITCHES REMAIN The amendment was passed in February 2014, but it took another 15 months for the government to notify the rules. Even after the rules were notified in May 2015, availability of pain killers has not improved for various reasons. “Some ambiguities still remain in these new rules and they are expected to be clarified in a forthcoming government order. The department of revenue and the Ministry of Health together are likely to announce standard operating procedures (SOPs) which the governments of 29 Indian states and 6 union territories would be obliged to follow,” informed Dr Rajagopal.

The power to amend the rules of Essential Narcotic Drugs (Morphine, Fentanyl and Methadone) will be vested with Central Government, ensuring uniformity. Each medical institution will require only a single order approving them as a Recognized Medical Institution (RMI) instead of the current system of 4-5 different licenses

In each state, instead of multiple agencies being involved in the process of licensing, there will be only one—the drugs controller, thus eliminating the interdepartmental red tape

Does it mean that as soon as the SOPs are announced, opioid access for pain relief would improve? “Unfortunately not. From previous experience we know that creation of new rules does not automatically result in practical implementation. A typical example is the amendment of the NDPS Act by the Government of West Bengal in 2012. Nearly three years later, the old redundant rules are still being followed and opioid access continues to be difficult in West Bengal,” he added.

“The amendment to the NDPS Act has not yet made availability of drugs for pain relief of cancer patients any easier. Currently, only hospitals and hospices have access to these drugs, not homes or dharamshalas.” —YK Sapru, founder chairman, Cancer Patients Aid Association Moreover, the regulatory reform will not improve opioid access unless doctors and nurses learn modern principles of pain management and palliative care is included in medical education. This pessimism still persists. Many believe that on the ground, accessing the drugs will not be easy, at least for now. Points out YK Sapru, founder chairman, Cancer Patients Aid Association, Mumbai: “In practice, the amendment to NDPS Act has not yet made availability of drugs such as morphine or pethidine for pain relief in cancer patients in their last stage any easier. Currently only hospitals and hospices have access to both these drugs that makes it impossible to take care of cancer patients in pain at homes or dharamshalas.” Very clearly something has to be done to make the amended law more effective. IL INDIA LEGAL September 30, 2015

STATES/ Himachal Pradesh / Construction Mess

Queen of the Downhills

DISASTROUS PLANNING (Left) Rampant construction has destroyed the natural beauty of Shimla

The Himachal Pradesh Apartment and Property Regulation Act has failed to stall the infrastructural mess in Shimla, which has been fuelled by greedy builders, selfish politicians and lackadaisical officials By Raja Awasthi in Shimla

PRISTINE CHARM Shimla, the hill station, as designed by the British

September 30, 2015

HIMLA, the Queen of the Hills, is being ravaged. In fact, more than half of underconstruction structures there are unauthorized, say officials of the Himachal Pradesh Town Planning Department. With rapid urbanization, Shimla is on the brink of an ecological disaster. In an effort to preserve its already threatened ecological balance, a commission led by Justice (retd) DP Sood had, in 2009, urged the Himachal Pradesh government to scrap the Himachal Pradesh Apartment and Property Regulation Act, 2005. The precursor of this act was the HP Town and Country Planning Act, 1977, which allowed the development of apartments and colonies. The 2005 Act was introduced by the then Congress government and was meant to help builders construct flats for the labor class.

Instead, it inadvertently helped land-grabbing and unplanned construction. The commission recommended that the Act be withdrawn as its basic purpose had been violated. Justice Sood said: “Builders are creating concrete jungles and spoiling the natural forested environment of the state. Since the government lacks the manpower to check and monitor each and every construction activity, the Act should be withdrawn.” In 2013, an amendment was made to the 2005 Act and incorporated provisions relating to the registration of promoters and estate agents. Learning a hard lesson from the tragedy in the neighboring hill state of Uttarakhand, the state government banned construction of buildings in densely populated areas of the state. “All government, semi-government departments and organizations intending to construct new office buildings or re-develop existing ones have been asked

to refrain from the same, particularly in central and densely built-up areas, including peripheral regions,” says Sudhir Sharma, Himachal Pradesh urban development and town and country planning minister.

any experts believe that Himachal is fast becoming an urban nightmare, thanks to haphazard construction. Vast stretches of lush green have been gobbled up in and around Shimla, leaving behind concrete jungles which are spreading beyond the peripheral areas. Over the last two years, many structures have come up, violating the provisions of the Act, in the adjoining villages of Puabo, Dudhli, Bhatta Kufer, Baragaon, Lower Tutu, Chaili and Panthaghati. A government official says: “Construction in old Shimla areas will be banned and minimal construction will be allowed to come

“Builders are creating concrete jungles and spoiling the natural forested environment of Himachal. Since the government lacks the manpower to check every construction activity, the HP Apartment and Property Regulation Act 2005 should be withdrawn.” —Justice (retd) DP Sood

INDIA LEGAL September 30, 2015

STATES/ Himachal Pradesh / Construction Mess

GOVERNANCE/ Housing Issue

LOSING CAUSE? (L-R) Sudhir Sharma, Himachal Pradesh urban development minister, and Vijay Singh Mankotia, State Tourism Development Board vice-chairman, are worried about the mindless construction in the state

Haphazard infrastructural development has also taken a toll on the state’s tourism sector. Despite many tourism spots, Himachal’s share of tourists is a meager 1.3 percent of total arrivals in the country. 60

September 30, 2015

Humbler Abodes for ex-Ministers Ambika Soni and Kumari Selja agree to move house as the Delhi High Court sets aside the fine imposed on them by an earlier order By India Legal Team

up in the new areas. The government is committed to preserving the depleted green cover and in future, felling of trees, even on private land, would not be allowed without the approval of the state cabinet.” However, officials in the Town and Country Planning Department disclose that despite the complete ban on any construction activity, people with prime chunks of land lying idle in the green belt area are trying to pressurize the government to offer some kind of relaxation. “Instead of taking steps to enforce the law to regulate construction activity, the government has been coming out with policies to provide a reprieve to the offenders and in the process, encourages illegal constructions,” says one official. Anuj Puri, chairman and country head, Jones Lang LaSalle, a global real estate services firm, says: “Shimla’s growth has been unplanned and haphazard. A large number of trees have been cut only to be replaced with ugly buildings.”

visit to the city, which is a tourist destination, reveals the sorry state it is in. Most buildings are eyesores, offices are spread out haphazardly, there is litter all over and sewers and drains are choked in many places. Following the earlier relaxations, many leading developers, sensing an opportunity, entered the property market here. These included DLF, Omaxe and other developers. In Kasauli and Shimla, where DLF bought large tracts of land, projects are in a state of limbo now as permissions and sanctions are

yet to be given by the government. Initially, DLF had developed around 20 villas in Kasauli, which attracted buyers. “All this land was bought by developers during the BJP regime. We have not given any permission to them to develop,” says Sudhir Sharma. All this faulty planning is leading to a dangerous situation. With choked sewer pipes, parts of the city are showing signs of sinking and collapsing. Today, town planners are equipped with the latest techniques and they should help the government to determine where they went wrong, what to plan and where to plan. Haphazard infrastructural development has also taken a toll on the state’s tourism sector, be it temple, heritage or adventure tourism. Despite many tourism spots, Himachal’s share of tourists is a meager 1.3 percent of total arrivals in the country. Vice-chairman of the State Tourism Development Board, Vijay Singh Mankotia, says: “The main reason for this is the lukewarm attitude of successive governments at the center towards Himachal Pradesh. Central governments have failed to appreciate and recognize the enormous revenue-generating potential that tourism holds, not just for Himachal, but for all the Himalayan states.” He adds that the mercenaries who had ravaged Shimla are also targeting other destinations like Kullu-Manali, Dharamshala, Dalhousie and Kasauli. Why wait for another disaster to strike in the hills for wisdom to dawn on us? IL — The author is a senior journalist

OLDING on to ministerial bungalows in Lutyens’ Delhi much after their tenure in the Union cabinet is over is a habit with our ex-mantris. But both Ambika Soni and Kumari Selja, Rajya Sabha members who were part of the UPA-II government have now agreed to move to humbler dwellings from the TypeVIII bungalows they were allotted in MarchApril 2014 towards the end of the UPA government’s term in office. A judge of the Delhi High Court had on July 30 dismissed the pleas filed by Soni and Selja against eviction orders issued by the Directorate of Estates (DoE). It had also directed the two MPs to pay `25,000 as costs to the DoE. The two Congress MPs had appealed against the court order and initially sought a complete reversal of the judgement passed by the court. However, they revised their stand through their counsel Kapil Sibal, with both Soni and Selja agreeing to move to Type–VII accommodation entitled to them as members of the Upper House. However, the two MPs raised objection to certain references made by the judge to the effect that they had “wrongfully got the bungalows allotted to obviate the possibility of being left without such accommodation,” should their party no longer be in the government. The judge had also observed that it did not behove well on their part as elected representatives to contend that they were not bound by norms and regulations. On September 7, a division bench of the Delhi High Court, comprising Justice Pradeep Nandrajog and Justice Rajiv Shakdher, disposed off the petition filed by Ambika

MOVING OUT (L-R) Kumari Selja and Ambika Soni

Soni and Kumari Selja. It upheld the eviction notice served by the DoE but set aside the `25,000 costs imposed on each of them. The division bench also expunged certain observations made in the earlier order objected to by the appellants. “In our view, these observations, were not perhaps necessary, in order to reach a decision qua the central issue raised in the petition,” the judges noted. This was relief of sorts for Soni and Selja, although the division bench maintained “that as a matter of propriety, the appellants ought to have held their hands till the declaration of results” before getting the bungalows allotted. Through her counsel, Soni informed the court that she would shift from her present accommodation on Akbar Road in six weeks time. Kumari Selja assured the court that she would vacate her present premises by September 15 and shift to VP House till she was allocated new accommodation which falls vacant in March 2016. IL

The Delhi High Court upheld the eviction notice served by the Directorate of Estates but set aside the `25,000 costs imposed on each of the two appellants.

INDIA LEGAL September 30, 2015

BOOKS/ Parliamentary Questions: Glorious Beginning to an Uncertain Future

stand on record with a view to quelling doubts or misgivings or to bring to focus numerous acts of omission and commission of the government. VAST OPPORTUNITY It is said that by each question there hangs a tale. More often, in the garb of seeking information, questions are slanted or loaded as MPs have certain foreknowledge in many cases. This book rightly emphasizes the importance of questions by telling that no other parliamentary device gives such a vast and equal opportunity to MPs, the party bosses and the backbenchers alike. After all, the ballot system or the shuffle is blind to consideration of party affiliation or seniority. The author has painstakingly documented the evolution of parliamentary questions right from the Indian Councils Act, 1853, the successive doses of constitutional developments which the Britishers introduced halfheartedly and reluctantly and the rules governing the admissibility of questions framed

The book documents the representative subjects on which questions were asked in British India, mirroring the poignant socio-economic problems and the simmering political disquiet of the times. up to the 15th Lok Sabha. The first question asked by the Raja of Bhinga on 16th February, 1893, (under the Indian Councils Act, 1892) raised the depredation let loose by a revenue official on villagers and shopkeepers who had to provide provisions, fuel, fodder, etc, to the huge entourage perforce. The rules, however, did not permit any discussion on the answers provided in the House. Members got the right to ask supplementaries after the Indian Councils Act, 1909 came into force and regular Question Hour started from 1921. The book documents the representative subjects on which questions were asked in pre-independent India, mirroring the poignant socio-economic problems and the simmering political

HALLOWED CONVENTION Question Hour started from British India and was also a part of the constituent assembly from 1946

The Quest for

Questions A The importance of Question Hour in parliamentary democracy cannot be overemphasized. This book documents the questions asked from pre-independent India to now, making it a veritable gallery of history By Bhartruhari Mahatab

September 30, 2015

CCOUNTABILITY of the Executive to the Legislature is the lynchpin of parliamentary democracy. The framers of the constitution always preferred accountability over the stability of the Executive. The device of question is a powerful tool of oversight and accountability. Members of parliament (MPs) need and elicit information on a bewildering range of issues through this medium. The right to ask questions is an inherent and inalienable right of members and this right is exercised to press for action, to make a point on behalf of the constituents, to bring the governmentâ&#x20AC;&#x2122;s INDIA LEGAL September 30, 2015

BOOKS/ Parliamentary Questions: Glorious Beginning to an Uncertain Future

The first question was asked by the Raja of Bhinga on 16th February, 1893. It raised the depredation let loose by a revenue official on villagers and shopkeepers. disquiet of the times, making it a veritable gallery of history.

PARLIAMENTARY QUESTIONS: GLORIOUS BEGINNING TO AN UNCERTAIN FUTURE By Devender Singh Publisher: Orange Books International Price: `595; Pages: 110

September 30, 2015

EXPOSE DEFICIENCIES The book is replete with significant developments and incidents like the first instance when an assurance was given in reply to a question in February 1900 by the government and an instance of 1907 when a whole day was consumed by the questions asked by the Nawab of Dacca and answers given by the government. The questions asked by nonofficial members reflect their unflinching patriotic zeal as every opportunity was seized to expose deficiencies, high-handedness and the autocratic conduct of the rulers and their machinery despite many restrictions and limitations imposed. The author has also foregrounded deep popular concern about the looming uncertainty over the Question Hour. Indeed, “the orderly progression of Question Hour has been besieged by, what look like, scenes of power struggle, of one-upmanship, pandemonium and unruly conduct”. He has attempted answers to some of the frequently asked questions, which are quite instructive and fascinating. Arguably, the idea of asking questions is not purely a Westminster technique, but rooted in India's great cultural heritage and hoary traditions too. The Hymn of Creation in the Rig Veda speculates about the creation and the creator and the Upanishads testify to the great argumentative traditions which are in the form of questions and answers between seers, scholars and kings. Even students in the renowned ancient centers of learning like Takshila and Nalanda were granted admission if they replied satisfactorily. TIME WASTED The lamentable tendency to troop to the well of the House on the slightest provocation and to force adjournments is not only a colossal

waste of time and resources but detrimental to public interest as it blocks the flow of information besides tarnishing the image of parliament. There is an imperative need to suspend the clamor and clash at least during Question Hour so that good use is made of the device of questions to address pressing public problems. No other parliamentary device is so versatile and efficacious in its deployment and reach as a simple, innocuous-looking question. It is in recognition of the time-tested efficacy of questions and as a potentially powerful tool of accountability that, unless directed otherwise, the first hour is earmarked for asking and answering questions. Regardless of disruptions, the idea of shifting Question Hour to another part of the day must be rejected lock, stock and barrel. There is no doubt that searching questions with tenacity of purpose by MPs exposed scandals and forestalled many by creating serious dread in the bureaucracy. The shortcomings, deficiencies, delays, etc, highlighted through questions receive the attention of higher authorities and in great many cases, prophylactic measures are taken to redress the problems. Disruptions and loss of Question Hour is a great but unintended reprieve to those who escape the scourge of oral questions. However, despite the prevailing uncertainty over the fate of Question Hour, the constant increase in the notices of questions and the concern to save it, there is a glimmer of hope. Once the realization dawns upon the members and more so on the leaders of political parties that the device of question is a powerful tool of accountability and oversight and the cornerstone of parliamentary democracy, I am quite sanguine that Question Hour will run smoothly. One hopes that the book, being a work of scholarly research and abiding interest, is translated into Hindi and other Indian languages. It will go well for the larger benefit of legislators, researchers and students of constitutional and parliamentary studies. IL — The writer is an MP and leader of the BJD in parliament

MORE NEWS.../National

2006 train blast verdict A MAHARASHTRA Control of Organized Crime Act (MCOCA) court on September 11 convicted 12 people out of the 13 accused in the Mumbai suburban trains serial blasts case. While one was acquitted, Kamal Ahamed Ansari, Tanvir Ahmed Ansari , Mohd Faisal Shaikh , Ehtesham Siddiqui, Mohammad Majid Shafi, Shaikh Alam Shaikh, Mohd Sajid Ansari, Muzzammil Shaikh, Soheil Mehmood Shaikh, Zamir Ahmad Shaikh , Naveed Hussain Khan

and Asif Khan were convicted for these blasts. Seven RDX bombs had exploded in Mumbaiâ&#x20AC;&#x2122;s suburban trains on July 11, 2006, killing 188 people and injuring 829. The MCOCA judge had concluded the trial on August 19 last year. The examination of witnesses resumed after two years since the Supreme Court had stayed the trial in 2008. At the time of the magazine going to press, the quantum of punishment had not been pronounced.

CRICKETER MAHENDRA SINGH DHONI approached the Supreme Court for quashing a case against him for posing as Lord Vishnu in a publication and allegedly insulting the deity. Dhoni moved the apex court following the refusal of the Karnataka High Court to quash the criminal proceedings against him. The complaint, filed by social activist Jayakumar Hiremath, had alleged that Dhoni was seen on the cover of a business magazine as Lord Vishnu, holding several things, including a shoe. The additional chief metropolitan magistrate had registered a case against Dhoni under Section 295 (injuring or defiling place of worship with intent to insult the religion of any class) along with Section 34 of the IPC (criminal acts done by several persons in furtherance of common intention).

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Meat ban not feasible: Bombay HC TAKING A critical view of the BJP-led government in Maharashtra for implementing the meat ban, Bombay High Court questioned the feasibility of the ban. Seeking a response from the state and the civic body on a plea filed by the Bombay Mutton Dealers Association, a division bench of the HC said imposing a ban on animal slaughter and sale of meat for four days was not feasible in a metropolitan city like Mumbai. â&#x20AC;&#x153;Mumbai is a metropolitan city. Such straight ban on meat cannot be a formula. Ban is on slaughter and sale of the meat. What about other sources? What about packaged meat that is already available in the market?â&#x20AC;? the bench headed by Justice Anoop M asked. The petitioners claimed that the decision was unconstitutional and affected the livelihood of a section of people. September 30, 2015

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GLOBAL TRENDS/ Yuan fluctuation

When China Sneezes, the World Catches a Cold An analysis of how China’s currency policies will change the world By Stratfor Team

AN EMBARRASSED DRAGON (Below) Investors at a brokerage house in Shanghai after Chinese stocks tumbled on July 8, this year

HE recent fluctuations in China’s currency typify the best and worst of a globalized world, where developments in one place can instantly change the political and financial calculations of governments in others. For most of human history, the communities, cultures and economies of the world existed independently of one another, separated as they were by vast distances and diffi-

cult terrain. It would, for instance, take months or even years for news of China to reach Europe across the great Silk Road trading route during the height of its use some 1,000 years ago. Even then, the communities along that route could hardly be considered entirely coherent. But that is clearly no longer the case. And now, as China continues to adjust the Yuan, markets throughout the world will react accordingly, even as they react differently. ANALYSIS There were several reasons behind China’s decision, but it nevertheless came as a surprise to many. In search of stability, China has tied its currency to the US dollar since 1994, usually at a low value relative to the dollar. During the 2000s, the connection helped China keep its exports competitive, with the developed world consuming its output. The West’s economic collapse in 2008 meant that this model could no longer function, and China began trying to grow consumption levels so that the domestic consumer might come to fill the hole left by the faded international market. CHANGING CHINA Transforming from an export-led economic model to a consumption-led one could be described as changing from being like Germany to being like the United States, and China has tried to reproduce some of the advantages that the United States has created for itself in the same role. One of those

Transforming from an export-led economic model to a consumption-led one, China has tried to reproduce some of the advantages that US has created for itself in the same role. advantages is the dominant position of the US dollar in world trade, which means US consumers can go deeply into debt and global demand for dollars will delay the moment at which this comes to a head by those debts being catastrophically called in. Thus China sought to grow international usage of the Yuan, making strides in its attempts to do so. The next step would be for the Yuan to be accepted into the International Monetary Fund’s “currency”, the Special Drawing Right. However, the IMF has said that China would need to liberalize its currency before such a step could take place. The IMF makes the decision every five years, with one originally set for November this year, but the institution recently

SMOOTH SAILING (Above) The Grand Central Market in Los Angeles, US

Photos: UNI

September 30, 2015

INDIA LEGAL September 30, 2015

GLOBAL TRENDS/ Yuan fluctuation

COURSE CORRECTION (Right) Bank of England, the central bank of UK

The depreciating Yuan has made Japan and the eurozone’s currencies float upward. It is a problem as both have gone for quantitative easing policies to devalue their currencies. pushed it back to October 2016. Meanwhile, the peg to the dollar aided China’s strategy as the strengthening dollar over the past two years enabled the Yuan to rise alongside it relative to the world’s other floating currencies, empowering Chinese consumers and helping the changeover from an export- to consumption-based economy. But low global demand has not created a good climate for such change, and growth has been unsteady during this period, slipping to 7 percent this year. The baton pass from an export-driven to consumption-driven economy is risky, and exports need to hold up long enough for the Chinese consumer—and building blocks such as the reserve currency—to develop. When export numbers for July showed an 8.3 percent fall year-on-year, all signs seemed to point toward a loosening of controls, which would both please the IMF and, if the Chinese currency continued to weaken

September 30, 2015

as many in the market expected it to, help boost exports. THE REPERCUSSIONS In the globalized world, where every economy is interconnected with every other economy, the effects of a shift like China's can be felt everywhere. The world's largest economies have tended to move in concert throughout modern financial history, with central banks choosing to tighten or loosen interest rates, often in quick succession. But actions over the past two years have diverged from the rule. While one group is now considering raising interest rates for the first time since 2008, another group is still pursuing quantitative easing programs, which are partly designed to devalue currencies and stimulate growth. China’s dislocation from the dollar, particularly if the Yuan devalues further against the dollar, moves the country from the first group toward the second, with clear consequences: THE US AND UK Following the 2008 crisis, the United States and the United Kingdom were arguably the first to adopt forthright monetary policies to stimulate their economies. Quantitative eas-

ing was pursued on both sides of the Atlantic, and, possibly as a result, these two economies have led the recovery in the past few years. Consequently, for the last 12 months the financial world has focused on a key question: When will the US Federal Reserve raise interest rates for the first time since 2008? The Bank of England is wrestling with a similar dilemma. The interest rate rise will be seen as the first step toward “normality” following the extended period of ultra-low rates, and capital has flowed from emerging markets to the United States in anticipation. Only sporadic growth and low productivity levels, along with stubbornly low inflation figures in both countries, have caused their central banks to delay the rate rise, but recent strong job creation figures led many in the market to expect the United States to make the change in September 2015 (and the United Kingdom in early-to-mid 2016). The US economy does not particularly rely on exports, insulating it from some of the drawbacks of currency strength, which usually hurts exports. But China’s latest move creates another currency against which the dollar can appreciate. Now, a rate hike would likely strengthen the dollar even more, to the extent that it might become an issue for the

US economy. China’s reshuffle, then, may have changed the answer to the biggest financial question of the year; market expectations for the rate rise have slipped back to December and may even move to 2016. EMERGING MARKETS Emerging markets have suffered a torrid few years. Commodity exporters in Asia, Africa and Latin America enjoyed a boom period between 2000 and 2008, when China was consuming their raw materials as part of its production machine and Chinese investment sustained prices for a few years after. But global commodity prices have fallen since 2011, with the economies of Brazil, Nigeria, Russia and several parts of Asia suffering the most, as evidenced by their steadily falling currencies. The Yuan’s depreciation reduces China’s spending power, and unsurprisingly emerging market currencies have continued to decline. Every time the Yuan weakens, it creates more problems for these countries, as many welcomed Western capital during the good times and now have sizable dollar-denominated loans on private balance sheets that are becoming harder to pay back. Meanwhile, the depreciating Yuan has

KEEPING A CLOSE WATCH (Above) Federal Reserve Board in the US

The next step would be for the Yuan to be accepted into the IMF’s “currency”. But, IMF has said China must liberalize its currency before such a thing could happen.

INDIA LEGAL September 30, 2015

GLOBAL TRENDS/ Yuan fluctuation

The Yuan’s fall reduces China’s spending power, and emerging market currencies have continued to decline. Every time the Yuan weakens, it creates more problems for these countries. SPILL-OFF EFFECT (Above) Emerging markets like India will face problems, albeit indirectly

made Japan and the eurozone’s currencies float upward. The development is problematic because both have undertaken quantitative easing policies, in part to devalue their currencies. JAPAN’S PROBLEMS Since coming to power in December 2012, Japanese Prime Minister Shinzo Abe has been pursuing a three-pronged strategy designed to shock Japan out of its economic funk of the past two decades. The first of these “arrows” has involved monetary easing, partly to drop the Yen’s value and stimulate export-led growth and inflation. The plan has not been working. Inflation has remained stubbornly far below its 2 percent target, exports in July were down from the year before, and growth has been highly unreliable, with second-quarter GDP shrinking at an annualized rate of 1.6 percent. Even before China's currency reorganization, talk had begun that the pace of quantitative easing, already redoubled in 2014, would need to be boosted further. Falling Asian currencies relative to Japan will only increase these calls, but there are

September 30, 2015

complications to redoubling quantitative easing. So-called Abenomics has been losing public support. Even within the administration, Abe and Bank of Japan head Haruhiko Kuroda have been divided on the best way to proceed. The former has pushed for more easing. The latter, perhaps more aware of the complications from the Bank of Japan already owning a sizable portion of the available market in Japanese sovereign bo-nds, has pushed for fiscal consolidation. This difference of opinion over Abe's decisions, such as to delay a planned consumption tax hike, and other policies regarding Japan’s military, have garnered the administration its lowest popularity rating since coming to power (in July it was 38 percent, down from 46 percent in June). Abe’s grand experiment is on the ropes, constraining the prime minister’s ability to double down both politically and economically. The time may be approaching for Abenomics to be called off. Under such circumstances, it is hard to imagine Abe remaining in his post. In Europe, the European Central Bank’s quantitative easing program has also weakened the currency, improving eurozone economies. Talk about the ECB extending quantitative easing past its scheduled end in September 2016 has already begun. The decision would not technically be as problematic as in Japan, since Europe's quantitative easing has not gone on as long and the ECB could overcome any lack of available bonds by extending its own selfimposed limits to purchase more sovereign bonds. Still, if Europe considers extending its program, there could be difficulties convincing Germany of quantitative easing's merits, potentially creating undue political issues at a time when the Continent is already deeply fragmented. IL

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DIPLOMACY/ Sri Lanka

New Dawn in Emerald Isle

The defeat of Mahinda Rajapaksa in both the presidential and prime ministerial polls has sown the seeds of a new political order, which will be in India’s interest By Shastri Ramachandaran

ven as Sri Lankan Prime Minister Ranil Wickremesinghe’s call for a “new political culture” resonates in Sri Lanka, to embrace this future, the island republic needs to bury the ghosts that haunt it from its past. Given the resounding mandate of the two elections held eight months apart—the presidential election on January 8 and the parliamentary election on August 17 this year—this task of breaking from the past may appear easy. However, that would be a serious misreading of the diverse challenges facing President Maithripala Sirisena and Wickremesinghe. RAJAPAKSA’S RELEVANCE It is best to begin where the break with the past has to begin, i.e. Mahinda Rajapaksa. Much like in the aftermath of the 1977 Lok Sabha elections in India, where Indira Gandhi continued to haunt the Janata Party government after her authoritarian regime, including the Emergency, was overturned, in

DIVIDE AND RULE PAYS NO MORE (Left) Mahinda Rajapaksa has lost both the Presidential and Prime Ministerial elections this year Photos: UNI

September 30, 2015

Sri Lanka too, Rajapaksa is down but far from out. Unlike in India though, where Indira Gandhi was trounced in the parliamentary and subsequent state elections, in Sri Lanka, Wickremesinghe did not win the elections (either in January or August). It is Rajapaksa who was defeated. And, on both occasions, Rajapaksa conceded defeat even before the full results were out, thereby proving wrong those who had spread rumors of a palace coup in January and a party split in August. Rajapaksa’s vote share is not only sizable, but big enough to cause trouble within the Sri Lanka Freedom Party (SLFP), which is now led by Sirisena. In the August elections, the Rajapaksa-led United People’s Freedom Alliance (UPFA) recorded a vote share of 42.4 percent—a few notches below the 45.7 per cent secured by Wickremesinghe’s United National Party (UNP). The vote share is of more than academic interest because central to the ushering in of Wickremesinghe’s “new political culture” is dismantling of the Rajapaksa regime’s corrupt and authoritarian order, which thrived on patronage and nepotism. Investigations and prosecutions are bound to implicate Rajapaksa and his family members. Therefore, whether Rajapaksa withdraws from the political arena (and lets down the party members who look up to him), or stays

While India would be suspicious of Sri Lanka cosying up to the US, Colombo’s posture of equidistance between the Washington and Beijing is a consolation to New Delhi. as the elephant in the room, would be decided by the option that provides him better protection from the actions of the new government. There is also the matter of wartime accountability, which could put Rajapaksa in the dock. Thus, Rajapaksa’s politics now would be guided by how best to avoid being made accountable for his actions when he was president. This could be problematic for the new government as Rajapaksa has to be dealt with in a way that deprives him political mileage of the kind Indira Gandhi squeezed out of the actions initiated against her for Emergency excesses. TOTAL POLARIZATION The other challenges facing the UNP-led coalition also entail dealing with Rajapaksa and the vestiges of his legacy, such as the polarization of politics as well as of Tamils and Sinhalas. In

HERALDING NEW POLITICAL CULTURE (Below, L-R) Supporters of Ranil Wickremesinghe rejoice at his victory in the elections held in August; The Prime Minister is committed to inclusiveness in an island long beset with Sinhalese-Tamil strife

DIPLOMACY/ Sri Lanka

CHALLENGES AHEAD (Below) President Maithripala Sirisena has tough tasks cut out for him, both nationally and internationally

office and during the elections, he did everything, including spreading fear of the Liberation Tigers of Tamil Eelam (LTTE) making a comeback in the event of a UNP victory. Thus, he ensured total polarization of the Tamils and Sinhalas and sustained the ethnic divide to keep himself entrenched in office. As elections approached, he succeeded in splitting the Tamil parties and groups (after all, he had held 18 rounds of talks with these sections) and polarizing the Sinhala majority between him and Sirisena. As a result, resolving the “national question” has become more complicated for the UNP. It is no more a matter of engaging Tamil parties in credible pro-

cesses for Tamil-Sinhala reconciliation, but it requires reconciliation of the divided Sinhala polity. Negotiating the majoritarian fault lines, winning over Sinhala Buddhist nationalist forces, engaging the disparate constituents of the Tamil National Alliance (TNA) and not disappointing the smaller Sinhala parties in the coalition is a formidable proposition even at the best of times. The more radical Tamil outfits may not have succeeded electorally, but their aggressive opposition to the government and the TNA leadership, viz. the Ilankai Tamil Arasu Kadchi (ITAK), which is the main Tamil party, shows that on both sides of the ethnic divide, there are competitive communalist forces at work. All of these add up to an extremely fraught situation presently. Although the August election reaffirmed the January election’s rejection of authoritarian and divisive politics, elements that can vitiate the atmosphere, obstruct reconciliation and thwart the harmony and social stability required for an economic revival are still at work. Domestic recognition of these realities is evident in the national government’s continued striving for all-round consensus, reflected, for example, in former president Chandrika Kumaratunga being roped in to lead the Reconciliation Task Force. Kumaratunga is the Sinhala politician who went farthest to win over the Tamils and became the president with maximum Tamil support. Her popularity among Tamils so unnerved the LTTE that it tried to kill her. She survived the assassination attempt but lost an eye in the attack. EXTERNAL ENDORSEMENT External recognition of these risks is reflected in the decision of the US and the UN to support the new government with a favorable, collaborative resolution in the September session of the Human Rights Council. This is the second time—the first being in March, after the presidential election—that the US and the UN have explicitly endorsed an internal Sri Lankan investigation into alleged war crimes. Past US resolutions on the issue, which India and China did not support, called for an international probe, and the UN was seen

September 30, 2015

TRANSCENDING POLITICAL DIVIDE (Left) Former President Chandrika Kumaratunga, the most acceptable face for reconciliation task in Sri Lanka, with Prime Minister Narendra Modi in New Delhi

as being “excessively active”. This helps the new government in many ways. On the home front, the nationalists cannot raise a hue and cry over “violation of sovereignty”; and the military leadership is reassured that there would be no action which affects the morale of the forces. At a larger, diplomatic level, relations between Sri Lanka and the US, which were severely strained under Rajapaksa, have a more sustainable basis to go forward and this is of significant strategic advantage to the US. This is a also a big boost for Wickremesinghe, who is perceived as pro-West and “market friendly”. As a result, Sri Lanka may be required to lean away from China and provide more economic and investment opportunities to the West. However, as Sirisena realized, especially during a visit to China, and Wickremesinghe indicated after the election, Sri Lanka is unlikely to burn its bridges with China. INDIAN CONCERNS After the crushing of the LTTE in 2009, China’s wooing of Sri Lanka as another “allweather friend” in the region caused concern in India. Chinese submarines docking in Sri Lankan ports heightened these concerns

Wickremesinghe did not win the elections, either in January or August. It is Rajapaksa who was defeated. On both occasions, he conceded defeat even before the full results were out. because in strategic terms, the island is assumed to be in India’s “zone of influence”. In the last eight months, Colombo appears to have addressed these concerns to New Delhi’s satisfaction. Although India would be equally suspicious of Sri Lanka cosying up to the US, Colombo’s current posture of equidistance between the Washington and Beijing is a consolation to New Delhi. Wickremesinghe’s quest for deeper, more enduring ties with the US is not causing any discomfiture in India because of the good equation Prime Minister Narendra Modi enjoys with him and President Sirisena. There are also a large number of intermediaries, including partymen and businessmen, who are regularly at work on keeping up relations between Modi and Wickremesinghe. The unraveling of the new political culture in Sri Lanka would be watched with interest at home, in the region and other IL world capitals too. INDIA LEGAL September 30, 2015

IS THAT LEGAL?

INTERNATIONAL BRIEFS

Media Going Overboard

Israel bans media from expressing views

Media takes a lot of liberties while reporting on developing stories and creates unnecessary hype. The Aarushi murder case, and more recently, the Indrani case are prime examples. Are there any laws to check such TRP-driven coverage? Can the concerned TV channels or media agencies be sued for such a practice? There is no law in India that restricts or bans TRP-driven coverage of the media. However, reasonable restrictions can be imposed on media as per Article 19(2) of the constitution in the interest of the sovereignty and integrity of India and maintaining public order. If an electronic media gives more footage to a particular story in order to gain high TRP ratings, no restrictions can be imposed unless it violates Article 19(2) of the constitution. The media agencies can’t be sued unless the story is found to be untrue, unreliable, false or manipulated.

THE Israeli Parliament, the Knesset, has passed a controversial law that bans journalists from expressing their opinions on the county’s public broadcasting network. According to a press release, the new public broadcast law was passed with 25 lawmakers approving the legislation and 18 voting against. The law states that broad-

Airline Blues During international travel, if a connecting flight is cancelled and the airline shirks all responsibility, what means of redressal can an Indian national seek? If a passenger misses his connecting flight during international travel, he or she can sue an airline company only if there is some kind of deficiency in services on the part of the airline. However, passengers facing delays due to factors beyond the airline’s control like bad weather and air traffic congestion are not entitled to any compensation. The Directorate General of Civil Aviation (DGCA) formulated rules in 2010 stating the conditions under which a passenger can claim compensation for laxity in services offered by an airline. For example, if the passenger missed his or her connecting flight due to heavy congestion at the airport or if the airline had a genuine reason for such a delay in the interests of passengers, no compensation can be claimed.

A Charge for Service Customers have to shell out service charge at restaurants. Is the charge legal? Can customers refuse to pay it? Service charge is levied by restaurants for services rendered like providing food and drinks, seating, the right ambience, etc. The charge is not levied by the government but collected by restaurant owners and is optional on the part of restaurants. They are free to charge any amount as “service charge” after disclosing it in on the menu card. The rate of service charge levied by restaurants may vary, although normally it is in the range of 5 percent to 10 percent of the bill amount on the range of food and drinks consumed. The service charge is legal if it is clearly mentioned on the menu card. — Answers by Shailendra Singh Illustrations: UdayShankar

September 30, 2015

Nepal suspends commercial surrogacy

Thailand’s legislature rejects draft constitution

NEPAL’S Supreme Court has issued an order to stop Nepalese women from becoming surrogate mothers on behalf of foreigners, reports The Kathmandu Post. The injunction was made by the Supreme Court after a writ petition was filed arguing that surrogacy exploits poor women. Nepal has become a favorite destination for foreigners seeking to have children through surrogate mothers. Until now, commercial surrogacy was allowed in Nepal, as long as the client was a foreign woman. The Supreme Court has ordered the government to respond to a long list of questions regarding the legal rights of parties involved, including the rights and benefits of the surrogate mother, the citizenship of the child and responsibility of the agencies, among others.

THAILAND’S military backed legislature, known as the National Reform Council, rejected a draft of a new constitution. The draft was rejected by a vote of 135-105, with seven abstentions. A new 21-member drafting committee must now be appointed to write a new constitution within 180 days. After the new drafting committee finishes its work, the future draft constitution will be put for a public referendum. The military abolished the previous constitution after it toppled Prime Minister Yingluck Shina-watra last year and General Prayuth Chan Ocha took over after months of unrest. The Junta appointed the National Reform Council to help write a new constitution.

casts should “avoid one-sidedness, prejudice, expressing personal opinions, giving grades and affixing labels, ignoring facts or selectively emphasizing them not according to their newsworthiness”. The law has come in for criticism. The Israel Press Council has urged the Knesset to cancel the law, saying it violates free speech.

Myanmar Prez signs Monogamy Law MYANMAR President Thein Sein signed the Monogamy Bill into law recently prohibiting marriage to more than one person, which many view as an attack on the minority Muslim population in the country. This was reported by Al Jazeera. The bill is one of four recent laws backed by the Committee for the Protection of Nationality and Religion, Ma Ba Tha, a Buddhist group. These are collectively called “Race and Religion Protection Laws”. The Myanmar parliament also approved the Religious Conversion Bill, wherein anyone wishing to change their religion will have to get the approval of a local board.

Chinese court accepts folly, publicly apologizes THE People’s High Court for the eastern Chinese province of Anhui has publicly apologized to 19 people for their wrongful conviction. According to the Asian Correspondent, the apology from the People’s High Court appeared in a local newspaper. The court said it wished to help restore the reputations of the individuals, all of whom were imprisoned in 2012 on charges of illegal fund-raising. The

court overturned the convictions and original indictments. Previous convictions have been overturned, but the court’s apology was exceptional as this is a very rare. INDIA LEGAL September 30, 2015

CAMPUS UPDATE

NATIONAL LAW University, Jodhpur, will organize a national symposium on the theme “Forensic DNA: Isolation and Recovery from Body Fluids” on October 9 and 10. The symposium, organized in association with the Indian Council of Medical Research, marks 30 years since the development of DNA fingerprinting technology. The conference aims to create an inter-disciplinary approach by bringing scientists, lawyers and judges at a common platform. The objective is to enable experience-sharing of experts from these fields—in the laboratory as well as in the court room.

Coherence in Hyderabad SYMBIOSIS LAW School, Hyderabad, is organizing a multi-disciplinary international law conference“Coherence” to be held on October 9 and 10. The theme for the conference is “Inter-disciplinary Integration for Legal Enrichment”. Multi-disciplinary practices (MDP) are said to increase efficiency and may also increase competency and quality of work, since the problems in today’s world are not entirely “legal” or “business”, but an amalgamation of both. The conference aims to bring to the fore, the importance of MDP in enriching the domain of law and to create a platform for research in multiple academic disciplines.

3. Plural of octopus. A: Octopus B: Octopae C: Octopuses D: Octopusi

PRANAV JAIN and Aroon Menon, students of National Law University, Delhi, have developed a website to enable restaurantgoers to calculate the tax on their bill. The website “kitnatax.com” calculates the taxes levied in a restaurant. It helps users plan their meal in advance and also prevents restaurants from overcharging them. The duo is currently developing a mobile application based on the website to make their service more user-friendly. The website not only offers a tax calculator but also reviews how tax-friendly various restaurants are.

A DIALOGUE on “Punishment and Sentencing in a Democratic Society” will be organized by National Law University, Delhi, on October 30 and 31. The dialogue would elicit the views of a cross-section of people, including judges, advocates, legal academics, politicians, police, correctional administrators, media and law students, on the above theme. Though the dialogue would touch upon the diverse forms of punishment deployed by the courts in the day-to-day administration of criminal justice, special focus would remain on death sentence, life imprisonments and probation sentencing.

September 30, 2015

1. Chimera. A: Chinese camera B: Fanciful conception C: Venomous snake D: No such word 2. Correct spelling? A: Caesarean B: Ceasarian C: Cesarean D. Ceasearian

Restaurant taxes

Crime and punishment

4. Fear of ugliness. A: Vomitophobia B: Cacophobia C: Tachophobia D: Dextrophobia 5. A tiltmaker makes.... A: canopies B: mud walls C: abstract paintings D: scaffoldings 6. Cul-de-sac. A: Blind alley B: Kidney C: Best performance D: Insect home 7. Box and cox. A: Twins B: Brothers C: Sharing same place at different times

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

D: Father and son 8. Audimeter measures. A: TV viewing B: Noise level C: Car’s efficiency D: Hall’s sitting capacity 9. Shotgun marriage. A: Live-in partnership B: Forced marriage C: Contract marriage D: No-dowry marriage 10. Agora. A: Monster B: Pretty woman C: Girls’ hostel D: Market place 11. A gay Lothario. A: Homosexual youth B: Womaniser C: Happy person D: Happy farmer 12. Rough diamond. A: Synthetic diamond B: Good but lacks manners C: Elderly person D: Rare stone 13. Emetic. A: Causes vomiting B: Causes pain C: No such word D: Electronic waste 14. To cool one’s heels. A: To go to bed

B: To relax C: To be kept waiting D: To swim 15. The last round-up. A: Death B: Old age C: Climax D: Finale 16. Dogs-canine, catsfeline, but cattle-.... A: vulpine B: caprine C: bovine D: asinine 17. The SMS read: G2H. A: Go To Hell B: Guy Too Hot C: Girl Too Hot D: Gift To Her 18. Cack-handed. A. Weak B. Powerful C. Clumsy D. Right-handed 19. The witching hour. A: Midnight B: Wee hours C: After office hours D: Time before death 20. Strictly for the birds. A: For married couples B: Unimportant C: For children D: Sex education

ANSWERS 1. Fanciful conception 2. Caesarean 3. Octopuses 4. Cacophobia 5. Canopies 6. Blind alley 7. Sharing same place at different times 8. TV viewing 9. Forced marriage 10. Market place 11. Womaniser 12. Good but lacks manners 13. Causes vomiting 14. To be kept waiting 15. Death 16. Bovine 17. Go To Hell 18. Clumsy 19. Midnight 20. Unimportant

All about forensic DNA

Y L D R O W 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 September 30, 2015

PEOPLE / Art Goes Kitsch

BRUSH WITH REALITY Artists apply paint on a model, making him blend with the background wall of an ancient building in Shanghai. FACT AND FICTION Tourists play in front of a 3D painting on the wall of a house in Luoyuan village, Zhejiang.

LET’S FACE IT An artist draws a sketch before spray-painting a wall, for the “We Are In The Streets” festival in Lima.

EYE OF THE TIGER A dancer gets his body painted like a tiger before a performance in Trichur.

GOD IS IN THE DETAILS Painters restoring a gold foil on the thousand-hands’ Bodhisattva in Chongqing.

— Compiled by Kh Manglembi Devi Photos: UNI

September 30, 2015

RNI No. UPENG/2007/25763

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COMING SOON ON TATA SKY