India legal 31 october 2015 by India Legal

RAMESH MENON:

CORRUPTION BEHIND THE BARS

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October 31, 2015

STORIES THAT COUNT

MEAT POLITICS

RAISING THE STAKES INDERJIT BADHWAR, AJITH PILLAI, KALYANI SHANKAR, RAKESH BHATNAGAR:

In-depth analysis of the legal, political, ethical, religious dimensions of beef ban 22

VIPIN PUBBY Defamation turbulence

TAHIR MAHMOD Is Muslim personal law still valid?

MEENA MENON Haji Ali Dispute 50

PLUS: z Scrap

3-year law degrees? 46

z Gurmeet

Ram Rahim Singh Insan: Religion or politics? 54

z Italian

war 66

Marines: Jurisdiction

LEAD/ LETTER FROM THE EDITOR

INDERJIT BADHWAR

THE COW CRISIS HE more we read about the politics of beef and meat, the more confused we get. The greater the confusion, the greater the mutual religious and communal suspicion and hatred, the greater the violence, the greater the polarization and the greater the benefit to the politician. Keeping the communal cauldron bubbling over meat politics rather than looking for actual solutions and trying to clear the cobwebs of disinformation translates into votes through divide-and-rule politics. That, unfortunately, is what is happening in India at the moment and I believe it is the duty of journalists—as we have tried to do in our cover story package written by Ajith Pillai, Kalyani Shankar and Rakesh Bhatnagar—to dig deeper than ever before to unearth facts and present them to the clear light of analysis and reasoned debate. But journalists, I am ashamed to admit, have by and large, themselves become rabble-rousers in this controversy, adding further fuel to the fires of obscurantism and unreason spreading across the land. The first thing we should abjure is the use of scriptures and religion and saintly commentaries to justify our positions and prejudices. We have modern minds, thank the lord, and we don’t need to throw the Vedas or the revered Bhagwad Gita or Quran or Bible at each other to argue for or against orderly, civilized, humane conduct governed by constitu-

tional norms and the rule of law in our everyday lives. Alas, not having read Sanskrit or Pali, I am in no position to comment on who is wrong or who is right regarding proscriptions against or sanctions for beef eating in the Vedas or the Sutras or the Shastras. In any case, many thousands of years later, the veracity of any of these positions is no excuse for the cursed lynching to death of a member of a minority religion for storing meat. Nor is this an argument for or against vegetarianism. That’s a personal preference. I respect freedom of choice. This is, however, a simple exposition of historical, constitutional, legal, and economic reality as it has unfolded in the present, along with the wisdom of thinkers who are sound of mind and spirit. I may not be able to quote the Atharva Veda or Guru Vashista on this subject but I can certainly dig up the writings of Gandhiji and jurists and people of judicial eminence who have thought deeply on this subject. Agitations over cow slaughter and the sensitivity of India’s rulers to this issue date back hundreds of years. I started my own career as a cub reporter for The Indian Express in 1966 and covered the VHP-Hindu MahasabhaRSS-Jana Sangh agitation led by a Shankaracharya. They wanted a constitutional amendment to ban cow slaughter throughout the country. The movement turned violent INDIA LEGAL October 31, 2015

LEAD/ LETTER FROM THE EDITOR

“…We really do not stop to think what true religion is and merely go about shouting that cowslaughter should be banned by law. In villages Hindus make bullocks carry huge burdens which almost crush the animals. Is it not cow-slaughter, albeit slowly carried out?” —Mahatma Gandhi

as thousands of trisul-wielding sadhus broke into the parliamentary compound and set fires to adjoining properties. They also tried to ransack Congress President Kamraj’s house. Eight people, including a policeman were killed after the police opened fire. In April 1979, the 82-year-old Vinoba Bhave proceeded with a fast-unto-death seeking a national ban on cow slaughter but called it off after being assured that the government would take steps to resolve the matter.

as the matter been resolved? What does the law say about the matter? What does the constitution say? Why is Congress leader Digvijaya Singh daring the ruling BJP to bring a national law on this subject and then offering Congress support to it? Haven’t states already banned the sale, export or consumption of beef? Many of these issues have been addressed in the stories that follow. Others I will try and address—along with commentaries from thinkers—in the ensuing paragraphs. First, what does the constitution say? (The question of banning cow slaughter was debated in the Constituent Assembly and a consensus emerged that there should be no national statute banning the consumption of beef. The goal was instead included in the non-binding

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Directive Principles of State Policy. No paraphrasing or interpretation here, simply the language): “The Preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice” is Entry 15 of the State List of the Seventh Schedule of the constitution, meaning that state legislatures have exclusive powers to legislate the prevention of slaughter and preservation of cattle. Some states allow the slaughter of cattle with restrictions like a “fitfor-slaughter” certificate, which may be issued depending on factors like age and gender of cattle, continued economic viability, etc. Others completely ban cattle slaughter, while there is no restriction in a few states. Prohibition of cow slaughter is a Directive Principles of State Policy contained in Article 48 of the constitution. It reads: “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.”

hat did the father of the nation, Gandhiji, who is used by both sides for their arguments, actually say during his prayer meeting (July 25, 1947, Collected Works Vol. 88) when the Constituent Assembly was under way in response to thousands of letters from Hindus on this subject? He said: “I have another telegram which says that a friend has started a fast for this cause. In India no law can be made to ban cow-slaughter. I do not doubt that Hindus are forbidden the slaughter of cows. I have been long pledged to serve the cow but how can my religion also be the religion of the rest of the Indians? It will mean coercion against those Indians who are not Hindus. “We have been shouting from the housetops that there will be no coercion in the matter of religion. We have been reciting verses from the Koran at the prayer. But if anyone were to force me to recite these verses I would not like it. How can I force anyone not to slaughter cows unless he is himself so disposed? It is not as if there were only Hindus in the Indian Union. There are Muslims, Parsis, Christians and other religious groups here.

“The assumption of the Hindus that India now has become the land of the Hindus is erroneous. India belongs to all who live here. If we stop cow slaughter by law here and the very reverse happens in Pakistan, what will be the result? Supposing they say Hindus would not be allowed to visit temples because it was against Shariat to worship idols? I see God even in a stone but how do I harm others by this belief? If therefore I am stopped from visiting temples I would still visit them. I shall therefore suggest that these telegrams and letters should cease. It is not proper to waste money on them. “…We really do not stop to think what true religion is and merely go about shouting that cow-slaughter should be banned by law. In villages Hindus make bullocks carry huge burdens which almost crush the animals. Is it not cow-slaughter, albeit slowly carried out? I shall therefore suggest that the matter should not be pressed in the Constituent Assembly.” And what do the courts say? There are two major Supreme Court decisions, 47 years

apart, on this subject that give different rulings. The Hindu has quoted them at length. The first (1958) was delivered by a five-judge bench which held that “there is no getting away from the fact that beef or buffalo meat is an item of food for a large section of the people in India”. The apex court found that cattle, except cows of all ages and calves of both cows and buffaloes, not capable of milch or draught, can be slaughtered. The court classified such cattle as “useless”. In fact, the apex court found that keeping “useless cattle” alive would be a “wasteful drain” on the nation’s cattle feed.

TO EACH HIS OWN (Above) Individual followers of various faiths must decide their priorities regarding cow protection

hief Justice Das termed beef as the common man’s diet. “The comparatively low prices of beef and buffalo flesh, which are nearly half that of mutton or goats’ flesh, is the main reason for their demand,” the Bench held. “Poorer people, therefore, who can hardly afford fruit or milk or ghee, are likely to suffer from malnutrition if they are deprived of even one slice of beef or buffalo flesh which may sometimes be within their reach,” the INDIA LEGAL October 31, 2015

LEAD/ LETTER FROM THE EDITOR

Anil Shakya

In the reign of Nawab Wajid Ali Shah of Avadh, Hindus and Muslims showed tremendous restraint when Holi and Moharram fell on the same day. apex court held in 1958. This stand was reversed in 2005 when the Supreme Court under Justice Lahoti upheld Gujarat’s total ban on cattle slaughter, regardless of whether the bovine is useless or useful. The Hindu reported: “Chief Justice of India (retired) R.C. Lahoti, heading a seven-judge Bench wrote the majority opinion for the court. The Bench pooh-poohed the reasoning that beef was the poor man’s protein-rich diet. “Beef contributes only 1.3 per cent of the total meat consumption pattern of the Indian society,” the court held. Acknowledging the Gujarat government’s version comparing the dung of a cow to a “Kohinoor diamond”, the Supreme Court disagreed with its 1958 verdict that useless cattle can be slaughtered. “This is the land of Mahatma Gandhi, Vinobha, F, Buddha, Nanak and others. It will be an act of reprehensible

October 31, 2015

ingratitude to condemn cattle in old age as useless and send them to a slaughterhouse. We have to remember... The weak and meek need more protection and compassion,” the apex court observed.

n 2008, an extremely important judgment that bridges what appears to be a seeming gap between these two points of view was delivered (Hinsa Virodhak Sangh vs Mirzapur Moti Kuresh Jamat & Ors on 14 March, 2008) by a bench of Justices HK Sema and Markandey Katju. Like in a recent case in Maharashtra, the petitioners were Muslim meat traders who challenged Ahmedabad’s closing down of butcher shops for a brief period in which the Jain community observes its festival, Paryushan. In a nutshell, the court opined that had the closures been ordered for a longer period of time, it would have amounted to a constitutional violation of the Muslim butchers’ right to practice their livelihood, but for the sake of diversity and tolerance and respect for all sentiments, a short period of the ban could be condoned. But of great significance is Judge Katju’s stellar observations on the nature of the Indian

Anil Shakya

state and the supreme duty of all Indians to uphold its diversity. He enunciates, through historical examples and principles of natural law, the primacy of avoiding playing the communal or religious card through intolerance and reaping political benefit from the politics of meat. I will quote him at length because his observations ring truer than ever before: It must be remembered that India is a multicultural pluralistic society with tremendous diversity. There are a large number of religions, castes, languages, ethnic groups, cultures, etc, in our country. Somebody is tall, somebody is short, somebody is fair, somebody is brown, somebody is dark in complexion, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc. We may compare our country with China which is larger in population and size than India. China has 1.3 billion people while our population is 1.1 billion. Also, China has more than twice our land area. However, there is broad homogeneity in China. All Chinese have Mongoloid features; they have a common written script (Mandarin Chinese) and 96% of them belong to one ethnic group called the Han Chinese. On the other hand, India as stated above, has

tremendous diversity and this is due to large scale migrations and invasion into India over thousands of years. People migrate from uncomfortable areas to comfortable areas. Before the coming of modern industry there were agricultural societies and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why would anybody living in India migrate to Afghanistan which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence, almost all migrations and invasions came from outside into India (except in recent times when some people have gone to other countries for job opportunities). Most of the migrations/ invasions came from the North-West, and to a much lesser extent from the North-East of India. Thus, people kept pouring into India, and it is for this reason that there is so much diversity in India. As the great Urdu poet Firaq Gorakhpuri wrote: In the land of Hind, the Caravans of the peoples of the world kept coming in and India kept getting formed. Since India is a country of great diversity, INDIA LEGAL October 31, 2015

LEAD/ LETTER FROM THE EDITOR

Template for peace Extracts from Justice Markandey Katju’s 2008 judgment

“These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has ‘hurt the sentiments’ of their community.” “Emperor Akbar himself abstained from eating meat on Fridays and Sundays and on some other days, as has been mentioned in the Ain-I-Akbari by Abul Fazl. It was because of the wise policy of toleration of the Great Emperor Akbar that the Mughal empire lasted for so long, and hence the same wise policy of toleration alone can keep our country together despite so much diversity.” “…the traders in meat of Ahmedabad will not suffer much merely because their business has been closed down for 9 days in a year.” 8

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it is absolutely essential if we wish to keep our country united to have tolerance and respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country. Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country. The architect of modern India was the great Mughal Emperor Akbar who gave equal respect to people of all communities and appointed them to the highest offices on their merits irrespective of their religion, caste, etc. The Emperor Akbar held discussions with scholars of all religions and gave respect not only to Muslim scholars, but also to Hindus, Christians, Parsis, Sikhs, etc. Those who came to his court were given respect and the Emperor heard their views, sometimes alone, and sometimes in the Ibadatkhana (Hall of Worship), where people of all religions assembled and discussed their views in a tolerant spirit. The Emperor declared his policy of Suleh-e-Kul, which means universal tolerance of all religions and communities. He abolished Jeziya in 1564 and the pilgrim tax in 1563 on Hindus and permitted his Hindu wife to continue to practise her own religion even after their marriage. This is evident from the Jodha Bai Palace in Fatehpur Sikri which is built on Hindu architectural pattern. In 1578, the Parsi theologian Dastur Mahyarji Rana was invited to the Emperor’s court and he had detailed discussions with Emperor Akbar and acquainted him about the Parsi religion. Similarly, the Jesuit Priests Father Antonio Monserrate, Father Rodolfo Acquaviva and Father Francisco Enriques etc. also came to the Emperor’s court.... The Emperor also became acquainted with Sikhism and came into contact with Guru Amar Das and Guru Ram Das (see The Mughal Empire by R.C. Majumdar). Thus, as stated in the Cambridge History of India (Vol.IV — The Mughal Period) Emperor Akbar conceived the idea of becoming the father of all his subjects, rather than the leader of only the Muslims, and he was far ahead of his times. As

mentioned by Pt. Jawahar Lal Nehru in The Discovery of India Akbar’s success is astonishing, for he created a sense of oneness among the diverse elements of India. The Emperor invited and received a Jain delegation consisting of Hiravijaya Suri, Bhanuchandra Upadhyaya and Vijayasena Suri. Jainism, with its doctrine of non-violence, made a profound impression on him and influenced his personal life. He curtailed his food and drink and ultimately abstained from flesh diet altogether for several months in the year. He renounced hunting which was his favourite pastime, restricted the practice of fishing and released prisoners and caged birds. Slaughter of animals was prohibited on certain days and ultimately in 1587 for about half the days in the year. Akbar’s contact with Jains began as early as 1568, when Padma Sunder who belonged to the Nagpuri Tapagaccha was honoured by him. As mentioned in Dr. Ishwari Prasad’s The Mughal Empire, the Jains had a great influence on the Emperor.... Having heard of the virtues and learning of Hir Vijaya Suri in 1582 the Emperor sent an invitation to him through the Mughal Viceroy at Ahmedabad. He accepted it in the interests of his religion. He was offered money by the Viceroy to defray the expenses of the journey but he refused. The delegation consisting of Hir Vijaya Suri, Bhanu Chandra Upadhyaya and Vijaya Sen Suri started on their journey and walked on foot to Fatehpur Sikri and were received with great honour befitting imperial guests. Hir Vijaya Suri had discussion with Abul Fazl. He propounded the doctrine of Karma and an impersonal God. When he was introduced to the Emperor he defended true religion and told him that the foundation of faith should be daya (compassion) and that God is one though he is differently named by different faiths. The Emperor received instruction in Dharma from Suri who explained the Jain doctrines to him.... The Emperor was persuaded to forbid the slaughter of animals for six months in Gujarat and to abolish the confiscation of the property of deceased persons, the Sujija Tax (Jeziya) and a Sulka (possibly a tax on pilgrims) and to free caged birds and prisoners. He stayed for four years at Akbar’s court and left for Gujarat in 1586. He imparted a knowl-

In April 1979, Vinoba Bhave proceeded with a fast-unto-death seeking a national ban on cow slaughter but called it off after being assured that the government would resolve the matter. edge of Jainism to Akbar and obtained various concessions to his religion. The Emperor is said to have taken a vow to refrain from hunting and expressed a desire to leave off meateating for ever as it had become repulsive.... The killing of animals was forbidden for certain days. If the Emperor Akbar could forbid meat eating for six months in a year in Gujarat, is it unreasonable to abstain from meat for nine days in a year in Ahmedabad today? Emperor Akbar was a propagator of Suleh-i-Kul (universal toleration) at a time when Europeans were indulging in religious massacres e.g. the St. Bartholomew Day massacre in 1572 of Protestants, (called Huguenots) in France by the Catholics, the burning at the stake of Protestants by Queen Mary of England, the massacre by the Duke of Alva of millions of people for their resistance to Rome and the burning at the stake of Jews during the Spanish Inquisition. We may also mention the subsequent massacre of the Catholics in Ireland by Cromwell, and the mutual massacre of Catholics and Protestants in Germany INDIA LEGAL October 31, 2015

LEAD/ LETTER FROM THE EDITOR

Why is Congress leader Digvijaya Singh daring the ruling BJP to bring a national law on this subject and then offering Congress support to it? during the thirty year war from 1618 to 1648 in which the population of Germany was reduced from 18 million to 12 million. Thus, Emperor Akbar was far ahead of even the Europeans of his times. Emperor Akbar himself abstained from eating meat on Fridays and Sundays and on some other days, as has been mentioned in the AinI-Akbari by Abul Fazl. It was because of the wise policy of toleration of the Great Emperor Akbar that the Mughal empire lasted for so long, and hence the same wise policy of toleration alone can keep our country together despite so much diversity. We may give another historical illustration of tolerance in our country. In the reign of Nawab Wajid Ali Shah of Avadh, in a certain year Holi and Muharrum coincidentally fell on the same day. Holi is a festival of joy, whereas Muharrum is an occasion for mourning. The Hindus of Lucknow decided that they would not celebrate Holi that year out of respect for the sentiments for their Muslim brethren. On that day, the Nawab joined the Muharrum procession and after burial of the Tazia at Karbala he enquired why Holi is not being celebrated. He was told that it was not being celebrated because the Hindus out of respect for the sentiments of their Muslim brethren had decided not to play Holi that year because it was a day

October 31, 2015

of mourning for the Muslims. On hearing this, Nawab Wajid Ali Shah declared that since Hindus have respected the sentiments of their Muslim brothers, it is also the duty of the Muslims to respect the sentiments of their Hindu brethren. Hence, he announced that Holi would be celebrated the same day and he himself was the first who started playing Holi on that day and thereafter everyone in Lucknow, including the Muslims, played Holi, although it was Muharrum day also. It is this kind of sentiment of tolerance which alone can keep our country united. We are making these comments because what we are noticing now-a-days is a growing tendency of intolerance in our country. Article 1(1) of the Constitution states: India i.e Bharat is a Union of States. It may be mentioned that during the Constituent Assembly debates some members of the Constituent Assembly were of the view that India should be described as a Federation. However, instead of the word “Federation” the word “Union” was deliberately selected by the Drafting Committee of the Constituent Assembly to indicate two things, viz., (a) that the Indian Union is not the result of an agreement by the States, and (b) that the component States have no freedom to secede from it. Moving the Draft Constitution for the consideration of the Constituent Assembly on November 4, 1948, Dr. Ambedkar, Chairman of the Drafting Committee explained the significance of the use of the expression “Union” instead of the expression “Federation”: ”It is true that South Africa which is a unitary State is described as a Union. But Canada which is a Federation is also called a Union. Thus the description of India as a Union, though its constitution is federal, does no violence to usage. But what is important is that the use of the word “Union” is deliberate. I do not know why the word “Union” was used in the Canadian Constitution. But I can tell you why the Drafting Committee has used it. The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is inde-

structible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute.... Thus India is not an association or confederation of States, it is a Union of States and there is only one nationality that is Indian. Hence every Indian has a right to go anywhere in India, to settle anywhere, and work and do business of his choice in any part of India, peacefully. These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has “ hurt the sentiments” of their community. These are dangerous tendencies and must be curbed with an iron hand. We are one nation and must respect each other and should have tolerance. As the great Tamil Poet Subramaniya Bharati wrote: Muppadhu kodi mugamudayal Enil maipuram ondrudayal Ival Seppumozhi padhinetudayal Enil Sindhanai ondrudayal, which means, “This is Bharatmaata has thirty crores of faces! But her body is one. She speaks eighteen languages! But her thought is one.” In the present case we have seen that for a long period slaughter houses have been closed in Gujarat for a few days out of respect for the sentiments of the Jain community, which has a sizable population in Gujarat and Rajasthan. We see nothing unreasonable in this restriction. As already stated above, it is a short restriction for a few days and surely the non-vegetarians can remain vegetarian for this short period. Also, the traders in meat of Ahmedabad will not suffer much merely because their business has been closed down for 9 days in a year. There is no prohibition to their business for the remaining 356 days in a year. In a multi cultural country like ours with such diversity, one should not be over sensitive and over touchy about a short restriction when it is being done

“The comparatively low prices of beef and buffalo flesh, which are nearly half that of mutton or goats’ flesh, is the main reason for their demand.” —The 1958 judgment of Supreme Court

“It will be an act of reprehensible ingratitude to condemn cattle in old age as useless and send them to a slaughter house. We have to remember... The weak and meek need more protection and compassion.” —The 2005 judgment of Supreme Court out of respect for the sentiments of a particular section of society. It has been stated above that the great Emperor Akbar himself used to remain a vegetarian for a few days every week out of respect for the vegetarian section of the Indian society and out of respect for his Hindu wife. We too should have similar respect for the sentiments for others, even if they are a minority sect.

aving listened to Judge Katju’s wisdom, suppose we should go ahead, as some are suggesting and make a constitutional law to prohibit the sale of beef everywhere, have we given any heed to the logistical and economic consequences? These are not intended to deny proponents of a national beef ban their right to propose it but to point out what all this would entail. Executive Editor, Ajith Pillai, in his detailed analysis in this issue, brings out the problems involved in maintaining economically unproductive cattle. As he says, it would require a welfare plan at the national level which would entail thousands of crores of seed money and regular financial inputs year after year. Is any government prepared to bear such colossal costs brushing aside other priorities that are crying out for attention? These are questions which need to be addressed instead of talking in the air about gau raksha.

editor@indialegalonline.com INDIA LEGAL October 31, 2015

OCTOBER 31, 2015

VOLUME. IX

ISSUE. 04

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

LEAD

Till the Holy Cows Come Home

There is much ado about meat. The reasons are political, religious and commercial. While INDERJIT BADHWAR examines the constitutional debates on the issue, AJITH PILLAI assesses a uniform law on bovine slaughter. KALYANI SHANKAR questions the politics behind the ban, and RAKESH BHATNAGAR says vague laws contribute to the confusion

CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari Vice-President (Ad-Sales) Vivek Mittal-09810265619 For advertising & subscription queries editor@indialegalonline.com

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October 31, 2015

SPECIAL REPORT

Mayhem RAMESH MENON takes a close look at the condition of Indian jails that are virtual hell holes of corruption, drug dealing, gang wars and sexual predators COLUMN

Editor’s Travails As the resident editor of a major daily, VIPIN PUBBY has had his share of defamation suits. He writes a personal account of the time and energy wasted over frivolous suits to muzzle the press LEGAL EYE

“Abolish three-year law degrees” Justice N Kirubakaran of the Madras High Court roots for five-year law courses and scrapping of the three-year courses. VENKATASUBRAMANIAN reports

36 42 46

HEALTH

Breakthrough in MS

Students of IIT Madras have developed an algorithm that can help detect multiple sclerosis, writes MURALI KRISHNAN SOCIETY CONTROVERSY

Shrine of Discontent

The decision to bar the entry of women into the mazaar of Haji Ali Dargah in Mumbai has reached the Bombay High Court. MEENA MENON reports it is now left to the judiciary to resolve the issue

Religion or Politics?

The great, great granddaughter of Wajid Ali Shah, the last Nawab of Awadh, is all set to bring the family cuisine to the world. Does this lawyer and chef have a case up her sleeve? SUJIT BHAR examines

VIPIN PUBBY probes the sudden pardon granted by the Sikh clergy to Dera Sacha Sauda head Gurmeet Ram Rahim Singh

PROBE INTERVIEW

Muslim Personal Law Issue

Legacy Of The Nawabs

All Charged Up

Latest raids of undercover steroid labs suggest that the market for steroids goes way beyond the world of elite athletes, writes DAVID EPSTEIN of ProPublica

“AAI can mobilize funds to set up airports”

RAMESH MENON talks to RK Srivastava, chairman, Airports Authority of India, about the challenges he faces DIPLOMACY

Indo-Italian Imbroglio

The killing of two Kerala fishermen off the Indian coast by Italian marines has become an international issue. PAPIA SAMAJDAR reports

REGULARS

Prof Tahir Mahmod, former member of the Law Commission of India, talks to SABIHA FARHAT on the controversial subject Edit................................................................................3 Ringside......................................................................14 Quote-Unquote...........................................................15 Supreme Court............................................................16 National Briefs.............................................................19 Courts......................................................................... 20 International Briefs.......................................................45 Is That Legal................................................................53 Figure It Out.................................................................61 Campus Update..........................................................75 Worldly Wise...........................................................81 People......................................................................... 82 Cover Design: ANTHONY LAWRENCE

INDIA LEGAL October 31, 2015

Aruna

VERDICT I believe in the equality of man; and I believe that religious duties consist in doing justice, loving mercy, and endeavoring to make our fellow-creatures happy. Thomas Paine

October 31, 2015

QUOTE-UNQUOTE

“My grandson wears a mask. He looks like a ninja. When I asked him why was he wearing a mask, he said it was due to pollution.” —Chief Justice of India HL Dattu, during a hearing on pollution in Delhi in the Supreme Court

“When a poor man says ‘here take my privacy, please give me money’, Your Lordships are saying ‘don’t take the money, please retain your privacy’.” —Senior advocate KK Venugopal, in support of citizens willing to voluntarily enrol for Aadhaar, in the Supreme Court

“I feel somewhat dissatisfied with the local people. I, too, am part of contemporary Manipuri society, so why should they isolate me; celebrate me and sing my glories but behave like I have passed away?” —Irom Sharmila, on fast since last 14 years against AFSPA, in DNA

“As BJP workers, we need to maintain restraint and have no right to derail the PM’s agenda of good governance and development.... Even the slightest action from our end which can lead to some other perception should be avoided.” —BJP national secretary Siddharth Nath Singh, urging party members to restrain themselves from communalizing the Dadri lynching

“A person like Owaisi was allowed to come here from Hyderabad. Is the Samajwadi Party government colluding with him? Is it not the weakness of the government? This is UP, we know how to send him packing.”

“If we collectively chicken out of this, we’ll all turn into chickens and we’ll all be fried, grilled, toasted and roasted.” —IMF Chief Christine Lagarde, on the consequences of failure to act on global warming, at the annual IMF meeting in Lima, Peru

“We are on the brink of a tyranny of uniformity and parochialism... Being in a minority is almost a crime.” —Writer Ashok Vajpayee, explaining the reason for returning his Sahitya Akademi Award

—BJP MLA Sangeet Som, on AIMIM leader Asaduddin Owaisi’s visit to Dadri village, in The Wire

INDIA LEGAL October 31, 2015

SUPREME COURT

AG can take private cases he apex court ruled that Attorney General (AG) Mukul Rohatgi was well within his right to fight as a lawyer for any private party unless there was a conflict of interest. It struck down a PIL that claimed that Article 76, related to the appointment and powers of the attorney general, didn’t permit the AG to represent private cases in court. The PIL, filed by a Kerala-based NGO, Centre for Consumer Education, wanted the court to prevent Rohatgi from fighting such

cases against the government. It claimed that as AG, Rohatgi was duty-bound to defend the government in all legal matters and fighting private matters was a clear case of conflict of interest. Even the request in the PIL to refer the issue to a constitution bench was turned down by the apex court. Objections had been raised after Rohatgi fought a case in July for private bar owners in Kerala, challenging the Kerala government’s liquor policy.

No ruling on Srinivasan he Supreme Court refused to be dragged into the fight between former BCCI president N Srinivasan and the Board of Cricket Control in India (BCCI) over the conflict of interest issue. The BCCI had moved the apex court pleading that Srinivasan could not attend board meetings as he still had commercial interests as a cricket administrator. Srinivasan’s

counsel refuted the allegation and insisted that the matter could be solved amicably. The court observed that it was up to BCCI to resolve the impasse and asked the board to stick to its stand if it felt so and observed that Srinivasan could challenge it legally. The court made it clear that it would not hear any plea on the developments in BCCI.

Fate of Aadhaar on hold he center’s move to get the apex court’s approval for making Aadhaar cards mandatory for all social welfare schemes received a setback as the court did not change its August 11 interim verdict. The court had ordered the government to restrict the use of Aadhaar card only for offering subsidies on LPG cylinders, kerosene and benefits from the PDS. It referred the matter to a

October 31, 2015

constitution bench, which was yet to be constituted. The court clarified that it was now up to the five-judge constitution bench to adjudicate on all legal issues related to Aadhaar. A clutch of petitions had pleaded that collection of data and other personal details of a person for Aadhaar cards violated the right to privacy, a fundamental right and could be misused by the government.

Access given to ex-CBI chief’s diary ormer CBI special director ML Sharma-led panel was allowed access to the original visitors’ diary kept at the residence of erstwhile CBI chief Ranjit Sinha by the apex court bench monitoring the coal scam. The diary was in the possession of the apex court. The panel appointed by the Supreme Court is ascertaining whether people accused in the 2G and coal scams did meet the former

Stay on beef ban ffering relief to the Jammu and Kashmir government, the apex court put on hold for two months the order of the state high court banning cow slaughter and beef sale in the state. The state government had sought the apex court’s intervention on the two recent verdicts of the high court. While the Jammu bench had ruled that the ban on the sale of beef be enforced, the Srinagar bench took cognizance of a petition against the ban law and sought an opinion from the state government on its validity. The ambiguity had forced the state government to rush to the apex court. It pleaded that the two orders contradicting each

other was impacting the law and order situation in the state as these could be misused and misinterpreted. The apex court asked the chief justice of the Jammu and Kashmir High Court to form a three-judge bench to look into the legalities involved and examine other aspects of the issue.

CBI director at his residence. It was alleged that Sinha favored such people during CBI investigation into the scams. The panel wanted the diary in order to proceed with the inquiry and had requested the court for it. The coal scam bench decided to forward the panel’s request to the bench headed by the chief justice of India monitoring the probe into 2G scam.

Be careful granting bail T

he apex court held that courts should be careful in granting bail to people who have been repeatedly convicted. Veering away from its probail stand, the highest court observed that history sheeters needed to be judged at a different level before accepting their bail plea. They can’t be compared to first-time offenders. There is a need to take the past record into account before granting bail, it observed. While striking down a bail order of the Allahabad High Court for a seasoned criminal in a murder case, the apex court observed that the judiciary should be alert while granting relief to such offenders who are a threat to the society.

INDIA LEGAL October 31, 2015

SUPREME COURT

Delhi to have environment tax aking note of Delhi’s air pollution levels posing serious health concerns, the Supreme Court gave an in-principle approval to impose an environmental levy on all commercial vehicles entering the national capital. The court ruled that `1,300 on heavy trucks and `700 on light commercial vehicles would be levied. However, the court was yet to deliver a detailed order on the mat-

ter. It wanted to take into consideration the decisions of the National Green Tribunal (NGT), which had passed a similar order earlier. Senior counsel Harish Salve, appointed by the court to assist in environment matters, had suggested the levy. The court said it would pass an order that would supersede the one by the NGT and the order will be implemented on an experimental basis for four months.

CBI gets credit for Vyapam auding the ongoing investigation by the CBI into the Vyapam scam, the Supreme Court observed that there were no deaths of persons linked to the scam after the nodal agency took over. In July, petitions were filed after more than 30 people had allegedly died in connection with the scam, after which the Supreme Court had ordered the CBI to take over.

No death A sentence in Katara case

Appearing for the Madhya Pradesh government, Attorney Mukul Rohatgi, however, argued that the deaths were not related to the scam. The bench then asked him whether he could affirmatively say that all deaths were not related to the scam. The bench added that it would continue monitoring the matter till it was satisfied that all its orders had been complied with.

plea by Neelam Katara, mother of the slain Nitish Katara, seeking death sentence for Vikas and Vishal Yadav who were convicted for murdering her son in 2002 was rejected by the Supreme Court. The court ruled that while it was a murder and could even be pre-meditated, it certainly was not an “honor killing” nor heinous enough to be considered as the

“rarest of rare” cases, thus warranting a death penalty. Neelam Katara had moved the apex court against the Delhi High Court order sentencing both Vikas and Vishal Yadav to a total of 30 years of jail term. She had sought enhancement of the sentence to death or alternatively imprisonment for whole life. The apex court is yet to decide on the quantum of sentence. Illustrations: UdayShankar

October 31, 2015

NATIONAL BRIEFS

Indian woman sues Wipro

n Indian woman employee at the London office of IT giant Wipro has filed a £ 1 million compensation case against the firm, for sexual discrimination, unequal pay and unfair dismissal. She alleged that she was subjected to a “deeply predatory, misogynistic culture” and

forced into an affair with a married boss of the Bangalore headquartered firm, Business Standard reports. In a petition filed in the Central London Employment Tribunal, the woman claimed that she was manipulated into an affair with a married senior vice-president. She added that she was paid far less than the male staff, earning only £75,000 per annum rather than the expected £150,000.

ISRO’s arm Antrix fined

Radhe Maa gets relief

n international arbitration court has directed Antrix, the commercial arm of Indian Space Research Organisation (ISRO), to pay $672 million (` 4,435.20 crore) in damages to Devas Multimedia for “unlawfully” cancelling a contract four years ago. In a statement, Bengaluru-based Devas Multimedia said the International Court of Arbitration (ICA) ruled in its favor and “found Antrix is liable for unlawfully terminating the Devas-Antrix agreement in February 2011”, The Financial Express reported.

Vodafone spared liability

here was relief for self-styled god woman Radhe Maa as the Bombay High Court granted her anticipatory bail in a dowry harassment case. Justice Revati Mohite Dere granted her application for anticipatory bail on a personal bond of `25,000 on the condition that she should not contact the complainant, Nikki Gupta, who accused her of conniving with her in-laws in harassing her and her family with demands for dowry, according to a report in The Hindu. Radhe Maa had moved the High Court after a sessions court rejected her anticipatory bail petition on August 13. In her petition, Radhe Maa denied the allegations, saying she had never instigated the family and that she was being dragged into the case because the complainant’s in-laws were her devotees.

n a major relief for Vodafone India, the Bombay High Court quashed an order of the Income Tax Appellate Tribunal, which ruled that the IT department had the powers to raise tax demand on the company, in a ` 8,500 crore transfer pricing case. The division bench of Justices SC Dharmadhikari and AK Menon passed the order on a petition filed by the company challenging the IT tribunal order of 2012, reported The Economic Times. Transfer price is the amount used in accounting for transfer of goods or services from one place to another or from one company to another, which belongs to the same parent company. The transfer pricing case, dating to 2008, pertains to the sale of one of its call centres in Ahmedabad. Vodafone pleaded in the High Court that the IT department had no jurisdiction in the transfer pricing case because the said transaction was not international and did not attract any tax.

“Cannot sell diabetes drug”

he Delhi High Court this week restrained Glenmark pharmaceuticals from making or selling its generic anti-diabetes drugs Zita and Zita Met, giving relief to US drug maker Merck Sharp and Dohme Corporation. According to Merck, sitagliptin phosphate monohydrate, the main component of Glenmark’s drug, could not be made without manufacturing the active molecule sitagliptin, “invented and patented” by the US drug maker, according to a report in Mint. In its order, the court said: “Defendant (Glenmark) is restrained by a decree of permanent injunction from making, using, selling, distributing, advertising, exporting, offering for sale or dealing in sitagliptin phosphate monohydrate infringing the suit patent of the plaintiffs (Merck).” The court said it cannot allow Glenmark to continue to manufacture and market its generic drugs just because it is selling the drugs at a lower price.

— Compiled by Vijay Patil INDIA LEGAL October 31, 2015

COURTS

Can’t arrest Himachal CM he CBI was debarred by the Himachal Pradesh High Court from arresting Chief Minister Virbhadra Singh and his wife in a disproportionate assets’ case. Singh, in a petition, had objected to the central agency lodging an FIR against him and raiding his residence in Shimla and other premises. Singh’s counsel alleged that there was a motive behind the CBI action and attributed it to vendetta politics. The court, in its interim order, however, permitted the CBI to carry on with its inquiry in the case. It also

asked the agency to keep the court posted before grilling the couple. It will hear the matter again on November 18. Singh’s petition had alleged that the CBI had exceeded its brief as the case was yet to be decided by the Delhi High Court while income tax authorities were looking into all relevant documents. It wanted the court to ask the CBI to stop all investigations and quash the FIR. It also claimed that permissions were not taken by the CBI before conducting the raid on the CM’s residence.

Upholding transgender’s rights he Delhi High court gave the go-ahead to Shivani Bhat, a transgender and a green card holder in the US, to go back and pursue undergraduate studies in California. Shivani, a teenager who lived with her parents in the US, claimed a male identity. She was brought back to India by her parents in June. Once here, they seized her passport, green card and other travel documents and got her admitted to a college in Agra so that she could be “reformed”. Shivani fled from Agra and, with the help of NGO activists, knocked at the door of the Delhi High Court, objecting to the action of

her parents. She pleaded for protection, and for help in getting back all her relevant documents so that she could return to the US. While taking serious note of the rights of the transgender, the court ruled that nobody would escort Shivani on her return journey, her passport and green card be returned to her and she would not be harassed after her return to the US. It asked her parents to buy a return ticket and took a firm undertaking from them that she would get monetary support for her education. The court also asked the Delhi Police to provide her protection till she left the country the country.

Pressing for prison reforms here is a need for new prisons in India to match the current prison-population ratio, observed the Bombay High Court while disapproving the condition of jails in Maharashtra. It also took note of the government’s nonchalance towards overcrowding in jails and the pathetic living condition of inmates. The court, in an initiative, launched a pilot project and ordered an inspection of the Yerawada Prison in Pune by a judicial

October 31, 2015

officer. It asked for a report on the living conditions of the inmates, the quality of food being provided and whether the inmates received adequate security. The court ruled that once that was done, it would examine the same aspects in other prisons of the state too. It also asked the state government to respond on the need for more “interview windows” (used by inmates to meet family members or lawyers) in jails.

Punishment for 7/11 convicts

special MCOCA court awarded death penalty to five convicts and life imprisonment to seven in the 7/11 Mumbai local train blasts case. Seven RDX bombs went off in the first class coaches of trains on July 11, 2006, that left more than 180 people dead and over 800 injured.

Kamal Ansari, Mohammad Faisal Ataur Rahman Shaikh, Ehtesham Qutu-buddin Siddiqui, Naveed Hussain Khan and Asif Khan were given death sentence by the special court for planting of the bombs. While deciding on the quantum of punishment, the court took into account offences committed by them, such as spreading terror, criminal conspiracy and murder. They were punished in accordance with Unlawful Activities Prevention Act (UAPA), MCOCA, IPC, Explosives Substances Act, 1908 and Railways Act, 1989. The court gave life terms to Tanveer Ahmed Mohammed Ibrahim Ansari, Mohammed Majid Mohammed Shafi, Shaikh Mohammed Ali Alam Shaikh, Mohammed Sajid Margub Ansari, Muzammil Ataur Rahman Shaikh, Suhail Mehmood Shaikh and Zameer Ahmed Latiur Rehman Shaikh. They were charged under UAPA, MCOCA and IPC.

Adultery rules you out for alimony

The husband got a divorce from the family court but was asked to shell out the alimony. He challenged the order on alimony in the high court.

married woman who has had willful sex with another man and even bore a child can’t be awarded a permanent alimony after divorce, ruled a Nagpur bench of the Bombay High Court. Citing it adultery, ruling her “impure”, and going by the Hindu Marriage Act, the court struck down the verdict of the family court which had directed the husband to pay her `1,500 monthly alimony, after granting divorce. The woman had left her husband after 22 years of marriage and stayed with another man. She also had a child with him.

Employ more police for Delhi he Delhi High Court did not buy the center’s plea that it was unable to employ additional 16,000 policemen to ensure safety in the capital due to lack of money. The court also didn’t entertain the argument put forward by the center that an austerity drive was in place as the government was beset with financial constraints. Holding that ensuring safety of the capital was paramount, the court asked the center to somehow manage funds to meet the expenditure of adding more policemen. The court also did not agree with the center’s claim that at present one policeman was attending to 241 people, saying the ratio was much higher.

Can’t evade a stand on rallies aking a serious note of the problems faced by the public during political rallies and meetings in Kolkata, the Calcutta High Court threatened to prohibit such rallies. It did not take kindly to political parties avoiding calls from the court to appear before it to respond to a PIL. It asked the state government to inform all political parties through releases in newspapers by November 19, asking them to be present in court on November 27. The court had, in response to a PIL against such rallies on weekdays, asked the petitioner Akshay Sarangi to ask all political parties or their representatives to be present in court on October 6. But no party turned up in court on that day.

— Compiled by Prabir Biswas Illustrations: UdayShankar INDIA LEGAL October 31, 2015

LEAD/ Meat and Beef Politics

Cww in the Communal Cauldron

MILCHING MILEAGE Cow protection has now become a major political plank

Rumors of beef consumption and cow slaughter are being used to polarize society. If any govt is serious about a total ban, will it invest in cow welfare and have a uniform law on bovine slaughter? By Ajith Pillai 22

October 31, 2015

oliticians will not publicly admit it. But in private they tell you that there are two curious aspects of the politics that is linked to the cow. One, that demanding a blanket ban on the slaughter and consumption of the species Bos taurus (which includes cows and bulls) is a shrewd card to play when a political party is in the opposition. But when in power, implementing any ban is not a very viable proposition. Secondly, any political and communal milking of the

UNI

issue is only possible when the legal position is not uniform and is suitably vague. NO UNIFORM LAW That’s how it is today. Take a look at the cow ban map of India and you will find parts of the country where there is no ban (Kerala, West Bengal, Mizoram, Arunachal Pradesh, Meghalaya, Nagaland, Tripura and Sikkim). In some states like Andhra Pradesh and Telangana, bulls can be slaughtered, provided fit-for-slaughter certificates are issued. In Tamil Nadu, slaughter and consumption of economically unviable animals is allowed. In Punjab, culling of animals is allowed for export. In Karnataka, possession of beef is not a crime and slaughter of older animals is permissible. In several states, including Delhi, the cow’s poorer cousin, buffalo (Bubalus bubalis) can be killed for its meat. In Uttar Pradesh, imported beef in sealed

containers can be served to foreigners and buffaloes can be slaughtered. There is no uniform law and several shades of grey. Added to this is the fact that buffalo meat is not banned and can easily and conveniently be mistaken for beef. We now know that only a forensic test can conclusively ascertain the origin of the animal from which any meat is obtained. The unfortunate killing of Mohammed Akhlaq and the mob attack on his family in Dadri, outside Delhi, for allegedly cooking beef at their home has taught us just that. The UP police sent the meat sample to a Mathura lab, where it was finally confirmed that it was mutton. While a blanket ban on slaughtering of bovine animals is what right-wing Hindutva groups have been demanding, there is reluctance to implement such a sweeping nationwide law. The reason cited is that 25

COSTLY TO KEEP (Above, L-R) Feeding cattle, especially those past their prime, is unviable

INDIA LEGAL October 31, 2015

LEAD/ Meat and Beef Politics

UNI

A cow is usually considered economically useful so long as it produces milk. Cattle owners prefer to get rid of animals once they have passed their milk yielding years. ONE FOR THE PHOTO OP (Above) BJP MP Hema Malini feeding a cow during the inauguration of a cow research facility in Mathura

October 31, 2015

percent of the population (as per the 2011 census) is SC/ST and they consume beef or buffalo meat as do the states in the Northeast, making such a ban impractical. But the unstated reason is that a ban— like the one in operation varying from state to state—makes cow protection a reason to target minority communities. Rumors of beef consumption and cattle slaughter can be used as a political tool without the state taking on the responsibility of tending to old and unproductive animals. Devdutt Pattanaik, who writes on Indian mythology, makes this telling observation in The Hindu where he analyzes why the present status quo vis-a-vis cow ban is most con-

venient to politicians: “It allows them (Hindutva groups) to terrorize and dominate Muslims and liberals. It gives them global attention and makes them the focus of a controversy-hungry media. It is this rather than cow protection that the go-rakshaks really seek.” Pattanaik also observes that the cow has become politicized to meet vested interests and that the consumption of beef in Vedic times is a well-recognized fact. COST OF UPKEEP According to the 2014 livestock census of the Ministry of Agriculture, there are 118 million milch animals in the country. A cow is usually considered economically useful so long as it produces milk. This varies from five to eight years, although dairy farmers say that after a few cycles of pregnancy, the output usually declines, rendering the animal a liability. What do they do with the animal? It is usually sent for slaughter for its meat and commercial exploitation of its hide, etc.

and infrastructure across the country for the welfare of cattle discarded by farmers. An official told India Legal: “The cost involved will be enormous. An entire workforce will have to be created and maintained to tend to the animals in retirement. It will be difficult to sustain such a program even though voluntary organizations may come forward to help. It will require consistent financial support and will necessitate an annual budgetary allocation. Where will this input come from?” But then, other questions will still remain. What happens to the bull which has a key role in the biological process that gives birth to a cow? Will it be left to slaughter? And what of the buffalo which also produces milk? And which agency will police cattle farms to ensure that all animals past their prime are sent off to welfare homes and not disposed off otherwise? Will there be a cow police created which will be tasked with this responsibility?

NOT TO BE COWED DOWN (Left) VHP activists protest against cow slaughter in Bangalore

ECONOMIC DIMENSION According to the official the only other viable alternative is through the setting up of

Otherwise, it has to be tended to for the rest of its life which could extend up to 15 years (internationally recognized lifespan) or more. Any recovery of cost for its upkeep from sale of its urine and dung would cover only a small fraction of the money involved, since even by the most conservative estimates, an ageing animal will require at least `30 a day for just basic feed. As things stand, cattle owners prefer to get rid of animals once they have passed their milk yielding years. In fact, even when a cow is not in lactation, it is let loose on the streets of cities to fend for itself. In Delhi, one can see such cattle feeding at refuse dumps and consuming whatever comes its way, including plastic bags and stale food. But should the state take responsibility of tending to cattle throughout its life when it would require a huge budgetary allocation? According to sources in the Ministry of Agriculture, seed amount of at least `10,000 crore would be required to set up gaushalas

UP animal husbandry minister Raj Kishor Singh told the state assembly in February that over 13,000 FIRs were filed in UP between 2012-2014 involving cases of illegal slaughtering.

INDIA LEGAL October 31, 2015

LEAD/ Meat and Beef Politics

Will a total ban on cattle slaughter impact the business and the thousands employed by the meat processing industry?

“India is a mature society. We need to rise above these kinds of incidents because they certainly don’t give a good name as far as the country is concerned. It is the responsibility of every Indian to stay clear of unfortunate instances like this.” —Arun Jaitley, at the Columbia University in New York

“Cow ban allows Hindutva groups to terrorize and dominate Muslims and liberals. It gives them global attention and makes them the focus of a controversy-hungry media. It is this rather than cow protection that the go-rakshaks really seek.” —Devdutt Pattanaik, writer of Indian mythology, in The Hindu

centers where animals, which have lived out their usefulness, can be put to sleep through administration of suitable medication. But this formula may not find favor with those who would want a natural death for the revered cow and not assisted killing. There is also another economic dimension. The meat export industry has been doing impressive business and earned over $5 billion in the last fiscal. It has grown by over 20 percent in recent years, making it a sunrise industry. Its primary export has been packaged beef dominated by buffalo meat.

October 31, 2015

WHEN HAZINESS PAYS Perhaps, finance minister Arun Jaitley may have had this in mind as well as the bad press over the Dadri lynching when he made a statement in New York at the Columbia University condemning the incident. He said: “India is a mature society. We need to rise above these kinds of incidents because they certainly don't give a good name as far as the country is concerned. I have also said they can amount to policy diversions in that context, so it is the responsibility of every Indian in his actions or comments to stay clear of unfortunate and condemnable instances like this." That cow protection is being used to polarize society along religious and caste lines is very evident. If one looks back, there are several Dadri-like instances where the animal has been used as a convenient excuse to unleash violence. Last year Santosh Kumar, a Valmiki, was reportedly attacked by men on motorcycles outside Delhi for carrying carcasses of cows in his tempo. He had been contracted by the South Delhi Municipal Corporation to cremate the dead cows. Similarly, five Dalits were set upon by a VHP mob in Jhajjar, Haryana, for carrying carcasses they were authorized to carry for cremation. In February, Uttar Pradesh animal husbandry minister Raj Kishor Singh told the state assembly that over 13,000 FIRs were filed in UP between 2012-2014 involving cases of illegal slaughtering. At the end of the day, it is easy to see why no government wants to end the cow crisis by investing money in long-term cow welfare and protection. For a start, it simply does not marry well with all the push towards fiscal discipline. When the welfare state for humans is being made to fade out, old age homes for the cow may not exactly look good in the balance books and may not find favor with international monetary agencies. But keeping the communal cauldron boiling in the name of the animal makes a lot of sense when it comes to playing divisive politics. IL

LEAD/ Meat and Beef Politics

RELIGION MATTERS Jain devotees queuing up at a temple on the last day of Paryushan

One Man’s Meat Is Another Man’s Poison

There is much ado about meat nowadays. And the reason for this issue’s resurgence is political, religious and commercial. But is its ban wise? What does it do to India’s secular image? By Kalyani Shankar 28

October 31, 2015

HOULD the state decide what one should eat or not eat? Can a minority community impose its wishes on the majority community? These are the questions dogging the country after a beef ban was imposed by Maharashtra in March and a meat ban by the Mira-Bhayandar Municipal Corporation last month. Its echo was heard in Delhiâ&#x20AC;&#x2122;s backyard in Dadri (UP) on September 28 when a Muslim ironsmith was dragged from his home and beaten to death by an angry mob after rumors that his family had been eating beef and storing it in their home. His son was seriously injured. The issue has now taken a communal color with

political parties jumping into the fray. With more states announcing similar bans, the issue has become contentious. Many are not opposed to a ban for a day or two, but a ban for four consecutive days and the wide publicity given to it, has created apprehensions. Jains who constitute a miniscule 0.37 percent of the Indian population are influencing the BJP on vegetarianism in most BJP-ruled states. The meat ban has several angles apart from the role of the state. It has a legal angle (courts are examining it), a political angle (BJP versus the rest), a communal angle (Muslims versus Hindus), a class angle (wealthy Jains versus the rest), a religious angle (Hindus versus Muslims), a health

FAITH RULES Jain devotees during a ritual of forgiveness and fasting while celebrating Paryushan

INDIA LEGAL October 31, 2015

LEAD/ Meat and Beef Politics

The meat ban issue may polarize voting in Bihar elections. The Shiv Sena has opposed it in Mumbai despite supporting the Jains earlier. The Congress, too, has taken on the BJP after having banned it in state after state. angle (nutrition) and a community angle (Jains versus the rest). GROWING UNREST It all started with a meat ban for four days during Paryushan, an annual Jain festival in Maharashtra, last month. The unrest was already there in the state after a beef ban in March, although only a small group of Brahmins and Jains eat vegetarian food. Those who support the ban (read BJP) argue that this was not the first time it was imposed. Gujarat had imposed it in April 1960 when the state was created. Rajasthan had imposed it during Paryushan for many years. Haryana too imposed a meat ban on September 10 when its urban local bodies

October 31, 2015

ordered all slaughter houses to remain nonoperational during Paryushan. Cow slaughter is banned in MP and Chhattisgarh follows the same rules as MP since it was carved out of it in 2000. In Jammu and Kashmir, the high court had called for strict implementation of a long-forgotten law prohibiting slaughter of cows, oxen and buffaloes. Then why is there an uproar now? Firstly, the Mira-Bhayandar Municipal Corporation had increased the duration of the meat ban. Secondly, it comes close on the heels of the beef ban imposed in BJP-ruled states. Thirdly, it became a fight between wealthy Jains and others. Fourthly, Bihar elections are taking place and any communal or political issue polarizes the voters. In Maharashtra, the Shiv Sena, which has always stood by the Jains, and its cousin MNS, oppose it for their turf war. The Congress accuses the BJP of majoritarianism after itself having banned it in state after state. The NCP, the AIMIM and the SP have joined the Sena in opposing the ban. Left parties, the SP, AIMIM, AAP and other parties are calling it an anti-Muslim stand. The TMC wants Prime Minister Modi to respond. POLITICAL GAINS Why should the BJP oblige the Jains? First of all, the Jain community, a core voting block

for the BJP, had been putting pressure on the party to increase the meat ban to eight days from two days during Paryushan. The BJP climbed down after protests and made it four days. The Jains are major funders of the BJP and are an influential community. The Congress too had pampered the Jains by giving them minority status in 2014. Secondly, it was a pre-poll promise and the BJP could not wriggle out of it. Did not the BJP stand by the beef ban earlier citing majoritarian sentiment as the deciding factor for protecting the cow? Thirdly, there is some merit that this was not the first time the ban was imposed. It was done way back in 1964 and then in 1994. Later, in 2003 and in 2013, there was a two-day ban. Fourthly, the BJP wants to expand its influence well beyond the Mumbai suburb of Mira Bhayandar because in 2017, the Brihanmumbai Municipal Corporation (BMC) will go to the polls. The Shiv Sena has traditionally controlled the BMC. The BJP is getting ambitious and is contemplating fighting the corporation elections on its own. Lastly, on the religious side, the Hindu majority consisting of about 80 percent of the 1.2 billion people regard cows as sacred. Muslims see this as an assault on secularism where the state is committed to supporting different religions equally. OPPOSITE VIEW While the minority Jain community’s sentiments should be respected, opponents of the meat ban ask whether the BJP would demonstrate the same level of compassion towards other minorities also. Secondly, the ban would affect thousands of people (mostly Muslims) depending on the meat business. It also provides livelihood to millions of people. Thirdly, there is also a health argument—meat is a source of nutrition. Since it is cheaper than chicken or mutton, it forms a staple diet for many Muslims, tribals and Dalits. Fourthly, no one is objecting to Jains following their religion or observing fasts but they can’t impose a ban that affects others. The legal angle is, in fact, quite interesting. Courts have been ruling on the cattle

issue as far back as the fifties and sixties. In 1969, a five-judge constitution bench held that hurting the feelings of a particular community or society cannot be a valid reason for a ban on slaughter. The Jain Paryushan issue had reached the Supreme Court in 2008 and it upheld a decision of local authorities in Gujarat to close slaughter houses during the festival. Justice Markandey Katju observed: “If the Emperor Akbar could forbid meat-eating for six months in a year in Gujarat, is it unreasonable to abstain from meat for nine days in a year in Ahmedabad today?” In 2009, the apex court upheld a Rishikesh Municipal Corporation decision to ban the sale of eggs in the holy town and held that the prohibition on trade would be ascertained as per the social and economic life of the community, falling back on Article 15A. In the present case, “keeping in mind the sensitivity of the people of a section of the society”, the apex court refused to interfere in the

FACT OF THE MATTER (Top) India exports only buffalo meat, also called “carabeef” (Above) Engineer Sheikh Abdul Rashid, MLA (center) along with Awami Itehad Party workers during a dharna near the main gate of civil secretariat in Srinagar during a protest on beef-ban issue

INDIA LEGAL October 31, 2015

LEAD/ Meat and Beef Politics

been a long-pending demand of the Sangh Parivar. President Pranab Mukherjee gave his assent to a law 19 years after the legislation was passed by the Shiva Sena-BJP government in Maharashtra in 1996. Other states where cow slaughter is banned include Uttar Pradesh, Tamil Nadu, Rajasthan, Punjab, Odisha, Puducherry, Madhya Pradesh, Karnataka, Jammu and Kashmir, Himachal Pradesh, Haryana, Gujarat, Bihar, Delhi and Andhra Pradesh. However, the implementation differs from state to state and it depends on the political climate. MAKING AMENDS? (Above) UP CM Akhilesh Yadav (third from right) meeting the family members of Mohammad Akhlaq, who was lynched in Dadri (Right) The BMC building in Mumbai; the BJP is eyeing the 2017 BMC polls

Bombay High Court’s order to put on hold a meat ban. The bench observed: “These are not issues forced down the throat of anyone. A spirit of tolerance has to be inculcated.” The Supreme Court also asked the High Court to decide within six months whether the sale of meat should be banned during religious festivals. The High Court had said that it was only going by law and not by sentiment and politics. The basis for the meat ban and beef ban stems from the fact that cow protection has

October 31, 2015

ECONOMIC ANGLE On the economic side, the export of beef (meat of cow, oxen and calf ) is prohibited as per the meat export policy of the government. While cows are sacred for Hindus, export of buffalo meat remains a huge industry. India is home to 300 million cattle and is the world's largest beef exporter and the fifth-biggest consumer. Meat from India is in demand in at least 65 countries as it is 20 percent cheaper than from Brazil or other countries. Also, buyers in Islamic countries are assured it is halal meat. Global meat consumption is expected to double by 2050. India being the top beef exporter is not something the saffron parties are proud of even though the meat is not of the cow or its progeny. India exports only buffalo meat, also called “carabeef ”. Although Prime Minister Modi during the 2014 campaign decried this “pink revolution”, the $5 billion meat industry is growing with a 20 percent increase in registration of meat exporters last year. In such situation, was the meat or beef ban a wise decision? Is not meat eating a personal choice? What business does the state have to interfere in what is cooking in your kitchen or what is kept in your refrigerator? Politics and religion should be kept out and incidents such as Dadri should be condemned. No one has the right to become a moral policeman. Then and then only, will the social fabric of secular India remain intact. IL

—The writer is the former political editor of Hindustan Times

LEAD/ Meat and Beef Politics

Different Rules for Different States

Part of the confusion regarding cow slaughter and beef consumption are vague laws. It serves political interests to keep it that way By Rakesh Bhatnagar

HERE has been a spate of diktats in recent times over cow slaughter and beef consumption. In rare cases, it has led to tragic events such as the lynching of Mohammed Akhlaq by a mob in Dadri over suspicion that he had beef in his home. What had led to confusion are vague laws all over the country regarding both issues. And a series of judgments have not really cleared the matter. Take the following cases. No state law explicitly bans the consumption of beef. Jammu and Kashmir, ruled by the BJP-PDP combine, for example, imposed a ban on cow slaughter and consumption of beef. However, on October 6, the Supreme Court suspended it for two months so that the state high court could take a final call on two conflicting orders passed by different benches on the issue. In Delhi, Gujarat, Maharashtra, Madhya Pradesh, Punjab,

October 31, 2015

Rajasthan and Uttar Pradesh, the slaughter of cow and its progeny, bulls and bullocks is completely banned. Most states prohibit the slaughter of cows. However, Assam and West Bengal permit its slaughter if it is over the age of 10 and 14 years, respectively. Most states prohibit the slaughter of calves. With the exception of Bihar and Rajasthan where the age of a calf is given as below three years, other states have not defined its age. There’s no restriction on cow slaughter in Kerala, Arunachal Pradesh, Mizoram, Meghalaya, Nagaland, Tripura and Sikkim. In Delhi, Goa, Puducherry, Punjab and Uttar Pradesh, violation of laws on cattle slaughter are both cognizable and non-bailable offences. Most of other states specify that offences would be cognizable only. Delhi and Madhya Pradesh have fixed a mandatory minimum imprisonment term of six months, but in several states, including Delhi, there is no ban on culling buffaloes (see map). SPIRIT OF TOLERANCE Contrary to the stand it took in 2005, the Supreme Court recently came out strongly on these curbs and declined to approve a temporary ban on the sale of meat in Mumbai in view of the Jain festival, Paryushan. On September 18, 2015, it declared that “a ban cannot be forced down somebody’s throat” and that the “spirit of tolerance” was paramount. Unfortunately, the beef ban has led to a growing underground business, giving rise to about 30,000 illegal and unlicensed abattoirs in India. While the ban on beef directly affects a

Bovine slaughter map Laws regarding cow slaughter in various Indian states

No Ban Total Ban Conditional culling Export/ sale to foreigners allowed Old laws contested

Conditional slaughter: In many states where cow slaughter is banned, bull and buffalo slaughter is allowed. In Gujarat, buffaloes can be culled. In states like Assam, Andhra and Telangana, a “fit-for-slaughter” certificate allows for slaughter. Himachal allows cow slaughter for research work. Himachal, Odisha allow cow slaughter in case of contagious disease Old laws contested: In J&K, law prohibits slaughter of cow and buffalo. But now, the Supreme Court has suspended the ban on cow slaughter and beef sale for two months, and asked the state High Court to examine legal issues. In Manipur, despite a 1939 law, beef is consumed.

Graphics: Anthony Lawrence

majority of SCs and STs and people of other religions, this has been a core issue for the ruling BJP. The BJP election manifesto in 2014 had said the party would protect the cow. “In view of the contribution of the cow and its progeny to agriculture, socio economic and cultural life of the country, the department of animal husbandry will be suitably strengthened and empowered for the protection of cow and its progeny,” the manifesto stated. UPHOLDING BAN On October 26, 2005, a seven-judge SC Bench comprising of then Chief Justice RC Lahoti, Justices BN Agrawal, Arun Kumar, GP Mathur, CK Thakker and PK Balasubramanyan upheld the 1994 ban by Gujarat regarding cow slaughter, saying it had been imposed to maintain the environment as envisaged in Article 48-A of the Constitution. This Article deals with “environment, forests and wild life”. The judgment said: “Protection and improvement of environment is necessary for safeguarding forests and wild life, which in

turn protects and improves the environment. Forests and wild life are clearly interrelated and inter-dependent. They protect each other.” The judges also said that cow progeny excreta is scientifically recognized as a source of rich organic manure. It enables farmers to avoid the use of chemicals and inorganic manure. However, Justice AK Mathur was the sole voice of dissent in this bench. In a separate judgment, he dismissed the appeal filed by Gujarat and held: “The court should guard zealously Fundamental Rights guaranteed to the citizens of the society, but at the same time strike a balance between these rights and the larger interests of the society. “But when such right clashes with the larger interest of the country it must yield to the latter. Therefore, wherever any enactment is made for advancement of Directive Principles and it runs counter to the Fundamental Rights an attempt should be made to harmonise the same if it promotes larger public interest.” IL

The Supreme Court has declined to approve a temporary ban on the sale of meat in Mumbai in view of the Jain festival, Paryushan.

INDIA LEGAL October 31, 2015

SPECIAL REPORT/ Jails

Mayhem Behind The the Bars

Indian jails are hell holes of corruption, drug dealing, gang wars and sexual predators. Far from being institutions to reform criminals, they are sliding into more chaos and despair By Ramesh Menon

AILS are supposed to be institutions which reform criminals and show them a new path after they realize the gravity of their crimes. But have overcrowded Indian jails failed in this effort? Why have they become dens of corruption, drug consumption, gang wars, ugly fights and jail-breaks? Why are VIP prisoners treated differently? Why has sexual exploitation continued? Why have prisoners who are too poor to pay bribes for basic facilities like edible food, suffered through their terms? Many questions. Disturbing answers. Far from emerging as reformatories, jails have become veritable hell holes. Many prisoners stay there for years as undertrials suffering humiliation, bloody fights, sickness

October 31, 2015

caused by unhygienic conditions and fighting off sexual predators. Many have committed suicide as it was their only escape. Questions of security and human rights are often raised about Indian jails. The most recent incident has been in Tihar Jail, one of the largest and supposedly bestrun jails in India, which saw much reform and change when Magsaysay Award winner Kiran Bedi was at the helm of affairs. However, it has recently seen a series of gang wars, murders and jail-breaks. Early this month, two prominent undertrials in Tihar got into a fight to establish supremacy and ended up killing each other. Ishwar, who was being tried for attempt-tomurder, multiple cases of snatching and robbery, was returning from an eye camp within

some of India’s most wanted criminals and terrorists. It is perceived to be one of the worst kept jails in the country. Like most jails in India, it is cramped and overcrowded.

n any jail, a prisoner has to pay a price to get decent facilities to get away from stinking and unkempt cells which lead to sickness. Lunch is ready as early as 7 am in the morning and dinner at 3pm in the prisons of Maharashtra. As there are no refrigeration facilities, imagine what condition the food would be in by the time it is consumed. They are stored unhygenically and that too in hot and humid places. This fortnight, the Maharashtra government ordered a high-level probe into irregularities in Arthur Road Jail about an alleged illegal rate card where inmates are charged money for basic amenities. The home department has asked Additional Director General of Police (prisons) Meeran Borwankar to look into the allegations and take immediate action against the guilty. Six months ago, five undertrials—three of whom were detained under the Maharashtra Control of Organized Crime Act (MCOCA)— dramatically escaped from Nagpur Central Jail. A day later, when Borwankar searched the jail, she found 23 mobile phones. Some of them had internet and WhatsApp facilities. Liquor bottles and batteries were also

CHAOS AND DESPAIR (Left) A Tihar jail prisoner injured in a fight with another inmate being taken out of a hospital after treatment (Below) Tihar Jail has recently seen a series of gang wars, murders and jail-breaks

the jail when Anil Choudhary, who has been charged with numerous robberies, attacked him with a sharp piece of metal, inflicting him with deep gashes. Ishwar reportedly fell unconscious while three of his aides caught Choudhary and attacked him. Both were rushed to hospital but could not be saved. Ishwar had been sent to prison numerous times in the last eight years, while Choudhary had been in prison for the last three years. Last month, two rival gang leaders were killed in another fight between them in a moving police van. It is not just Tihar. Every jail has such stories that reek of corruption and mismanagement. Mumbai's Arthur Road Jail—which housed Ajmal Kasab, hanged for being part of the 2008 Mumbai terror attacks—houses INDIA LEGAL October 31, 2015

SPECIAL REPORT/ Jails

pended Prison Superintendent Vaibhav Kamble after the jail break and ordered an inquiry by the Director General of the AntiCorruption Bureau. Fadnavis said: “The prisoners could not have escaped without internal help. We had installed mobile jammers in the prison, but their operations were suspended before the prisoners escaped.”

CRAMPED AND OVERCROWDED Mumbai's Arthur Road Jail is perceived to be one of the worst kept jails in the country

Additional DG of Police (prisons), Maharashtra, Meeran Borwankar (right) has been linked to a CCTV scam. She reportedly got cameras installed in all the prisons of the state, but most were not in working condition. 38

October 31, 2015

found in the jail. Vijay Gawli, a jail staffer, had earlier told the media that inmates were allowed access to mobile phones by the senior supervisory staff. Gawli had said that seniors often provided liquor, cigarettes and mobile phones to prisoners. He alleged that even sex workers were brought into jail to entertain some prisoners. In fact, Gawli had lodged a police complaint alleging that a senior jail official had forced him to sign statements saying that his comments to the media were incorrect. A show cause notice was served on Gawli for this “indiscretion”. Maharashtra CM Devendra Fadnavis sus-

nce upon a time, the Maharashtra police enjoyed the reputation of being one of the best in the country. However, in recent years, this has got ruined with police officials involved in rape, extortion, underworld links, disproportionate assets, custodial death, fake encounters, shoddy investigation and so on. From 2006 to 2010, over 21,000 cases were registered against the state policepersons, including ones of illegal detention and custodial death. The National Crime Records Bureau (NCRB) puts the state police fifth on a list headed by Madhya Pradesh (93,710 complaints), followed by Uttar Pradesh (34,364), Delhi (29,165) and Punjab (23,090). Maharashtra with a 1,80,000 strong police force is the largest in the country. It has a ratio of 17.93 policemen for a population of 10,000 which is also the best in the country. States with a larger population like Uttar Pradesh have a lesser ratio. Last year, a report of the Public Accounts Committee in Maharashtra made a searing indictment of prisons in the state, pointing out how they were riddled with corruption, that addictive substances were being provided to inmates and that they had inadequate manpower to guard these facilities. The report proposed that jammers be installed to paralyze mobile phones within jails and insisted that CCTV cameras be put up. It said that some districts like Gondia did not have any facility to house prisoners. The report said: “Society will not be safe if there are no prisons. The number of criminals in the state is increasing. As criminals from other states are also being kept in Maharashtra, the number of jails we have is falling short.” The state has 47 jails and 172 sub-jails and also has the reputation of having the most corrupt jails in the country. Posting to a

Maharashtra jail is considered a coveted one, said a source to India Legal, as it involves rampant corruption. The source said that it is common to pay a price for beedis, cigarettes, liquor, better facilities and also to escape harassment at the hand of jail officials. To corner VIPs into paying bribes, they are often put into cramped cells all alone on the pretext that there is a security threat when there is none, the source added. Numerous jail officials have cases lodged against them for criminal activities. Two years ago, IPS officer AK Jain was convicted in a corruption case and sentenced to five years in jail. He was also asked to pay a fine of `1.5 lakh by a Mumbai court. He and his chartered accountant were arrested by the Mumbai Police for accepting a bribe.

n a knee-jerk reaction to the goings on at Yerawada Central Jail in Pune, which is one of the largest in South Asia, the Maharashtra government transferred Superintendent Sharad Khatavkar replacing him with Yogesh Desai. Many wondered if that was a sound decision as Desai was under the scanner in three cases, including the killing of Chhota Rajanâ&#x20AC;&#x2122;s henchman OP Singh and an alleged recruitment fraud. When Desai was the superintendent of Adharwadi Jail in Kalyan, he was caught by the Anti-Corruption Bureau (ACB) on January 10, 2001, for accepting a bribe of `15,000 from a relative of a jail inmate. But later, Desai was acquitted of the charge.

The jail administration in Maharashtra needs to clean up the system before corruption spreads even more. Many officials were known for illegal activities when Satej Patil, aka Bunty Patil (left), was the minister of state for home in Maharashtra. However, he came under the scanner again in November 2002 when OP Singh was killed by another gang member, DK Rao, in Nashik Road Jail. Desai, who was then superintendent of the jail, was suspended. Later, Desai was named in alleged irregularities in recruitment of prison staff. A total of 13 officers from the prison department, including Desai, were being investigated after a case was filed with the Pune police alleging that these officials collected money from candidates and passed them in a recruitment examination for sentries. This case is still pending in court. He was later transferred out of Yerawada. Meanwhile, the Bombay High Court

Complaints, inquiries and cases registered against Police Personnel during 2007-2011 Judicial

Complaints/ Cases declared false/ unsubstantiated

No. of cases registered during the year

119

278

28,412

17,215

204

54,873

24,302

611

2010

58,438

21,563

2011

61,765

21,144

Year

No. of Inquiry Instituted

No. of complaints received/ alleged during the year

Departmental

Magisterial

2007

51,767

13,953

2008

48,939

2009

No. of cases Reported for regular Departmental action

Sent for trials/ charge sheeted

7,908

3,129

941

29,577

5,445

4,596

1,132

481

28,120

14,975

9,759

1,618

326

268

31,115

10,470

9,665

861

282

246

28,789

11,171

10,020

913 Source: NCRB

INDIA LEGAL October 31, 2015

SPECIAL REPORT/ Jails

Two CDs were recently sent to the president of India which reportedly had evidence of Yogesh Desai’s (right) involvement in corrupt activities and links with Satej Patil, aka Bunty Patil. too had come down on Borwankar for the manner in which she dealt with a case of alleged harassment by Asha Bajaj, a Powai resident. Bajaj was sent to Yerawada mental asylum on June 14. She managed to escape on June 16 and filed a petition in the high court challenging the police action against her. The court ruled that her detention in a mental hospital was unlawful. According to the 22page judgment, the division bench of Justice Bilal Nazki and Justice Ashutosh Kumbhkoni had expressed unhappiness with the role played by the senior IPS officer and the conduct of a magistrate who sent Bajaj to the mental asylum. The judges said: “We are of the view that the whole exercise of sending Bajaj to the mental hospital was done with a preconceived plan in which the main role has been played by Borwankar.”

EMBROILED IN CONTROVERSY Yerawada Central Jail in Pune

October 31, 2015

he court observed: “If Meeran Borwankar had any grievance, she could have taken recourse to law and Asha Bajaj could have been booked for the offences she might have committed. But the course taken by Meeran Borwankar was absolutely wrong and was not expected of an officer of the calibre of Borwankar. There was

no material to suggest that there was any reason for the police officer to believe that Asha Bajaj’s presence was dangerous by reason of her mental illness.” Borwankar’s name has also been linked to a CCTV scam. She reportedly got cameras installed in all the prisons of Maharashtra but most of them were not in working condition. The bills for the cameras were inflated and the quality was poor. No proper tender was floated for the project. A complaint has been filed before the president of India to take action against notorious officers in Maharashtra. The jail administration in Maharashtra needs to perk up and clean up the system before the virus of corruption spreads even more. Many of the officials were known for their illegal activities when Satej Patil—also known as Bunty Patil—was the minister of state for home in Maharashtra. Right now, there does not seem to be any concrete plan to reform the jail administration or reach out to reform the prisoners. In the Pradeep Annasaheb Pathrikar vs State of Maharashtra, a sessions court in Mumbai in July 2015 did not grant relief to the Superintendent of Arthur Road Jail, Vasudav Burkule, and Deputy Superintendent Pradeep Pathrikar in a bribery case. They were charge-sheeted by the ACB under sections of the Prevention of Corruption Act. It was alleged that Pathrikar in connivance with Burkule, demanded a bribe of `40,000 from the prison officer for ensuring that he cleared one of the papers in the departmental Prison Officer Grade II examination. The

prosecution made out a case based on a complaint filed by the prison officer to the ACB. They alleged that based on the complaint, ACB had laid a trap for Pathrikar and he was nabbed. According to the ACB, the prison officer was asked by Pathrikar to go to his office and hand over the cash. He was told to put the cash on the center table. After doing so, the officer signaled to ACB officials and Pathrikar was caught red-handed. According to the prosecution, all evidence showed that Burkule wanted the amount and Pathrikar was carrying out the plan of action.

owever, Pathrikar in his discharge application to the sessions court, challenged the charge-sheet and denied all allegations. He even accused the prison officer of framing him. Pathrikar further alleged that he was used as a tool to frame Burkule. On all these grounds, he claimed discharge. Looking at all the evidence and facts and circumstances, the sessions court found that both Pathrikar and Burkule were indeed guilty. It observed that during the course of the investigation, prima facie it appeared that the amount was accepted by Pathrikar on behalf of Burkule. The defense tried to allude to other cases to bail them out, but the court was not convinced. However, it ruled that the accused may raise their objections once again at the time of the final hearing. There was no room for entertaining them at the initial stage of framing charges. It rejected the discharge application and allowed ACB to proceed with the investigation. Jails all over India have such stories to tell. In 2010, Wikileaks quoting a diplomatic cable, said that the Red Cross had briefed US diplomats about the use of electrocution, beatings and sexual humiliation of detainees in Jammu’s Kot Bhalwal Jail in 2005. Former Director General of Police Kiran Bedi told India Legal: “We all know what is wrong. If the leadership in jails walks around every morning instead of sitting in their offices, they will immediately know what is wrong and what needs to be done.” She insists that “the other officers should also walk

“We all know what is wrong. If the leadership in jails walks around every morning instead of sitting in their offices, they will immediately know what is wrong and what needs to be done.” —Kiran Bedi, former Director General of Police

Number of Police Personnel Undertrial, Convicted & Acquitted during 2007-2011 No of poliof police No of personnel cepersons Nopersonnel whose cases in whose were withcases Convicted Acquitted drawn or trial was otherwise completed disposed off

SI. NO

Year

No of police personnel sent for trial

2007

1,273

199

149

106

2008

1,245

125

128

2009

1,279

132

142

2010

1,107

141

205

152

2011

1,229

475

439

392 Source: NCRB

around and connect with prisoners, opening communication lines”. When Bedi was in charge of Tihar Jail, Bedi transformed it into a jail that attracted international attention. She made prisoners study, gave them vocational training, introduced them to daily spiritual exercises and lectures, put gangsters in a separate ward and led from the front. The results were there for all to see. But that, as we see, was merely a flash in the pan. There are good practices to learn from in the Indian context itself. But unless there are prison reforms, jails here will only slide into more chaos and despair. Corruption, gang wars and jail-breaks cannot be wished away. They need to be dealt with sternly if there has to be light at the end of the tunnel. IL INDIA LEGAL October 31, 2015

COLUMN/ Vipin Pubby/Defamation Notices

Anthony Lawrence

Slapped by a Suit As the resident editor of a major daily, this writer has had his share of defamation suits. Here is a personal account of the time and energy wasted over frivolous suits aimed at muzzling the press By Vipin Pubby in Chandigarh

OR over 17 years, I had been bearing the cross with my name marked by an asterisk on the back page of the newspaper editions I edited. The symbol was a pointer to the declaration that I was responsible for the selection of stories under the Press and Registration of Books (PRB) Act. This was also aimed at absolving the editorin-chief, the managing editor, the executive editor, the printer, publisher and all and sundry

October 31, 2015

from the fangs of defamation laws of the country. And I have had a fair share of brushes with the law. After signing scores of vakalatnamas, paying innumerable visits to various court premises, spending hours waiting for a call from the peon outside the court rooms, standing still before the magistrates and judges as the counsels argued the cases and getting to sign haajri, I have come out unscathed. Either the cases were dismissed after years of hearings or were with-

drawn by the alleged victims of defamation due to sheer exhaustion. DELAYING TACTICS The cases dragged on as the advocates employed tactics to deliberately delay the hearings to let the hearings go on for years together. Besides, there were all those adjournments because either the magistrate would go on sudden unannounced leave or there would be a strike by lawyers or the counsel of either side would fall ill or would be busy in some other court. On all such occasions, we would just sign in our presence and get another tareekh. It is also true that most of the cases had little leg to stand on and it was obvious from the very beginning that these cannot pass muster. Other than the cases which ended up in the courts, there were at least five times the number of legal notices for defamation that were received for the person responsible under the PRB Act. I shall come to that in a moment. In almost all the cases that were slapped on me, which included both civil and criminal defamation and in many cases both, there was little evidence that I or the newspaper could have had any vested interest. In most cases the newspaper would have been happy to make amends to settle the issue. CASE DISMISSED One such case pertained to a woman from Hoshiarpur in Punjab. The Indian Express had run a series on the scandal involving allotment of petrol pumps in the country. While referring to one of the allottees, our reporter mentioned that she was married and related to an influential person. The allotment to her was cancelled among that of several others. After several months, we received a court summon as she had filed a defamation case for describing her as a married woman. She maintained that she was unmarried and she sought damages as no one was ready to marry her citing our story! Not just that, she also filed a complaint with the SC/ST Commission, which marked it to the state vigilance department which, in turn, summoned me for questioning. The case went on for several years till we heard that she had stopped coming for the hearings and the case had been dismissed. Another defamation case was filed by the

Former railways minister Pawan Bansal moved court against us for allegedly defaming him. Fortunately, elections were announced and he withdrew the case. firebrand Akali leader Simranjit Singh Mann, for which I must have visited the holy town of Fatehgarh Sahib over a dozen times. I was a defendant, along with the reporter who had quoted a police officer in one of her stories saying that Mann was getting funds from abroad. The police officer had made the remarks at a press conference and several other newspapers had also carried the news item. However Mann, possibly piqued by some other reports by her, slapped a suit against us. Even though he rarely made an appearance in the court, we were not given any exemption. After years of litigation, the judge threw out the case. Fortunately for us, Mann did not drag us to higher courts or we would have had to spend several more years to get to the final judgment. Another example: The newspaper published a small story based on one of the numerous press releases that land in newspaper offices daily. The release carried certain defamatory statements signed by around 50 students and one of our junior reporters faithfully reproduced the charges. The story went past all the gatekeepers and was published even though the lady against whom these charges were made was not contacted by the reporter for her version. Instead of approaching the newspaper she filed a case in the court. Her plea was that the signatures were forged and that the press release was planted by her professional rivals. The court issued us a notice. On the first day of the hearing, the magistrate asked us if we were ready to publish her INDIA LEGAL October 31, 2015

COLUMN/ Vipin Pubby/Defamation Notices

In Akali leader Simranjit Singh Mann’s case, I must have visited Fatehgarh Sahib over a dozen times. While he rarely came to the court, we were not given any exemption.

Criminalize defamation? IN July this year, Subramanian Swamy and Rahul Gandhi had challenged the constitutional validity of Sections 499 and 500 of the IPC which relate to criminal defamation. They argued that initiation of criminal proceedings will have an adverse effect on a person’s right to free speech under Article 19(1)(a) of the Constitution. The two leaders had been charged with defamation for their speeches in Tamil Nadu and Maharashtra, respectively. The Supreme Court, hearing their petitions, had observed that “political debates may not come under the definition of criminal offence for defamation.” Reserving its verdict, it wanted the center to respond on the issue. The center, arguing for the retention, had said: “There will be anarchy in the society and everyone will think he has a right to hurl abuses if the criminal defamation is repealed as a penal offence.” Later in September, the apex court stayed three criminal defamation cases against Swamy for commenting on Tamil Nadu CM J Jayalalithaa.

October 31, 2015

version and regrets. Given the harassment we had faced in the past, we immediately agreed and the magistrate advised the petitioner to resolve the issue. However she was adamant and fought it over eight years, with scores of adjournments and dozens of hearings. Over the years, we became familiar with each other after meeting in the courts. One day, we got talking and she realized that we are fighting each other unwittingly while the real culprits—the one who issued the alleged press release and the junior reporter who had filed the piece—were nowhere on the scene. It was then resolved that she would withdraw both the civil and the criminal cases and we shall publish our regret—something we had agreed eight years ago. Yet another case is going on for nearly 10 years in a Jalandhar court. We came to know about the existence of the case several years after it was filed in 2005 as we had shifted our premises and the notices kept coming to the old address. It was filed by a baba who had made us and some other newspapers a party to a case filed against a village panchayat which had allegedly defamed him. TARGET OF MANY There has also been no dearth of politicians filing cases. Former railways minister and MP from Chandigarh Pawan Bansal, himself a lawyer, moved court to seek action against us and some local BJP leaders for allegedly defaming him. We appeared in court a couple of times

but then, fortunately, elections were announced and he withdrew the case. Interestingly, I also had the “honor” of receiving legal notices from a couple of bureaucrats. The local deputy commissioner once sent us a notice that we were trying to create public disorder by publishing false news about him. The notice was on behalf of the office of the deputy commissioner and not by the officer in his personal capacity. However, it was not taken any further after their seniors were apprised of the notices. Now coming to the legal notices received by us. The incidence of receiving such notices was at least five times the number of cases finally pursued against us. This was something which our legal team took very seriously and it made it a point to give a detailed reply, evidently to avoid taking the case to the courts. However, over the years I realized that this ploy was often used to muzzle the media and prevent follow-ups or similar reports appearing in other newspapers. Many of those who sent legal notices also mailed copies to the other editors warning of legal action if they wrote anything about it. This effectively ensured that the story got buried in a deep freeze. Legal departments of newspapers would get extra cautious and even journalists would like to avoid getting into any trouble. This was by far an effective tool to prevent the exposure of scandals. There are still a couple of cases pending in the courts. One of these involves a senior IPS officer, now retired, who had named nearly 60 editors and reporters as respondents in a defamation case. Though the case was filed about six years ago, nearly half of the respondents have so far not been served the notices. With the Supreme Court hearing a bunch of petitions challenging Sections 499 and 500 of the IPC (which criminalizes defamatory speech) filed by politicians, some hope is in sight that defamation is at least decriminalized. It is essential that such fetters are removed if free speech is to remain meaningful. Reasonable restrictions are already in place under other existing laws and the provision of exemplary costs under civil proceedings should be sufficient to deter defamation. IL

The writer served as resident editor of The Indian Express in Chandigarh

INTERNATIONAL BRIEFS

BP to pay $20 billion damages T he US Justice Department and five states announced a $20 billion final settlement of environmental damage claims against BP arising from the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, reports USA Today. The deal, once approved by a judge, would resolve all civil claims against BP and end five

Tourists may skip Maldives

ourists could be urged to boycott beach resorts on the Maldives following a highly critical United Nations ruling condemning the illegal imprisonment of its former president, Mohamed Nasheed, reports The Guardian. Nasheed, sentenced in

March this year to 13 years in prison after being found guilty of terrorism, “did not receive a fair trial”, according to the UN Working Group on Arbitrary Detention (WGAD). The latest twist in the protracted legal battle, pitting barrister Amal Clooney against Cherie Booth QC, has focused international attention on the islands’ increasingly controversial human rights record. Nasheed, 48, was the first democratically-elected president of the Maldives and highlighted the dangers of global warming to his low-lying nation. He was ousted in 2012.

No plea deal for Snowden

SA whistleblower Edward Snowden has said that the US justice department has made no effort to contact him so far to discuss a deal that would see him return from exile in Russia. Snowden, who is wanted in the US under the Espionage Act after leaking tens of thousands of top secret documents, said he had offered to do time in prison as part of a deal. “We are still waiting for them to call us back,” he said in an interview on BBC Panorama. His comments come barely

months after Eric Holder, who was US attorney-general until April, said Snowden’s revelations had “spurred a necessary debate”. He said the “possibility exists” of a plea deal.

years of a legal fight over a 134 million-gallon spill that affected 1,300 miles of shoreline. It would also bind the company to a massive cleanup project in the Gulf Coast area to restore wildlife, habitat and water quality. The settlement, filed in a federal court in New Orleans, finalizes an agreement first announced in July.

Hillary for tougher gun control law

Brazil’s Rousseff faces legal battle

Brazilian audit court has ruled that President Dilma Rousseff broke the country’s law in managing last year’s budget. The government was accused of borrowing money illegally from state banks to make up for budget shortfalls. The irregularities amount to more than $26 billion, according to the court. The opposition says the ruling by the Federal Accounts Court—which reports to the Congress—paves the way for impeachment proceedings. Rousseff was re-elected less than a year ago but has record low popularity ratings. The Brazilian government said it would challenge this ruling in the Supreme Court. If the decision is upheld by the Supreme Court, the government’s accounts will be assessed by the Congress, where Rousseff’s coalition holds a majority.

emocratic presidential candidate Hillary Clinton proposed new gun control laws in the wake of the deadly Oregon school shooting, stressing on the abolishment of legislation that protects gun makers and dealers from being sued by shooting victims. Clinton also vowed to use executive powers as president to expand background checks at gun shows and ban domestic abusers from purchasing guns. Her promise comes after a deadly shooting at Umqua Community College in Roseburg, Oregon, in early October, leaving eight students and a teacher dead. Clinton also blasted the Republicans, arguing that they “put the NRA [National Rifle Association] ahead of American families.”

— Compiled by Anuj Raina INDIA LEGAL October 31, 2015

LEGAL EYE/ Law Schools

Abolish three-year law degrees: Judge In an order, Justice N Kirubakaran of the Madurai Bench of the Madras High Court roots for five-year law courses and asks for scrapping of the three-year courses By Venkatasubramanian

CATCH â&#x20AC;&#x2122;EM YOUNG Toppers at the convocation ceremony of National Law University, Bangalore

October 31, 2015

survey has shown that Indiaâ&#x20AC;&#x2122;s national law schools, which offer five-year courses, are marked by elitism and lack of diversity. However, in an order, Justice N Kirubakaran of the Madurai bench of the Madras High Court, found virtues in the National Law Universities (NLU), and rated their education several notches higher than the traditional three-year law degree course still offered by many universities and accessed by all. In an order passed by him in SM Anantha Murugan vs The Chairman, Bar Council of India, New Delhi, on

“It is only in the three-year course, criminals join and not in the five-year course as age factor is a problem. Therefore, three year course has to be scrapped in the interest of the judicial system.” —Justice N Kirubakaran of the Madurai bench of the Madras High Court between the privileged who get admission to the NLUs and those who didn’t. A total of 97 percent of the students surveyed went to higher secondary schools that had English as the medium of instruction, despite the fact that English was the mother tongue for only 3.5 percent of them. October 6, Justice Kirubakaran has directed early abolition of three-year law degree courses. He has attributed the propensity among lawyers to indulge in criminal behavior to aged persons wanting to study and contribute to the practice of law through the three-year course. However, a recent survey conducted by Increasing Diversity by Increasing Access (IDIA), attempts to drive the policy in the area of “inclusive” legal education and “diversity” within law schools and the legal profession. This project was initiated by Shamnad Basheer, a product of the five-year law school, and conducted by him along with Geetanjali Sharma. The survey collected responses from students of nine top national law schools.

ELITIST NLUs? In more than 70 percent of households of NLU students, both parents were conversant with English. Forty-two percent of students were found to have a friend or close relative in the legal profession, while under 10 percent had a parent who was a lawyer. More than 83 percent of students’ parents earned more than `3 lakh per year and 53 percent earned above `7 lakh per year, yet nearly 80 percent of students

OLD WORK ETHOS? Patna High Court advocates abstain from work during a strike to protest seating arrangement in the court premises Photos: UNI

LAW SURVEY The IDIA project aims at reaching out to marginalized and under-represented groups, sensitizing them to law as a viable career option and helping interested students in acquiring admission to these law schools. IDIA’s research has confirmed elitism and the lack of diversity in student populations in NLUs. In a blog written on August 7 this year, Basheer brought to light some disturbing findings. Hardly one percent of students who made it to the top five NLUs were from a vernacular medium school. IDIA surveyed 550 students, of whom 18 were from non-traditional backgrounds supported by it. Among the findings, lack of English skills was cited as the most distinguishing factor INDIA LEGAL October 31, 2015

LEGAL EYE/ Law Schools

Among IDIA’s research findings, lack of English skills was cited as the most distinguishing factor between the privileged who get admission to the NLUs and those who didn’t. LEGAL EAGLES IN THE MAKING Mock court competitions are an important event in law school calendars

took expensive coaching, which can cost `1 lakh or more to crack the highly competitive Common Law Admission Test (CLAT). Only 1.6 percent of students came from Muslim families, despite Muslims making up 12 percent of India’s population. The survey showed that these types of minority issues could extend to bullying and ragging, as 7.3 percent of respondents reported that they had faced harassment, ethnic or racial abuse because of their background, including their lack of English conversational skills or dressing sense, and 12.4 percent reported difficulty fitting into law schools because of their background. Three-year law courses have been able to attract students from various disciplines, whereas five-year courses attract only those fresh from schools without a basic degree in any of the disciplines. Those with degrees in other disciplines have been found to be eclectic in their approach to understanding and practicing law and confront legal problems with a fresh perspective, which is not the case with the five-year law students. With their basic degrees in other disciplines, those who are the products of threeyear law courses have been found to bring by instinct and training, an inter-disciplinary approach to the practice of law, which would otherwise be lost if it is confined to mere literal

interpretation of the legal provisions. It is not as if the five-year courses are without any merit. Thanks to NLUs, many bright law graduates have joined the legal profession, thus contributing to its dynamism. The profession stands to benefit when both the three-year and five-year courses cater to the educational needs of different sections of society. AGE FACTOR However, Justice Kirubakaran order said: “It is only in the three-year course, criminals join and not in the five-year course as age factor is a problem. Therefore, three year course has to be scrapped in the interest of the judicial system,” he concludes. Justice Kirubakaran also says: “If a criminal gets an avatar of an advocate by purchasing a law degree, if any action is taken against him, he would play the advocate card and the advocate community would resort to boycott of courts paralyzing the courts’ functioning without even verifying as to whether action has been taken against regular practitioner or a criminal turned lawyer. ““Label of advocate makes the criminal to have acquaintance with police, threaten police and to conduct katta panchayat without any problems and avoid police action, including filing of complaints against them,” he further says. ENTRY OF CRIMINALS The reason for the entry of criminals into the legal profession has to be squarely attributed to alleged Bar leaders and many Bar Council members and their boycott of courts, he says. According to him, the word “a person” used in Section 24 of the Advocates Act means a person with honesty, moral values, ethics, integrity and without a criminal background and that person alone is qualified to be admitted as an advocate on a state roll. The State Bar Council is duty bound to verify the nature of the crimes alleged and also verify the antecedent of the candidate seeking enrolment in a meticulous manner so as to deny entry pass to such criminal elements into the legal profession, he holds. If a person accused of criminal offences is allowed to enroll, he would stand as an accused in one case and in some other cases, he would

October 31, 2015

be representing as an advocate; such an incongruous situation should be avoided, he held. Parliament should amend the Advocates Act to incorporate provisions for disqualifying persons accused of offences, except bailable offences attracting up to three years imprisonment, and compoundable offences (including matrimonial, family and civil dispute offences). They should be disqualified either from getting into law colleges or entering into the profession and till the amendment is brought in, there shall be a direction to the Bar Council of India (BCI) and bar councils to follow this mandate, he said. Justice Kirubakaran has directed the BCI and the bar councils not to enrol any candidate accused or convicted of such offences, and those dismissed or removed from any service or who had left service pursuant to any departmental action/domestic proceedings. BAR COUNCILS Bar councils should grant conditional/provisional enrolment to law graduates, who have criminal cases involving bailable offences attracting punishment up to three years and

compoundable offences, open a separate file for this purpose, and monitor the cases by obtaining information about the outcome. If convicted subsequently in such offences, the Bar Council should issue show cause notice to revoke provisional enrolment of such advocates, he has held. Justice Kirubakaran has observed that the number of advocates should be directly proportionate to the number of cases and conseque-ntly, the number of colleges. In the US, there is one lawyer for every 300 people or approximately 0.36 percent of the total population. According to a story published by a website in 2013, the national average in India is 886 non-lawyers per lawyer. This suggests that we are still a less litigious society, as compared to the US, and there is scope for increasing the proportion of lawyers to non-lawyer population if only to create greater awareness of the rights of the marginalized and the under-privileged. Justice Kirubakaran has directed that because the Bar Council has failed in its duty, its functions must be entrusted to an expert body of legal luminaries, academicians, etc. IL

CREAM OF THE CROP The five-year law courses at various law schools provide a vibrant atmosphere, but to the elite

INDIA LEGAL October 31, 2015

CONTROVERSY/ Gender Injustice

Access Denied

The decision to bar entry of women into the mazaar of Haji Ali Dargah in Mumbai has reached the Bombay High Court. With successive state governments not taking any decisive action, it is now left to the judiciary to resolve the issue By Meena Menon

OMETIME in 2012 when women went to the Haji Ali dargah off the Worli seaface in Mumbai, they found their access to the mazaar (tomb) of the famous Sufi saint Haji Ali Shah Bukhari blocked with steel. Since then, for two years, activists Noorjehan Safia Niaz and others have been trying to regain entry which had been closed in the name of Sharia, according to the trustees of the Haji Ali Dargah. After exhausting all options, Niaz and Zakia Soman, joint founders of the Bharatiya Muslim Mahila Andolan (BMMA) filed a PIL in August, 2014 in the Bombay High Court. While the last hearing on August 19 did not take place, Niaz said that the previous order in July had asked the petitioners and the government to sort out the issue. The matter is still pending as another

October 31, 2015

hearing due on October 9 had been postponed to October 13, 2015. Niaz recalls that earlier, the inner sanctum was open for everyone. “The development was shocking for me as we used to visit it often since we were children. The shrine has separate entrances for men and women but we were allowed to go right up to the mazaar and pray,” she says. According to her, she was able to enter the sanctum till March 2011 but it was around July 2012 that the steel bars were put up and women had to pray from a little distance. The BMMA activists met the president of the Haji Ali Trust, Abdul Sattar Merchant in July 2012 and the petition quotes the reasons given by him for not allowing women near the mazaar. “Women wear blouses which are wide-necked and they bend down on the mazaar (tomb) thus showing their breasts. “Unko unke pallo ka hosh nahi rahta hai’

For three years, activists Noorjehan Safia Niaz and others have been trying to regain entry into the mazaar of the Haji Ali Dargah, which was closed to women in 2012 by trustees of the shrine, in the name of Sharia.

GENDER BIAS (Below) The trustees of the Haji Ali feel it was a mistake to allow women access to the mazaar

(they don’t pay attention to the pallu). Sattar told BMMA that the decision was taken for the safety and security of women. He held that the rule is written in the Sharia and hence they were following it. He admitted that earlier they were not aware of the provisions of the Sharia and had made a mistake. As soon as they realized it, it was rectified.

he BMMA was indignant about this Sharia rule and decided to survey all the 19 dargahs in Mumbai in 2012. They found that only seven of them did not allow women to pray beside the tomb. “If this is part of the Sharia, it should apply everywhere,” Niaz said. The women then sought the intervention of the Maharashtra State Minorities Commission which transferred the matter to the state minorities department. A meeting which was called by the department was INDIA LEGAL October 31, 2015

CONTROVERSY/ Gender Injustice

FIGHT AGAINST PREJUDICE Noorjehan Safia Niaz recalls that as a child she often visited the inner sanctum of the dargah

The Bombay High Court wanted the trustees to consider the petitioners' request and take a decision, one way or the other. The court said it may consider granting relief to them if the decision is not in their favor. 52

October 31, 2015

not attended by the trustees of the dargah. The Haji Ali Trust also did not respond to letters from BMMA. The 550-year-old dargah symbolised the syncretic culture of Mumbai, in a sense, and the liberal Sufi tradition, Niaz adds. The PIL demanded, among other things, that the high court declare that women have an equal right of entry and access to all parts, including the inner sanctum of the dargah, on par with the male devotees. The petitioners said they were aware that gender discrimination was being practiced at several places of worship cutting across religious lines. They were of the considered opinion that all discriminatory practices, wherever they were existing, were unconstitutional and ought to be prohibited and prevented. The petition also pointed out the failure of the state to take a decisive step in this matter. On August 5, 2015, the division bench of the Bombay High Court said that the Haji Ali Trust disputed that women were allowed to enter the sanctum before 2012. The court held that, “Notwithstanding the controversy as to whether women were permitted prior to 2012 or not we had requested the trustees to consider the request and take a decision and

if possible resolve the inter se dispute by finding an amicable solution to the problem. However, we are informed that no decision is taken so far.” The bench hoped that the trustees will apply their mind and consider the request of the petitioners and take a decision, one way or the other. If the decision is not in favour of the petitioners, the court said it may consider if such relief can be granted by the court after hearing both sides.

he trustees have not responded to any of the calls for meeting by the petitioners. The Congress-led state government at that time did not take much interest in the case and did not even file a reply although it was one of the respondents. Even when the matter was taken up in 2012, the Maharashtra State Minorities Commission had said it was a religious matter and it was not within the purview of the government to take a decision. The current chairperson of the Commission, Mohammed Hussain Khan, said it was a religious matter and he did not wish to comment on it. The Haji Ali Dargah complex with the tomb of saint Haji Ali Shah Bukhari and a mosque is built on rocks off the sea. It was given its present-day shape in the early 19th century, according to its website. Over 10,000 to 15,000 visitors pay homage daily and the website proclaims that “people from all parts of the world without restrictions of caste, creed and religion” visit the dargah. The PIL said the restriction imposed on the entry of women into the inner sanctum emanated from a very conservative and extremist Salafi ideology which was against the values of personal freedom and dignity, and especially against women’s freedom and equality. Denying women access to the tomb of the Haji Ali dargah infringes upon the fundamental rights of the women guaranteed by the Constitution of India. Even if the Sharia says something which is contrary to the principles enshrined in constitution, it is the constitution alone which, as the supreme law of the land, should prevail over contravening personal laws. IL — The author has served as deputy editor of The Hindu

IS THAT LEGAL?

Freedom to Eat What a person wants to eat is a matter of personal choice. But we see bans being imposed. Isn’t choice of food a fundamental right? The freedom to eat what one wants to is a fundamental right under Article 21 of the constitution and can only be restrained under procedures established by law. The right could be curtailed or taken away only in the interest of the public at large or for maintaining the social fabric of India. India is a diverse country with varied religions, culture, traditions, ethnicity, etc. As such, food habits and preferences also differ

from place to place within the country. Therefore, there is a need to observe tolerance. Even the Supreme Court observed in Shree Tapagachiya Atma Kamal Labhdisuriswarji Gyanmandir Trust vs Bombay Mutton Dealer Association And Ors.

that “there has to be spirit of tolerance and accommodation. Some sensibilities are called for. It cannot be in the spirit of conflict. The spirit of tolerance is very important and it has to be inculcated in a very subtle manner…in a very sensible manner.”

No Room for Rent If anybody from a minority community is denied a house in a locality due to his/her faith, can the owner, or the office bearers of the housing society be taken to court? If one goes by the verdict of the Supreme Court in Zoroastrian Cooperative Housing Society Limited vs District Registrar Cooperative Societies (2005), the co-operative society is not “State” under Article 12

Penalty for Varsities If an overseas university, which offers distance education programs or conducts its courses in India through partners here, doesn’t come up to expectations, can students take legal action? Yes, in this case, the aggrieved students can appeal for action in Indian courts under the Consumer Protection Act 1986 or under the writ of Article 226 in the concerned jurisdictions of the high courts. The proposed Distance Education Council of India Bill 2014 also deals with the issue The Bill proposes that in case of a complaint filed before the Council or if the Council is satisfied that the varsity has violated any of

the said provisions or any direction issued by it, it may direct the institution to pay by way of penalty, an amount not less than `10 lakh but which may be extended to `50 lakh. Further, the Bill lays down that any institution which offers or gives admission to students through misleading or wrongful information in its prospectus or advertisements in the media or fails to publish disclosures as required by the Council, shall be liable to refund the fee so levied or collected; its illegal gains may be confiscated and penalty levied not less than `50 lakh but which may increase to `2.5 crore. The Council can also initiate criminal pro-

and therefore not bound by the duty not to discriminate due to religion under Article 15. In that case, the court allowed a housing society to rent and sell accommodation only to members of a particular religious community, citing the freedom of association under Article 19(1)(c) of the constitution. But having said that, Article 19(1)(c) can be subjected to “reasonable restrictions”, and parliament can make laws in that regard.

ceedings which may lead to punishment upto three years, in addition to the penalty already imposed by the Council.

— Answers by Shailendra Singh Illustrations: UdayShankar INDIA LEGAL October 31, 2015

CONTROVERSY/ Gurmeet Ram Rahim Singh

ONTROVERSY over the alleged blasphemous acts by the head of Dera Sacha Sauda, Gurmeet Ram Rahim Singh, has been ignited again with the decision of the Sikh clergy to pardon him. The move, many believe, is aimed at strengthening the chances of the ruling Shiromani Akali Dal to stage a third consecutive victory in the assembly elections less than a year-and-a-half away. The pardon to the Dera chief pertained to an alleged act of blasphemy in 2007. A section of Sikhs, particularly the radicals, had objected to Singh dressing in an attire believed to be worn by their 10th guru, Guru Gobind Singh. It was alleged that he was imitating the guru while distributing amrit (nectar) to his followers. Incensed Sikhs attacked several centres of the Dera. Finally, the Dera chief denied that he had sought to imitate any Sikh guru. However, the Sikh clergy comprising the head priests of the five holy Takhts, issued him a hukamnama to seek pardon and also ex-communicated him. Though the Dera chief wrote to the Sikh clergy explaining his position, he was not pardoned. Now, after eight years, he has been pardoned in a rather hush-hush move. Photos: UNI

I beg your Pardon...

Dera Sacha Sauda head Gurmeet Ram Rahim Singh is again in the news. After the Sikh clergy ex-communicated him in 2007, it has suddenly pardoned him. Is there a political motive behind this? By Vipin Pubby 54

October 31, 2015

SECOND FILM The decision to pardon Singh came in the wake of the release of his second film MSG 2: The Messenger of God late in September. Punjab had banned the first film in the series on the grounds that it would lead to protests and vitiate law and order. Lakhs of Dera devotees had then made a beeline to cinema halls in neighboring Haryana, Delhi and Chandigarh. The Dera claimed the film had grossed over `100 crore, a figure disputed by the film industry on the grounds that the tickets were purchased in bulk by the Dera. However, the film was screened in several cinema halls for over two months regularly. The present controversy started when the second film was released. This time, the Punjab government did not ban the film, but cinema hall owners and distributors alleged that it had unofficially sent a word around that the film should not be screened lest it lead to violence. A communication from an

official of a leading mall and multiplex owner to the producer said that they had received verbal orders not to screen the film. With the film being screened elsewhere, Dera followers started protests at several places and also met deputy chief minister Sukhbir Singh Badal. It is believed that a deal was stuck, as the protests were withdrawn immediately, and a couple of days later the Sikh clergy announded pardon to the Dera chief. Incidentally, Sukhbir Singh Badal is also president of the Shiromani Akali Dal whose candidates form a vast majority of members of the Shiromani Gurdwara Parbandhak Committee (SGPC). Significantly, it is the SGPC which appoints the Sikh clergy. Shortly after the pardon, despite protests, exhibitors started screening the film. Interestingly, the Dera has now claimed that the film is on the verge of grossing `200 crore—again, disputed by the film industry.

of devotees in Punjab. As per rough estimates, its followers have considerable influence in at least 40 of the 117 assembly segments in the state. In the past, the Dera had been claiming that it does not support any political party. However, it was well-known that it would silently spread the word among its followers to vote for a particular candidate or party. No wonder, candidates across party lines would visit the Dera to seek Singh’s blessing before starting their campaign. In the 2007 assembly elections, it’s believed that the Dera had pulled its weight in favor of Congress candidates. Though the Congress eventually lost to the SAD-BJP

Most observers see a clear political motive behind the grant of pardon to the Dera chief.

POLITICAL MOVE Most political observers see a clear political motive behind the grant of pardon and mending fences with Singh. The Dera claims the support of crores of devotees across the country and abroad. Although based in Sirsa, Haryana, the Dera has a huge number CONTROVERSIAL PARDON (Above) An MSG-2 poster (Left) People protesting the pardoning of the Dera chief

INDIA LEGAL October 31, 2015

CONTROVERSY/ Gurmeet Ram Rahim Singh

EYEING POLITICAL MILEAGE (L-R) Partap Singh Bajwa of the Congress; former Punjab chief minister Capt Amarinder Singh; deputy CM of Punjab, Sukhbir Singh Badal

Good work Despite the bad publicity that the Dera Sacha Sauda has got in the past, it has done yeoman service in the aftermath of the Nepal earthquake and the floods in Kashmir. It has also undertaken the marriage of sex workers, with its guru, Gurmeet Ram Rahim Singh, adopting these women as daughters and marrying them off to devotees who volunteer to do so. In addition, the Dera has been frequently organizing blood donation camps, afforestation drives, sanitation campaigns and marriages of poor girls. One of its latest decisions was adopting victims of acid attacks and marrying them to volunteers. The Dera has at least 17 Guinness World records, including largest eye health screening, most diabetes screenings and largest blood donation camp.

October 31, 2015

combine, it did well in Dera-dominated constituencies. Trouble for the Dera started shortly after the formation of the new state government, with reports of alleged blasphemy by Singh, who is also facing charges of rape, murder and forced castration. The Dera came into the focus again on the eve of the 2012 assembly elections. There was uncertainty over support from it even though candidates had been meeting Singh. In what was more than a coincidence, a blasphemy case against Singh was withdrawn two days before the elections in February 2012 from a Bathinda court. It is believed that it was a quid pro quo and SAD-BJP candidates received support from Dera followers, which partly helped the alliance to retain power. The Dera had come out in support of the BJP in the Haryana Assembly elections where the party registered its first-ever win last year. It is believed that it was the BJP which nudged SAD to mend fences with the Dera in view of the coming elections in the state. TURMOIL IN PUNJAB The current political turmoil in Punjab has seen the main opposition Congress witnessing a no-holds barred duel between former chief minister Capt Amarinder Singh and the state party chief, Partap Singh Bajwa. Also, there is a virtual split in the Aam Aadmi Party, which got four MPs from the state. There were also reports that the Badals were toying with the idea of calling for a dissolu-

tion of the assembly and seeking early elections to capitalize on their popularity. They might be waiting for the outcome of the Bihar elections to take a final step. The Dera, meanwhile, is exulting in the success of its second film and is planning a sequel. Reports say it may have Hrithik Roshan in some role. The two films produced so far are basically a documentary on the Dera and its chief with lavish sets. The Dera, which allows its followers to practise any religion they wish, does take an undertaking from them that they will shun drugs and other intoxicants and live a simple and spiritual life. It is well-known for its contribution to social causes and has a lakhstrong volunteer force which is despatched wherever any calamity strikes. (See box) Meanwhile, some Sikh organizations had called for a bandh to protest against the pardon given to Singh. However, it did not evoke much response. These groups have decided to meet again next month and call for Sarbat Khalsa (congregation of general Sikhs) to oppose the pardon granted by the Sikh clergy. They have also demanded removal of the five Sikh head priests. In an attempt to defuse the situation, the head priest of the Akal Takht has decided to form an advisory committee which would advise the Sikh clergy on important decisions. The SAD-BJP alliance will have to wait and watch for any further reaction from radical Sikhs to the issue. IL

SOCIETY/ Communal Atmosphere

Writers and their Angst A movement to regain freedom and secular space has begun. Already some dozen writers have given back their Sahitya Akademi awards. Why is the PM silent? By Ajith Pillai

HERE is a new churning within the country that should send a strong signal to the government and the larger Sangh Parivar and its supporters. As we go to print, a dozen writers have already returned their Sahitya Akademi awards protesting the “rising intolerance” and the “communal” atmosphere prevailing in the country. Their protest has been triggered by two flashpoints: The killing of rationalist writer MM Kalburgi; and the Dadri incident in which 50-year-old Mohammed Akhlaq was killed and his family attacked on September 28 by a mob for allegedly having beef in his house. Among the writers who have registered their displeasure are the likes of Nayantara Sahgal, Shashi Deshpande, Ashok Vajpeyi, Sara Joseph, Rahman Abbas, Uday Prakash and Gurcharan Singh. Their action should be seen as a significant intellectual awakening which cannot be ignored since it can have far-reaching consequences. Already writers, poets and intellectuals from across the country have joined what can best be described as a movement to regain freedom and secular space. Former West Bengal governor and Mahatma Gandhi’s grandson, Gopalkrishna Gandhi put it rather succinctly when he told an interviewer: “I don't remember an earlier occasion when without a formal conference resolution, writers have returned their Sahitya Akademi awards…. If writers and dissenters don’t protest, who will? They have suddenly found their voice. This is a landmark moment that will be remembered in association with the murders of rationalists and the murder of Akhlaq.”

Documentary filmmaker Anand Patwardhan, who appeared on a TV discussion over the weekend, pointed out that what the nation was witnessing was more sinister than the Emergency. He had fought against it and recalled how personal freedom was then at stake but there was no attempt to alter the cultural ethos of society. That, he said, was systematically being done now with the government’s backing.

ncidentally, Nayantara Sahgal returned her award with a signed note which she concluded with the following dedication: “In memory of the Indians who have been murdered, in support of all Indians who uphold the right to dissent, and of all dissenters who now live in fear and uncertainty, I am returning my Sahitya Akademi Award.” She also blamed Narendra Modi for his silence. “The Prime Minister remains silent about this reign of terror. We must assume he dare not alienate evil-doers who support his ideology," she said. As voices of protest grow, the Sahitya Akademi, which has been roundly attacked for not taking a strong enough position on Kalburgi’s murder, has been on the defensive. But its tepid condemnation of the writer’s killing, allegedly by members of the Hindu fringe, has not quite cooled tempers. Neither has the government’s silence. IL

SCRIPTING DISSENT Nayantara Sahgal returned her Sahitya Akademi Award

INDIA LEGAL October 31, 2015

INTERVIEW / Prof Tahir Mahmod

“No Govt Interested in Codifying Muslim Personal Law” A 1939 Act enacted by the British said that Muslims would be governed by their personal Law (ie, the Shariat). The Shariat allows Muslims to follow their rites of passage in accordance with Islamic practices, be it marriage, divorce, children’s custody or inheritance. However, the Shariat is not codified, which means that whatever guidelines are spelt out in the Quran and Hadith have not been spelt out in Hindi/ Urdu/ English and vernacular languages like in all laws. Prof Tahir Mahmod, former member of the Law Commission of India, has been a strong proponent of codification. He speaks to SABIHA FARHAT about why this has not been done so far.

What is your opinion on codification of the Muslim personal law? Codification of the Shariat is the need of the hour. India is a country of personal laws and every community has them. Hindu law is also a “personal law” despite the word personal not being used. It has four acts, representing Hindus, Buddhists, Sikhs and Jains. Christians and Parsis too have personal laws. But they are all codified, so there aren’t many problems. As the Muslim personal law is not codified, a judge has to look up several books. And these books are based on old cases. In most cases, the law has been misrepresented, so what is in practice is not really personal law.

October 31, 2015

Maulanas are opposing codification.... They have a single-point agenda: How to keep Muslims socially backward. For the past 43 years, all they have been worried about is whether the Supreme Court has stopped any man from divorcing his wife by pronouncing “talaq, talaq, talaq”. And successive governments have opposed change by pandering to maulanas because they need votes. I have been writing about the need for reforms in Muslim personal law for 50 years now. A Muslim group has formulated a draft of the codified Muslim personal law.... Codification is a process which can only be done by parliament through legislation. Private codification has no meaning. Only the state can do it. In 1995, the Supreme Court gave a sound judgment in the Sarla Mudgal case. It told the government to entrust the work of codification of the personal law of minorities to the Law Commission of India, with the instruction that it should prepare the draft in consultation with the Minorities Commission. What can be a better mechanism?

Today, 20 years and many government changes later, they still haven’t done it. No government will bring an official bill because that will compromise its political interest. What about countries like Pakistan and Bangladesh? In matters of personal law, they are much more advanced than us. In fact, the entire Muslim world, except Saudi Arabia, has reformed personal law. Since 1972, I have been translating acts passed in other countries to reform personal law into English. Fortunately, I know Persian and Arabic. My first book, Family Law Reform in Muslim World, was a compilation of changes in Shariat. In fact, a Personal Law Board was set up that year as a reaction to the book. But nothing has been done on this issue.

As the Muslim personal law is not codified, a judge has to look up several books. In most cases, the law has been misrepresented.

TAKE A STEP FORWARD (Left) Codification will bring greater clarity to rights of Muslim women INDIA LEGAL October 31, 2015

INTERVIEW / Prof Tahir Mahmod

Hadith, a supportive text) is full of directions for Muslim men to marry widows or divorced women. It says that marrying a widow or a divorced woman is better than marrying young, eligible women. Who does it?

VEIL OF TRADITION Muslim leadership has prevented codification, thereby hindering progress and equality for Muslim women

October 31, 2015

And you say that India is much worse? Yes. Nowhere does divorce take place by merely saying “talaq, talaq, talaq”. And India has among the largest population of Muslims. It is a very complex situation as no government is interested in this. The Law Commission, despite directions from the Supreme Court, has not worked on it What does the Shariat say on inheritance of property by women? When the Quran was written some 1,500 years ago, it was brilliant. A daughter was given half the share of what was given to the son. It was for the first time in history that women had a right to inheritance. Forget reforms for the time being, at least practice what is given. Hadith (Shariat is derived from the Quran and the

How can we reform the Shariat then? It is very simple. I will give you an example. There is a Muslim Marriage Dissolution Act (1939). It suggests by its very name that it must be for all Muslims. But it is only for Muslim women. This law provides the grounds by which a woman can obtain a divorce from court. It states: “Any woman married according to Muslim law can obtain a divorce….” We only need to add one word here— “Any woman or man married….” This way, we can get rid of the entire talaq issue and make the law equal for all. This is how it is for other communities. So we don’t need any new laws, only minor additions and deletions. And this is what I have written in reports submitted to the Law Commission. These acts, like the Muslim Marriage Dissolution Act, were passed by the central legislature; just add the word “man” to it. When the Muslim Women Act was drafted, the law minister referred it to me. I just changed a few words to create the scope for maintenance after the period of separation. The draft presented by maulvis had said: “Maintenance for the period of separation (before final divorce).” I just changed it to “maintenance during the period of separation”. You can imagine the implications. This law has been interpreted by the Supreme Court to obtain maintenance even after divorce till she remarries. This is supported by the Quran too. Nowhere does it mention that women cannot get maintenance after divorce. I can challenge the maulvis on this. What about a uniform civil code? That is a utopia. Is there a draft of this? The Modi government will not bring it in. The most favorable aspect of Hindu society is its “joint family” system as the Hindu joint family gets special relief in the Income Tax Act. Will the Hindus give this up? Under a uniform civil code, this provision will have to go as no other community has a “joint family system”. All those who talk of a uniform civil code, would not have read the provisions of it in the Indian constitution. IL

FIGURE

IT OUT Indians number 127,42,39,769, forming 17.25 percent of the global population. There are some 40 crore children in the country.

The level of women’s education in India witnessed a sharp rise between 2001 and 2011, with 116 percent more women passing out as graduates or above as compared to just a 65 percent increase among men.

As per the National Crime Records Bureau, the country has recorded 3.48 lakh cases of cruelty by husbands or inlaws in the past three years. West Bengal tops the chart with 61,259 such cases, followed by Rajasthan (44,311) and Andhra Pradesh (34,835).

95 percent of India’s 1.27 billion citizens still qualify as poor or low-income. Globally, the equivalent proportion is 71 percent. As far as middle-income Indians go, only 2 percent of the country actually falls into this zone, compared to 13 percent of the globe.

More than 72 lakh cases relating to crimes, including murder, rape and riots, are pending in different courts across the country, with Maharashtra having the highest backlog of over 13 lakh. Gujarat was second with more than 8 lakh cases.

Snake bites kill 46,000 Indians every year. Some 2.5 lakh snake bite cases are registered every year.

Some 10,670 Indian kids were kidnapped in 2010. Seven people die every day in India due to structural collapses, including houses, buildings, bridges and dams. 2.5 lakh farmers committed suicide in the last 50 years. Sixteen Indians died in road accidents every hour in 2014, most of them on twowheelers, and a majority of them as a result of overspeeding and careless driving. Some 61,000 millionaires moved out of India in the past 14 years. Almost 1.5 lakh people in India need a kidney but only 3,000 of them receive one. About 90 percent of people on the waiting list die without getting an organ transplant.

India is one of the fastest-growing outbound travel markets in the world, and the number of Indian tourists travelling abroad is set to rise from 15 million currently to about 50 million by 2020. The number of football viewers in India has risen tremendously from 83 million in 2008 to 155 million in 2012, and has only been on the rise ever since. For every 2,000 patients, the country has only one doctor. The total number of doctors (allopathic) registered in the country till July 31, 2015, is around 8,56,000, out of which six lakh are presently active practitioners. 79 percent of India’s metropolitan cities have very high levels of particulate matter and nitrogen dioxide, the main causes of air pollution. About 100 million Indians don’t have access to safe sources of water. —Compiled by Mahesh Trivedi

INDIA LEGAL October 31, 2015

INTERVIEW/ AAI Chairman/RK Srivastava

â&#x20AC;&#x153;AAI has the capacity to mobilize funds to set up airportsâ&#x20AC;? Anil Shakya

RK SRIVASTAVA took over as chairman of the Airports Authority of India early this year. The 1984 IAS batch officer from the Jharkhand cadre talks to Managing Editor RAMESH MENON about the challenges he faces and the road ahead. Excerpts: What were the major challenges you encountered when you took over? AAI is a large organization with a panIndia presence. Being a public sector undertaking, it is constrained with the rigid framework of government policies that need to catch up with ever-changing global trends and practices. We want to bust the myth that the public sector is inefficient. As we facilitate air transport, we have been facing several challenges. We met them by creating infrastructure in Tier-II and III cities, improving operational efficiency of the terminals, providing better amenities to passengers, strengthening the safety measures and building a capable workforce. We have adopted multi-pronged strategies, enhanced internal capacity and employed external resources.

When did the government realize that airport modernization should be a priority? After the opening up of the Indian

October 31, 2015

WORLD CLASS Swanky interiors of the Kolkata Airport

economy, a phenomenal surge in GDP growth was accompanied by an unprecedented surge in air traffic. Since 2003-04, the government decided to modernize airports and drew a road map for the construction of new terminals as well as expanding and strengthening the existing ones along with the related infrastructure.

In the next 10 years, how many airports will India need? Are we doing anything to achieve this goal? Going by the statistics, India has about 464 airports and airstrips, out of which AAI manages 125 airports. About 76 airports have scheduled flight operations. Most of the state capitals and big cities have got an airport, except Arunachal Pradesh. Over the last five years, the cumulative Compound Annual Growth Rate (CAGR) has been around nine percent, resulting in impressive growth in air traffic. In the last six months, traffic growth over the previous years has been 18 percent. There has been a substantial increase in the movement of aircraft and cargo as well. Going by the thumb rule, the rate of increase of air traffic is 150 percent of the GDP growth rate. As the economy grows further, pas-

“AAI is a large organization with a pan-India presence. We want to bust the myth that the public sector is inefficient.” senger growth will saturate existing infrastructure unless expansion of the airports is undertaken to match the growing demand. The present traffic is around 190 million against the capacity of 250 million passengers created over the last few years. AAI, therefore, envisages making all its airports operational and further enhance the capacity of its terminals. We are also actively engaging with state governments to develop new Greenfield airports. We are working towards making a paradigm shift in our strategy to develop new airports through Special Purpose Vehicles (SPVs), in which the state governments’ PSUs and the people at large are stakeholders. This will go a long way in improving regional connectivity and in developing airports in remote areas by activating currently unused airports.

What role do airports play in helping the local economy? Will the concept of an Aerocity take off in India? The development of airports in any area has a direct bearing in boosting the local economy. At the construction stage, for an investment of around a crore of rupees, employment of approximately 17,000 man days is created. At the operational stage, employment is generated for a thousand people if an airport handles a million passengers. AAI has already taken up development of 26 airports like Agatti, Akola, Leh, Pantnagar, Vijayawada, Tezu, Kishangarh and Hubli. Fourteen airports have been completed, six are in progress and another six are in the planning stage. The government has also given the green signal for the development of 14 new Greenfield airports, of which Pakyong near Gangtok in Sikkim is being developed by AAI. The concept of an Aerocity in India is now catching up. In fact, if you see the AAI Act, it is more developmentand operation-centric. The development of transport infrastructure in India has always been seen as a welfare measure. Giving a commercial dimension to such development for realizing the CAPEX (capital expenditure) INDIA LEGAL October 31, 2015

INTERVIEW/ AAI Chairman/RK Srivastava

and OPEX (operational expenditure) is now increasingly being recognized. You may witness this in the development of highways, where realization of capital expenditure through toll tax is emphasized. The concept of an Aerocity has been introduced for the first time in Delhi. In Durgapur and Chandigarh, large chunks of land have been acquired on the outskirts of airports for the development of aerocities, with the airports becoming the nucleus for growth. AAI has already taken up feasibility studies of Lucknow, Raipur and Tirupati airports. The PM is talking of Digital India. What kind of e-systems do you see in airports in the next five years? In today’s world, airports across the world are digitally connected and that

is how the journey from one part of the globe to another has increasingly become seamless. The interface with airport operators and airlines with passengers is increasingly getting reduced due to technology. AAI is going to introduce automated self-check-ins and baggage drops. It has also set up Airport Operations Control Centers (AOCCs) at 10 places for collaborative decision-making.

Do you think you are adequately staffed to handle the load across airports? For most of the activities at airports, we need highly technical and skilled staff. With the introduction of new technology in operations and navigations, the requirements and qualifications of the staff have undergone

“There has been a substantial increase in the movement of aircraft and cargo. Going by the thumb rule, the rate of increase of air traffic is 150 percent of the GDP growth rate.” ETHNIC TOUCH Interiors of the Chennai Airport

October 31, 2015

changes. With an increase in traffic volume, work regarding management of Air Navigation Services has increased. We have been doing the exercise on a continuous basis to meet such requirements. In the near future, AAI will be adequately staffed.

What are some of the safety and security features that you are contemplating at airports? AAI is focused on making air navigation safe for air travel. We have been continuously upgrading safety measures by introducing latest equipments and procedures. Similarly, the focus has been on strengthening the security features at the airports by equipping security personnel with new gadgets and comprehensive training. All the standards and features determined by the Bureau of Civil Aviation Security (BCAS) are met at every airport.

Do you see airports as a sunrise industry in India? What are the possibilities of small private and corporate aircrafts plying?

What are the international MoUs that AAI has signed?

Air transport is a sunrise industry with increasing volume of GDP and expanding reach. There is a demand for development of new airports in every nook and corner of the country. With the new Civil Aviation Policy, new vistas regarding inter-state and intra-state air connectivity and growth in the private and corporate aircraft sector are likely to open. It is likely to boost commercial operations in small places and places of tourist importance. Certainly, the demand for smaller private and corporate aircrafts will increase.

AAI has sought branding in Delhi and Mumbai airports. What has happened to it? Are the private airport operators there like GMR and GVK respectively ready to share the limelight with AAI? AAI does have a brand of its own. GVK and GMR are partners in the SPVs created for development and operation of the airports at the political and commercial capitals of India. This experiment of managing two airports with private partners has been a success story. The development and management of infrastructure, particularly in the transport sector, have been evolving in India and has taken on a new commercial dimension. Aviation, however, is the only sector where direct investment from the consolidated fund of India has been minimal. AAI, over a period of time, has established itself as a financially viable proposition. I expect that AAI, with its own standing, can mobilize enough funds from its internal resources and from the market to set up airport infrastructure. With the capacity development of people involved in the operation, we can meet the challenges of running airports efficiently as well.

Was it a good idea to privatize certain airports considering that it has proved costly for fliers with all kinds of charges thrown in? Privatization of airports was taken up

AAI has signed several MoUs with IATA for “Skill Development in Airport Management as per Global Standards” & “ATC E&F Agreement”, with ACIICAO for the “Aviation Management Professional Accreditation Program”.

AAI’s has some special plans for PM Narendra Modi’s constituency, Varanasi. What are they?

“Expansion of airports is imperative because of increase in traffic.” in the middle of the last decade at a time when air traffic in India witnessed an unprecedented growth following the entry of low-cost carriers. Traffic growth necessitated the sudden expansion and modernization of airports. At that time, two serious issues emerged—availability of funds and capacity to build infrastructure. That necessitated modernization and expansion of Delhi and Mumbai airports through the SPV route. The investment required to modernize these airports led to an increase in airport charges in the initial control period. However, it is expected to come down in the subsequent control periods.

Many of AAI’s skilled employees have joined private airport operators like GMR and GVK. Isn’t this a loss for AAI? In today’s world, migration of skilled employees from one organization to another is the order of day and we should learn to live with that.

Varanasi is a very important international tourist destination, being a spiritual capital and a holy destination for Buddhists. AAI proposes to construct a new ATC tower and extend the runway for Code ‘D’ (B-767) type of aircrafts. We have approached the state government to provide about 593 acres of land to provide ILS and Cat III B landing facilities. We also propose to extend the runway and expand the apron. Further, we plan to undertake city-side development in order to provide hotels, restaurants and set up aviation-related activities.

What about technological upgradation matching international standards? AAI has been very pro-active in introducing the latest technology in its operation and navigation services. For CNS and ATM (Communications, Navigation, Surveillance and Air Traffic Management), new equipment with the latest technology have been brought in. We have embarked upon Air Traffic Flow Management. We have executed the coveted project of GPS aided Geo Augmented Navigation (GAGAN) system, which has been operationalized after due certification from the DGCA. This has catapulted India amongst the first four countries in the world to have adopted satellite-based navigation. The newly introduced ADS-B technology provides improved surveillance of the entire airspace. IL INDIA LEGAL October 31, 2015

DIPLOMACY/ Italian Marines’ Case

The Rome Complication The killing of two Kerala fisherman off the Indian coast by Italian marines has become an international issue. All cases are on hold and a lot depends on the international tribunal’s verdict whether it has the power to arbitrate on the matter By Papia Samajdar

N February 2012, 20.5 nautical miles off the coast of Kerala, two marines—Massimiliano Latorre and Salvatore Girone—in an oil tanker flying an Italian flag had shot dead two unarmed Indian fishermen. They claimed the fishing boat was on a collision path with the tanker, hinting at the likelihood of the boat being a pirate vessel. Twenty rounds of automatic ammunition were fired by the marines although not even a single bullet flew back their way. The tanker, MT Enrica Lexie, had taken off from Sri Lanka and was headed to Djibouti (Africa), carrying a crew of 34 accompanied by six Italian marines. The Italians maintained they feared pirate attacks, though there were no alerts on that day, February 12. Italy also asked for diplomatic immunity for the two marines as they were on duty serving the government of Italy. However, diplomatic immunity under the United Nations Convention on the Law of the Sea (UNCLOS), 1982, is not applicable to officers on commercial ships, and hence India (Kerala Police followed by the Union of India)

October 31, 2015

charged the marines under IPC for murder. The Italians have been contesting the investigation and the jurisdiction of the Kerala Police, the Kollum district court, the Kerala High Court and the National Investigation Agency at the Union level. A special tribunal had to be set up by the then Congress-led UPA government when it decided to take over the case. In the judgement to the writ petition filed in India’s Supreme Court by the Italians, contesting the legality of Kerala Police’s right to investigation, the chief justice of India (CJI) held: “Admittedly, the incident took place at a distance of about 20.5 nautical miles from the coastline of the State of Kerala, a unit within the Indian Union. The incident, therefore, occurred not within the Territorial Waters of the coastline of the State of Kerala, but within the Contiguous Zone, over which the State Police of the State of Kerala ordinarily has no jurisdiction.” While commenting on the stand taken by the Union of India and Kerala, the CJI observed that “the State of Kerala had no jurisdiction over the Contiguous Zone and even if

CROSSING LIMITS? Italian marines Massimiliano Latorre (left) and Salvatore Girone have been accused of killing two Kerala fisherman on the high seas

the provisions of the Indian Penal Code and the Code of Criminal Procedure Code were extended to the Contiguous Zone, it did not vest the State of Kerala with the powers to investigate and, thereafter, to try the offence. What, in effect, is the result of such extension is that the Union of India extended the application of the Indian Penal Code and the Code of Criminal Procedure to the Contiguous Zone, which entitled the Union of India to take cognizance of, investigate and prosecute persons who commit any infraction of the domestic laws within the contiguous Zone.” On the legality of the jurisdiction of the Union of India, the court maintained that “while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the

two Italian Marines under the criminal justice system prevalent in the country.” International Tribunal for the Law of the Sea has passed an interim order asking the states involved to suspend all proceedings regarding the case, until it is clear whether the tribunal has jurisdiction in this case. Politically, India can’t take a back seat. The case has become a high-profile one with the media watching over it like a hawk on all the developments—including political and diplomatic efforts to bring the perpetrators to justice. Though India has tried to pacify the Italians through diplomatic means, the latter have remained bull-headed, denying Indian jurisdiction in the case. The Italians maintain that since the incident happened in the high seas, due to the threat of piracy, and because the officials were on state duty on board a ship flying an Italian flag, the case should be tried under the Italian law. Although murder under IPC is a non-bailable offence, the center, which took over the case after the Italians refuted the Kerala High Court’s jurisdiction, not only gave bail to the two accused marines, but also allowed

The International tribunal has given its first decision asking both India and Italy to suspend the trial. Both the countries have made their submissions as was mandated. The president of the tribunal may ask for more documents before issuing the order.

INDIA LEGAL October 31, 2015

DIPLOMACY/ Italian Marines’ Case

“I have searched and can find no provision in the articles of the Convention to support the submission that a case of murder... involving accused of one State and victims of another can be tried by an international tribunal.” — Judge Lucky, one of the judges hearing the case in UNCLOS

ALL AT SEA? The Italian commercial oil tanker, MT Enrica Lexie

them to fly back to their country to vote, for Christmas and for medical treatment. The Indian government has been falling over itself to make sure none of the civil liberties of the marines are compromised even when they are charged with murder. Italy, unhappy with the application of Indian jurisdiction and facing pressure at home, did not even wait for the Supreme Court ruling on August 26, 2015, which halted all court proceedings against the marines. It even appealed to the International Tribunal for the Law of the Sea under Article 290 para 5 of UNCLOS seeking provisional measures. Italy demanded that (a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie incident on the high seas, and from exercising any other form of jurisdiction over what transpired, (b) India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal. The tribunal, according to Article 290 of UNCLOS (if it has prima facie jurisdiction), may prescribe provisional measures if it considers appropriate. However, the question that one may ask here is: Is there sufficient reason for a prima facie case?

The UNCLOS tribunal does not have the jurisdiction to try this case, as it is a domestic murder. The murder of the two fishermen happened on an Indian boat, off the Indian shore, on the Indian contiguous zone, impacting the Indian people. Though UNCLOS is not explicitly clear about crimes such as these, one must refer to the dissenting note of Judge Lucky, one of ten judges hearing the Enrica Lexie incident case at the international tribunal. He observed: “For the avoidance of doubt, and to support my view that an Annex VII tribunal will not have jurisdiction to deal with this case, I have searched and can find no provision in the articles of the Convention to support the submission that a case of murder in the EEZ involving accused of one State and victims of another can be tried by an international tribunal. This is a matter for the domestic court of the relevant forum. Municipal or domestic courts have the experience to hear and determine criminal cases.” Criticizing Italy for dissenting with the conduct of the Indian jurisdiction, Judge Lucky also notes it as an abuse of process. “It seems apparent to me that Italy engaged the Judicial system of India with several applications, for bail, conditions of bail, jurisdiction and for a stay of investigation and a stay of judicial proceedings. All these applications were addressed by the Supreme Court during the past 3½ years. In July this year Italy filed this case for provisional measures notwithstanding that the Supreme Court of India is considering the matter and a Special Court has been established to hear and determine issues relating to jurisdiction and related matters. I find that an abuse of process is evident.” The debate on jurisdiction may get resolved when the tribunal takes a call on its jurisdiction in the case. It has given its first decision by asking both Italy and India to suspend the trial. Both the countries have made their submissions to the international court as was mandated. The president of the tribunal might ask for more documents if needed, before issuing the order. IL — The author was senior communication officer with Centre for Policy Research

October 31, 2015

HEALTH/ Multiple Sclerosis

Cracking the MS code

Students of IIT Madras have developed an algorithm that can help detect multiple sclerosis, a chronic disease affecting the nervous system and affecting 2.5 million people globally By Murali Krishnan

ROUP Captain Prabhal Malakar suffers from primary-progressive multiple sclerosis (PPMS) characterized by a steady worsening of neurologic functioning. He is 59, but for the last 18 years, he has had to counter a disease which is increasing in India and in the world. The earlier belief that MS in India was vastly different from that seen in the West has given way to the realization that they are more or less the same with minor differences. MS has increased in India in recent years

and estimates are that there are between one lakh to two lakh such patients in the 18-35 age group.The Multiple Sclerosis Foundation estimates that more than four lakh people in the US and about 2.5 million people around the world have MS. About 200 new cases are diagnosed each week in the US and radiologists have discovered that rates of MS are higher farther from the equator. Malakar, who is also the honorary secretary of the Delhi chapter of Multiple Sclerosis Society of India, is happy to learn about the new research done by engineers for timely

BREAKTHROUGH PROJECT (Above) The IIT-Madras team that has developed the algorithm for timely detection of the disease INDIA LEGAL October 31, 2015

HEALTH/ Multiple Sclerosis

“The earlier you detect a debilitating disease like MS, the better for the treatment to start. The engineers have done marvelous work on this. Time is of essence for any treatment,” Group Captain Prabhal Malakar, a patient of MS for 18 years.

October 31, 2015

recognition. “The earlier you detect a debilitating disease like MS, the better for the treatment to start. The engineers have done marvelous work on this. Time is of essence for any treatment,” says Malakar. USING ARTIFICIAL INTELLIGENCE These engineers are students of Indian Institute of Technology (IIT) Madras and have developed algorithms using artificial intelligence that will help in improving diagnosis and treatment of glioma, a malignant tumour of the glial tissue of the nervous system and MS. The algorithms for image analysis are basically a tool for diagnosis and aid clinicians in judging the progression of the disease and the usefulness of therapy. There are four categories of MS: relapsing remitting multiple sclerosis (RRMS), secondary progressive multiple sclerosis (SPMS), primary progressive multiple sclerosis (PPMS) and progressive relapsing multiple sclerosis (PRMS). The commonest type of MS is RRMS. Symptoms vary from patient to patient, but people with MS can suffer from fatigue or electric-shock sensations and have problems with vision, muscle control, balance and speech. At times, attacks are followed by

periods of limited or complete recovery, but they can progress to permanent disability. “These algorithms can be used for automatic analysis of MRI images in large scale clinical trials and research studies. The accuracy of these algorithms has been evaluated independently,” says Ganapathy. Krishnamurthi, professor, engineering design, IIT-Madras. “What we have developed is a technique that will develop fast evaluation of therapeutic techniques using imaging modalities, especially MRI.” The primary research has been to develop algorithms that separate the images of tumors or lesions from the background. This would help machines identify lesions and troubled spots in the images and define them from the rest of the image. DEEP LEARNING TECHNOLOGY The team has used a technology known as “Deep Learning”, which is inspired by advances in neuroscience and is loosely based on the understanding of information processing and communication within the nervous system. It is an advanced branch of study called “neural networks” that seeks to enable machines to simulate human beings in recognizing pictures and sounds through interpretations of how the brain processes them. “Right now, our algorithm has been evaluated on a very small data set and based on that we are able to tell that this algorithm is doing well and giving us good results,” says Suthirth Vaidya, a student from the engineering team. Vaidya believes if the performance of this algorithm is put to use on a large data set, doctors will be able to use it on a day-to-day basis. While human beings can easily identify a person in different photographs, to enable a machine to do so would need very complex algorithms. If these algorithms are in place, the accuracy in recognizing the images is expected to be much better and faster. The next step in this endeavor would be to test extensively the effectiveness of the software and subsequently, deploy it for use by clinical collaborators. Based on the performance in a clinical setting, the engineers will try to get regulatory approval. Since

training accurate models require large amounts of data, ethical committee approvals from various hospitals would be required. The institute is in collaboration with the Thiruvanathapuram-based Sree Chitra Thirunal Hospital for Medical Sciences and Technology and is confident of seeing the product put to use in a span of two to four years. DIFFICULT TASK The team felt that accurate labeling of disorder-affected regions in the brain MRI could be a difficult affair due to its “complex shape and vague boundaries”. It is a mind-numbing task since radiologists cannot visualize in 3D and the task needs to be performed slice by slice. These methods, when implemented, can substantially reduce the time and cost for diagnosis of various brain diseases like MS. The algorithms for image analysis are basically a tool for diagnosis and aid clinicians to judge the progression of the disease and efficacy of therapy. Vaidya’s colleague Abhijith Chunduru was also part of the team that won the Longitudinal Multiple Sclerosis Segmentation challenge at the International Symposium on Biomedical Imaging in New York a few months earlier. Chunduru believes it would indeed be possible to bring

Labeling of the disorder-affected regions in the brain MRI is a mind-numbing task since radiologists cannot visualise in 3-D and the task is to be performed slice by slice. down the cost of diagnosis of MS. “This would help radiologists make very quick analysis and get quantitative numbers on how quickly or slowly the disease is progressing within patients,” says Chunduru. MS is the most widespread disabling neurological condition of young adults around the world. There are relapsing and remitting types of MS and progressive types, but the course is rarely predictable. Unfortunately, researchers still don’t fully understand the causes of MS or why the rate of progression is so difficult to determine despite millions of dollars being pumped into research for many years. Krishnamurthi believes that the clinical trials to assess the effectiveness of the software is crucial. “Yes, these algorithms will play a very good role, especially five years from now when we would have got over the bumps and problems. That is our belief,” he adds. That would come as a big relief to many MS patients. IL

(Above) A scan of the progressive neurological disease

INDIA LEGAL October 31, 2015

SOCIETY/ Awadhi Cuisine

Legacy of the Nawabs The great, great granddaughter of Wajid Ali Shah, the last Nawab of Awadh, is all set to bring the family cuisine to the world. Does this lawyer and cook have a case up her sleeve? By Sujit Bhar in Kolkata

PRESERVING ROYAL CUISINE (Above) An illustration of Wajid Ali Shah

October 31, 2015

ANZILAT Fatima is the great, great granddaughter of Wajid Ali Shah, the last ruler of the erstwhile kingdom of Awadh. She is in her late forties, of composed bearing, displaying from deep within, her nawabi lineage and culture. Manzilat also happens to be a non-practicing lawyer of the Calcutta High Court (she graduated from law from the Aligarh Muslim University). And, though she has no cases on her plate, she is a very persuasive advocate of authentic Awadhi cuisine in her kitchen in Kolkata. The good news is that she plans to bring the flavor of genuine Awadhi cooking from the confines of her family to the world. She has been talking to prospective business

partners for her Awadhi food chain (she wouldnâ&#x20AC;&#x2122;t divulge any names), but before Durga Puja, she is planning a surprise. Kolkata would obviously be the first city to benefit from such a restaurant, and it seems Lucknow could be the next. Delhi remains the obvious entry into big time, later. Manzilat has already shown her keen desire to recreate some of the old favorites from the glory days of Awadh. To this end, she associated with a food blogger to organise a pop-up food fun at a Kolkata restaurant on March 1. It was a success, to put it mildly, with the word spreading quickly among foodies in the city of all the Awadhi goodies which were on offer. That was the seed. Now plans are afoot to take it to the great-banyan-of-an-idea stage.

The recipes to be featured in the prospective venture are those handed down to her family from her ancestor, Nawab Wajid Ali Shah. She insists that she is the descendant of the son of the Nawab’s chief begum, Hazrat Mahal. That means her family is not only his direct heir in matters of property and rights, they are also direct heirs in matters of any intellectual property that accrues. This includes the family recipes. Before Manzilat starts talking about her favorite topic—food—she begins with a quick disclaimer about Awadh cuisine: “We belong to the Shia community, our preferences regarding all things would be different from the Sunnis—the Mughals were predominantly Sunni—hence our taste-buds have developed differently as well.” She gives the example of the Muharram Hazari—generally a

“I am sure the original recipes are only with me, through my mother and grandmother. But people are free to experiment.” —Manzilat Fatima, great, great granddaughter of Wajid Ali Shah paratha with beef Ghutwaan kebab on top— and says that this developed a bit differently in Awadh, in UP, from the Mughal dishes further north. When she begins sharing details, one gets a clearer picture of Awadhi food with its moderate spices and enduring, unique aftertaste. She agrees that the current mishmash of recipes floating around households and restaurants have somewhat distorted the original basics, and that is why she is bent INDIA LEGAL October 31, 2015

SOCIETY/ Awadhi Cuisine

Wajid Ali Shah was a patron of the arts and a man of letters. He loved the good life and was passionate and particular about his food.

ROYAL HERITAGE (From top) Manzilat’s grandfather Mehar Qudr, and her father, Prince Kaukub Qudr

October 31, 2015

on presenting to the connoisseur the real taste of Awadh. “You see, the biryani, for example, as it was originally in Awadh, is more akin to what is now available in Kolkata,” she explains. “We, in this part of the country, have adapted our taste-buds to the Awadhi type, against say the Hyderabadi biryani. I cook the biryani here with mustard oil; some say it’s heresy, but I am determined to bring back the taste of history. I also use turmeric in small quantities.” She agrees that there have been others

claiming that the hereditary bloodline follows their families and this bothers her. “I am okay with others preparing and selling what they call Awadhi cuisine, especially our family cuisine. However, doing so while saying that the recipes are with them because they represent the direct bloodline is something I am not willing to accept. I am sure the original recipes are only with me, through my mother and grandmother. But people are free to experiment.” As in many royal family issues, this also seems to be slowly heading to the courts although no cases have been filed as of now. Manzilat explains how, despite Nawab Wajid Ali Shah’s many wives and concubines, her family derives the direct heritage. “Of his wives, Hazrat Mahal was the chief begum,” she explains. “And only the children of the chief begum gain the rights to heritage. That was how Birjis Qudr became the next king, followed by Mehar Qudr, and my father Prince Kaukub Qudr.” Now the title holder is Prince Suleman Qudr, whose son Kamran Ali Meerza, is the youngest prince in the family. She switches from lineage to food. “My mother had a great deal of those recipes, and traditions that were customary,” says Manzilat. “Take for example potatoes in biriyani. That was a no-no, in the Sultanate of Awadh. It spoils the purity of taste. But when the Nawab was exiled here, along with his huge family and entourage, it was a matter of feeding his followers, a matter of adding bulk, on a rather small allowance. And Bengal has always been a great potatoproducing state.” Pre-Raj history tells us that Wajid Ali Shah was exiled from his state when the British annexed his kingdom in 1856, a year before the Sepoy Mutiny. The Nawab spent his last years in Kolkata’s Mitia Bruj (Garden Reach) area, a broken man. He was a patron of the arts and a man of letters. He loved the good life and was passionate and particular about his food. One hopes that Manzilat succeeds in her new venture. Here’s to the slow-cooked pasanda kebab, the herbs in the nahari, the Ghutwaan kebab, and much more. Surely, the lawyer and cook in her will do justice to a cuisine with a very rich history. IL

CAMPUS UPDATE

NALSAR to host IDI session ALSAR University of Law, Hyderabad, is set to host the next session of Nobel awardwinning organization, the Institut de Droit International (IDI), in 2017. The event is being held in India for the first time since the inception of IDI in 1873. It comprises legal experts from across the globe. During the eight-day event, 125 members from 59 countries will discuss

legal issues of international importance. PS Rao, the first Indian to head IDI, said that every year the session provides solutions to legal conflicts that arise between countries. The next session will discuss mass migration to Europe, war crimes in the Middle East, bringing the Security Council’s decisions under the jurisdiction of international law and so on.

Workshop on teaching ethics cknowledging the importance of the role of teachers in value-building, National University of Law, Delhi will be conducting a workshop on “Ethics in Teaching”. It will sensi-

tize teachers about the various dimensions, influences and consequences of ethics and values in teaching. The workshop will be conducted between October 16-17.

IP Clinic at Nirma varsity n IP Clinic has been inaugurated at the Institute of Law, Nirma University. While inaugurating, former chair professor of West Bengal National University of Juridical Sciences (WBNUJS) Kolkata, Prof Shamnad Basheer, mentioned that the education system, where creativity and innovation are hardly respected, needs to change. Jatin Trivedi of Partners YJ Trivedi & Co, Ahmedabad, was present at the event. The IP Clinic will be providing IP counselling and

Convocation at NLU, Lucknow r Ram Manohar Lohiya National Law University, Lucknow, will hold its second convocation on October 31. The venue will be Dr BR Ambedkar Auditorium at the University. For the first time, students will wear safas and strolls, instead of gowns. The notification adds that students who

do not adhere to the dress code will not be allowed to attend the ceremony. A Gold Medal has been instituted for Best Performance in competitive examinations like UPSC/State Public Services for 2009 and 2010 batches. Uttar Pradesh Chief Minister Akhilesh Yadav will be the chief guest.

advisory services. Counselling sessions of various stakeholders, including the academia, industry, NGOs and enterprises will be organized to enable them to understand the implications of the IPR regime for day-to-day business.

INDIA LEGAL October 31, 2015

PROBE/ Doping

Everyoneâ&#x20AC;&#x2122;s Juicing Latest raids of undercover steroid labs suggest the market for steroids goes way beyond the world of elite athletes By David Epstein BEHIND THE FACADE OF FITNESS The urge to have a picture- perfect AN EMBARRASSED body has given a boost to steroid DRAGON consumption (Below) Investors at a brokerage house in Shanghai after Chinese stocks tumbled on July 8, this year

October 31, 2015

ARLIER this month (in September), the Drug Enforcement Administration announced that it had busted 16 underground labs and seized 134,000 steroid tablets and pills, 8,200 liters of injectable steroid liquid (that’s 140 kegs worth), and 1,400 pounds of the raw powder from which steroids are made. In Arizona alone, four labs and 150,000 doses of all types were taken by DEA agents in an undercover operation that spanned 20 states and four foreign countries. There are, clearly, a lot of steroids out in the world. Investigators suspect there are hundreds more labs churning out performance-enhancing drugs. According to the DEA, most of the material used to make steroids isn’t even in the US—it’s in China. As big as it was, the DEA inquiry offers a view through the smallest of keyholes of this illicit business. One reasonable inference from the amount of steroids seized might be: there must be a heck of a lot of athletes who are doping. And that’s true. This month, the British Parliament released a previously unpublished study by the World Anti-Doping Agency that used anonymous surveys to estimate the prevalence of doping at some recent competitions. It estimated that between 29 and 34 percent of the athletes at the 2011 world championships in track and field in Daegu, South Korea used performance-enhancing drugs that season. As many as half of the competitors at the 2011 Pan-Arab Games in Doha, Qatar had recently juiced, the study found. (I was at those Pan-Arab Games, and privy to the barely noted fact that nine gold medals were stripped before the event even ended.) Amazingly enough, world-class athletes are merely the fine layer of frost atop the iceberg’s tip when it comes to the steroid economy. To illustrate, and speaking of ice, take Iceland. As part of this recent operation, a lab was busted there. Iceland sent five athletes

total, all skiers, to the last Olympics. (Compare that to nine people who were arrested at the steroid lab.) It’s unlikely that an underground steroid economy in Iceland subsists on elite athletes alone. So who is driving this tremendous market?

ne answer is non-elite athletes. In years of reporting on performanceenhancing drugs, I’ve frequently been asked why athletes in smaller sports or facing lower stakes would dope, given that there’s little money in it for them. My answer: people like being good at sports, and anyone who has ever scheduled their life around training for a sport, no matter how big or small, would never have to ask that question. My alma mater, Columbia University, launched a steroid probe into the football team way back in 1988, when the team had not won a game in five years. Two players admitted to steroid use as part of that internal investigation. More than a decade later, while I was a Columbia student-athlete, two students were busted for selling steroids on campus, and one claimed he sold to an athlete. This is a university that gives no athletic scholarships and whose greatest sports successes (post-Lou Gehrig) have come in the pool, on the track, and in the fencing hall. I happen to know about these incidents only because I went there. And still, my reporting has shown that there are nowhere near enough sub-elite athletes to account for the booming trade in illegal steroids. So,

Amazingly enough, world-class athletes are merely the fine layer of frost atop the iceberg’s tip when it comes to the steroid economy.

INDIA LEGAL October 31, 2015

PROBE/ Doping

FIGHT TO THE FINISH (Above, L-R) The 2011 World Athletics Championships in South Korea has come under cloud for extensive doping Malaysia's badminton star Lee Chong Wei faces the prospect of a two-year ban after he tested positive for a banned drug at the World Championship in Copenhagen

Steroids are popular even in professions where physical strength is prized, such as police officers and soldiers. 78

October 31, 2015

again, who is driving this market? In my observation, the main customers for what’s being churned out of the illegal labs the DEA took down are gym-goers who want to get stronger and look different, supplemented by people in professions where physical strength is prized, such as police officers and soldiers.

or a 2008 Sports Illustrated article on steroids that I co-wrote with L Jon Wertheim, I spent several days in England with a man named Tony Fitton. Despite not having a college degree, in the 1980s Fitton was given a faculty position at Auburn University, in the National Strength Research Center.Fitton was already wellversed in steroid use. Years earlier, he had disrupted a study on the training effects of steroids when he began buying the treatment medication from other participants. At Auburn, Fitton’s job consisted mostly of helping legendary strongman Bill Kazmaier train. “I didn’t even have a bloody typewriter,” Fitton told me. He was, though, a rather brilliant kitchen chemist. He scoured pharmacology and medical texts, often experimenting on himself. He once noticed that a blood pressure drug in trials was causing a peculiar side effect—it made patients’ eyebrows grow together. Fitton figured that if the drug could regrow hair, he could sell it to steroid users to

UNI

help with the bald patches that sometimes develop from steroid use. Today, you know that drug as minoxidil, the active ingredient in Rogaine. Fitton was also providing steroids to elite athletes. In the course of reporting that story, several NFL players admitted they’d been his clients—but I was surprised by what I saw when I got my hands on his old business ledger, and other documents related to his dealings. The ledger recounted about a year of his sales, and while college football and NFL players, power lifters, professional wrestlers and bodybuilders were among the buyers, the ledger was filled with a diverse smattering of customers, from gym owners to policemen and soldiers to droves of guys who just wanted to have bigger muscles. Years later, when I met with a convicted steroid dealer in Florida who’d been selling to a chiropractor working with the Washington Capitals, he told me that police officers and military personnel were steady clients. And, while he also sold to some competitive athletes, he said that young men who wanted to change their physique comprised most of the demand. He, himself, began taking steroids after admiring Arnold Schwarzenegger carry-

ing a tree trunk in the 1985 film Commando. A year before that movie hit the theaters, Fitton was caught by a customs agent bringing steroids across the border from Mexico, and became the first person to be federally prosecuted for steroid smuggling. Steroids weren’t even controlled substances yet, but they did require a prescription, and he had more than 2,000 boxes worth of the steroid Dianabol in his car. In 1997, he was arrested again—he told me his supply was coming via commercial airline pilots who picked up steroids in countries where they could be purchased legally. By that point, Fitton had been arrested for steroid distribution three times, and had jumped bail twice. He was sentenced to four months in prison, but his punishment was delayed, because a legal dietary supplement company was happy to employ him and had arranged a chance for him to advise the Green Bay Packers on strength training. The Packers declined to comment on why the team would allow Fitton any contact with their players. Fitton, who was ultimately deported, might seem like an odd hire for a supplement company, but the supplement industry has a history of overlap with the steroid world. Patrick Arnold, the chemist who created

There is loads of money to be made, legal risks are minimal and there’s no shortage of people who want to look like the statuesque models they see in the magazines. designer steroids for BALCO, was better known in the workout world for having made muscle-building supplements, including androstenedione, the substance that first started performance-enhancing drug trouble for Cardinals slugger Mark McGwire when a reporter spotted it in his locker. At the time, it was legally available over the counter, and after it was mentioned in relation to McGwire in the news in 1998, sales reportedly exploded by 1,000%, thanks to people at home who wanted to be as muscly as Big Mac.

ick up any muscle mag at the grocery store, and you’ll get a sense of the target market. While many famous magazines are barely more substantial than pamphlets these days, Muscular Development, for example, can still stop a door. Past issues of the magazine have featured Q&A’s in which an expert will give specific

SILVER-SCREEN FANTASIES The image of Arnold Schwarzenegger carrying a tree trunk in the movie Commando drove many youngsters to imitate his fitness level

INDIA LEGAL October 31, 2015

PROBE/ Doping

and sometimes show photos of extremely fit and scantily clad women. An issue might feature a wide range of lifestyle advice to men, from the bizarre—don’t tattoo genitals because a medical report found (surprise!) there can be some unpleasant repercussions—to ads with the familiar tone of women’s magazine advice columns. One example gives four rules: “#1–Respect Gym Etiquette;” “#2–Train Hard & Listen More Than You Talk;” #3–Let The Women Come To You (Animal Instinct 101);” and “#4–Don’t Be Caught With the Wrong Supplements.” The content is tailored for men who want to be stronger, feel more energetic and better about themselves as well as turn the heads of women and other men. That, of course, is a far larger portion of the male population than the number of athletes dreaming of Olympic gold.

CAVEAT EMPTOR (Right) Muscular Development magazine is replete with information and guidance on steroid usage

The content of muscle magazines is tailored for men who want to be stronger, feel more energetic and better about themselves as well as turn the heads of women and other men.

October 31, 2015

“how to” advice on dissolving steroids for injection, or how long particular dosages will be effective, and how to limit the possibility of liver damage. Much of the magazine is filled with advertisements for dietary supplements that are clearly attempting to evoke steroid use. An advertisement for a website called legalsteroids.com shows products using nicknames of traditional steroids—“D-Bol” and “Winni-V” (Dianabol and Winstrol)—but with slightly altered chemical formulas from the familiar substances. Somatropin is a pharmaceutical name for human growth hormone; legalsteroids.com will sell you what it calls Somatroph HC. I asked an online customer service representative of the website how the company could make “legal steroids’’ and he said: “we’ve been able to take the effective parts of the illegal steroids and make it legal.’’ I’ve asked a company spokeswoman how, exactly, this is done but have not heard back. It remains unclear what’s in these sorts of products. Some supplements may actually be designer steroids. Supplement makers want their products to work, and the industry is lightly regulated, so steroids have been known to show up in over-the-counter products. The ads often depict muscle-bound men,

t is also a market segment that is destined to grow as the Baby Boomers age. The number of men in their 40s who got prescriptions for testosterone more than quadrupled between 2001 and 2011, according to data published by the Journal of the American Medical Association. And guess what’s often cheaper and easier to get than prescribed, pharmaceutical grade testosterone? Chemical analogs of testosterone — that’s what steroids are — that someone sells on the black market or markets as a dietary supplement. In the course of my reporting on this subject, I’ve bought both testosterone and illicit steroids sold as supplements. The latter was quicker and cheaper to get. Law enforcement agents and steroid peddlers I’ve spoken to over the years say there’s no end in sight to the burgeoning market for steroids. There is loads of money to be made, legal risks are minimal—steroids aren’t exactly DEA’s top priority—and there’s no shortage of people who want to look like the statuesque models they see in the magazines. IL

—David Epstein covers energy and environment issues as well as sports science. Prior to joining ProPublica, he was a senior writer at Sports Illustrated. Courtesy ProPublica

1. To big-note. A: To overspend B: To boast C: To donate D: To bribe 2. With-it. A: Fashionable B: Staying as paying guest C: Free D. Brotherly 3. Have the hots for. A: Be sexually aroused by B: Have skills for C: Have respect for D: Have ambition for 4. Loop-the-loop. A: Spiral staircase B: Kids’ game C: German lock D: Soup 5. Somniloquist is one who…. A: walks in sleep B: talks in sleep C: cries in sleep D: doesn’t get enough sleep 6. It’s monkeys outside. A: A huge crowd outside B: Very cold outside C: A traffic snarl outside D: Boss is waiting outside 7. Get stuffed! A: Do your homework! B: Get ready!

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

C: Get lost! D: Get the money! 8. Fear of depths. A: Vallophobia B: Bathophobia C: Hypophobia D: Daleophobia 9. Nature’s garb. A: Sunshine B: Nudity C: Bathwater D: Innerwear 10. One pair is wrong. A: Bed and board B: Ready and correct C: Wax and wane D: Bubble and rubble 11. Pearl anniversary is completion of …. A: 15 years B: 30 years C: 40 years D: 60 years 12. Humongous. A: No such word B: Kind C: Humane D: Huge 13. Hung up. A: Dead B: Retired C: Worried D: Drunk 14. Name fitting one’s

occupation. A: Pseudonym B: Aptronym C: Eponym D: Oronym 15. Short end of the stick. A: Severe punishment B: Inferior post C: Bad deal D: Advantage 16. Close but no cigar. A: Near miss B: Ring ceremony C: Man of principles D: Divorce 17. Crummy. A: Dirty B: Crumpled C: Fresh D: Despicable 18. Hot to trot. A. Popular B. Expensive C. Ill-tempered D. Ready 19. High-wire act. A: Suicide B: Risky task C: Death penalty D: Disappearing act 20. Say uncle. A: Respect B: Give up C: Repent D: Say sorry

ANSWERS

1. To boast 2. Fashionable 3. Be sexually aroused by 4. Soup 5. Talks in sleep 6. Very cold outside 7. Get lost! 8. Bathophobia 9. Nudity 10. Bubble and rubble 11. 30 years 12. Huge 13. Worried 14. Aptronym 15. Bad deal 16. Near miss 17. Dirty 18. Ready 19. Risky task 20. Give up

Y L D R WO ISE

SCORES

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

INDIA LEGAL October 31, 2015

PEOPLE / Children & War

TRACKED YOU Hungarian policemen reach out to a family of migrants with a baby as they try to run away in a railway station in Bicske, Hungary

I TRIPPED Police prevent migrants, mainly Syrians, from escaping from under a fence to board a train near Gevgelija, Macedonia. These trains will take them to Hungary

DIGGING IN A famished refugee boy at a border point in Hungary

MISS SUNSHINE A girl runs near damaged buildings in Jobar, a suburb in Damascus, Syria

OVERCOME BY GRIEF Relatives of a Palestinian woman, Riham Dawabsheh, mourn during her funeral at Duma village in the West Bank city of Nablus. She was killed in an arson attack

â&#x20AC;&#x201D; Compiled by Kh Manglembi Devi Photos: UNI

RNI No. UPENG/2007/25763

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

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